问题 问答题 简答题

房地产拍卖条件及主要交易规则

答案

参考答案:

一是判断拍卖标的是否符合国家法律法规、政策规定的转让和交易条件;或虽然不符合,但经政府有关部门审批后,通过补办手续和补缴费用可以转让和交易的

二是遵守房地产交易的相关规则

(一)、法律法规禁止买卖和转让的下列房地产通常不得拍卖

⑴未依法取得房地产产权证书包括国有建设用地使用权证书、房屋所有权证书和房地产产权证书的

⑵共有房地产,未经其他共有人书面同意的

⑶权属有争议,尚在诉讼、仲裁或者行政处理中的

⑷权利人对房地产处分权受到限制的,比如未得到政府批准的划拨土地转让,不符合条件的经济适用房、房改房的转让等

⑸以出让方式取得土地使用权,但不符合政府相关转让条件

⑹司法和行政机关依法裁定,决定查封或者以其他形式限制房地产权利的

⑺国家依法收回土地使用权的,如未按政府规定用途及时开发建设的或拆迁

⑻法律法规、规章规定禁止买卖、转让的其他情形

(二)以出让方式取得的建设用地使用权及其他地上建筑物拍卖条件和交易规则

⑴按照出让合同的约定支付全部土地使用权出让金,且依法登记并取得土地法使用权证或房地产产权证

⑵按照出让合同约定进行投资开发,属于房屋建设工程的,完成开发投资总额25%以上,属于成片开发土地的,依照规划对土地进行开发建设,完成供排水、供电、供热、道路交通、通信等市政基础设施和公用设施的建设,达到场地平整,形成工业用地或者其他建设用地条件

⑶转让房地产时房屋已经建成的,还应当持有房屋所有权证书

(三)以划拨方式取得的建设用地使用权及其他地上建筑物拍卖条件和交易规则

⑴以划拨方式取得建设用地使用权的,在进行房地产拍卖时,应当报请有关部门批准,由买受人按法律法规、规章的有关规定,办理土地使用权出让手续,并缴纳土地使用权出让金

⑵可以不办理出让手续的,应当由拍卖公司将拍卖标的所得收益中的土地收益上缴国家

⑶划拨土地需要转为有偿使用土地的,应按出让土地使用权价格与划拨土地使用权价格差额部分核算出让金

(四)以租赁方式取得的建设用地使用权及其他地上建筑物拍卖条件和交易规则

⑴承租人在按规定支付土地租金我,依法领取国有建设用地使用证,并按约定完成开发建设后,经土地行政主管部门同意或根据租赁合同约定,可将承租土地使用权转租、转让或抵押⑵地上房屋等建筑物、构筑物依法抵押,承租土地使用权可随之抵押,但承租土地使用权只能按合同租金与市场租金的差值及租期估价,抵押权实现时土地租赁合同同时转让

(五)农村集体所有土地上建成的房屋拍卖转让条件和交易规则

⑴房屋所有权和该房屋占用范围内的土地使用权已经依法登记取得房地产权证书

⑵集体土地上的房屋拍卖前应当向当地乡镇人民政府申请,获批准后方可进行拍卖

(六)已设定抵押权的房地产拍卖规则

⑴抵押期间,抵押人未经抵押人同意转让抵押房地产的行为无效

⑵债务履行期届满,债权未受清偿的,抵押人可以与抵押人通过协议以抵押房地产折价或者以拍卖,变卖该抵押房地产所得的价款优先受偿,协议损害其他债权人利益的,其他债权人可以请求人民法院撤销该协议

⑶抵押房地产折价或者拍卖、变卖后,其价款超过债权数额的部分归抵押人所有,不足部分由债务人清偿

⑷同房地产向两个以上债权人抵押的,拍卖、变卖抵押房地产所得的价款依照下列规定清偿:抵押权已登记的,按照登记的先后顺序清偿;顺序相同的,按照债权比例清偿;抵押权未登记的,按照债权比例清偿;抵押权已登记的先于未登记的受偿

⑸建设用地使用权抵押后,该土地上新增的建筑物不属于抵押财产

⑹房屋可连同占用范围内的划拨土地使用权一并抵押,但抵押权实现时,依法拍卖该房地产后,应当首先从拍卖所得的价款中缴纳相当于应当缴纳的土地使用权出让金的价款后,抵押权人方可优先受偿

