Avtalsstruktur och risk vid köp av nyproducerade bostadsrätter

Detta är en Uppsats för yrkesexamina på avancerad nivå från Lunds universitet/Fastighetsvetenskap

Sammanfattning: The housing market in Sweden has had a positive trend since the 1990s. In recent years, the market for newly produced condominiums has changed due to credit restrictions enforced by new legislation. To sell condominiums for new production, binding preliminary contracts (in Swedish: förhandsavtal) and special tenure contracts (in Swedish: Upplåtelseavtal) are used. In those contracts the seller undertakes