⑺抵押人依法承包并经发包方同意抵押的荒山、荒沟、荒丘、荒滩等荒地的土地使用权,或者以乡(镇)、村企业的厂房等建筑物占用范围内的土地使用权抵押的,实现抵押权后,未经法定程序不得改变土地集体所有的性质和土地用途

单项选择题
单项选择题

Over lunch, a writer outlined a new book idea to his editor. It was to be a niche concern but promised much. The writer left the restaurant with a glow and decided to get an outline over soon. But days and weeks of being too busy turned to months and then, eventually, came the shocking discovery that his editor has been rather elusive of late for a reason: he has been busy crafting a book based on the writer’s idea, and it was now in the shops. An apocryphal tale, maybe, but it will send shivers down any writer’s spine. What’s more, if the writer were to turn to the law in such a dread scenario, the law would be of no use to him at all.
Phil Sherrell, a media lawyer with Eversheds, explains: "Intellectual property law protects the expression of ideas, not the ideas themselves." Sherrell agrees that "the distinction is not always satisfactory," but says that there needs to be a limit to the protection conferred on creativity by the law. "To extend the ambit of copyright protection to embrace ideas would be difficult in practice—how would the artist prove that they have conceived the idea if it has not been reduced to a tangible form It would also open the door to undesirably wide monopolies."
But copyright’s 300-year pedigree might be a cause for concern rather than veneration. The means by which we communicate has changed out of all recognition from the time when copyright was invented. Today, in the post-modernist world, what constitutes an artistic, literary or musical work is radically different, not least in the field of conceptual art. Here, copyright’s time-honoured reluctance to protect ideas is of dubious merit, according to Hubert Best, a media lawyer with Best & Soames.
"If you look at Martin Creed’s [art installation] Work No. 227, The Lights Going On and Off, where is the work" asks Best. "Is it in the fact that a light bulb goes on and off, or in the concept I suspect it’s the latter. But old-fashioned copyright law does not cover this kind of thing." Creed’s Work No. 227 was an empty room in which the lights periodically switched on and off. It won the Turner Prize in 2001 to a predictable chorus of controversy. This goes with the territory in conceptual art, but other artists have found their work inspires not merely lively debate but accusations of plagiarism.
Last year, three weeks after he unveiled his diamond-encrusted, 50m skull, Damien Hirst was alleged to have stolen the idea for the work from another artist, John LeKay. In 2006, Robert Dixon, a graphics artist, said that Hirst’s print, Valium, was too close for comfort to one of his circular designs in The Penguin Dictionary of Curious and Interesting Geometry. Hirst had another brush with intellectual property law when Norman Emms complained about a 1m bronze torso which, he said was copied from a 14. 99 plastic anatomical toy. Emms later received a "goodwill payment" from the artist.
As one of the world’s wealthiest artists, Hirst is well-placed to fight such battles, but due allowance should be given for art’s intertextual essence. Writers borrow plots and embed allusions to their forebears, artists adapt well-known motifs, musicians play each other’s songs and sample existing riffs and melodies. But there is a fine line between plagiarism, and creative allusion, and it was considered by the courts in the case of Dan Brown’s The Da Vinci Code. The Court of Appeal upheld the initial ruling that Brown had not reproduced substantial content from The Holy Blood and the Holy Grail. The decision was also widely seen as confirming English law’s disinclination to protect ideas.
Yet if ideas can’t be protected, where does that leave the writer aggrieved by the appearance of his idea in another’s book "It sounds harsh," says Sherrell, "but unless a writer has gone some way to creating the work—by way of an outline and perhaps a chapter or two—there is no remedy if the same idea appears under another author’s name. However, given that everything is done on computers these days, it would be relatively easy to prove first creation by looking at the hard drive. Other than that, anyone in the creative arena should keep full and dated records to evidence their work. "
There is another thing that can be done. "You can impose a confidentiality obligation on those with whom you want to discuss your idea," says Best. "Non disclosure agreements (NDAs) are often used in the corporate world to give a contractual remedy for breach of confidence if an idea is stolen. But the trouble is that a writer, musician or artist who comes into a meeting wielding an NDA isn’t likely to make friends. It’s a fairly aggressive way to proceed." Best is doubtless correct when he says. "You’ve just got to get on with it and do it. Once your work exists, in material form, you can sue if anyone steals it.\

Which of the following CANNOT be true about Damien Hirst according to the passage

A.He is one of the wealthiest artists in today’s world.

B.He paid Norman Emms to settle the issue of accusation of "copying".

C.He was said to have stolen the concept for his work of diamond-encrusted skull.

D.He is ready to fight all those who have accused him of plagiarism.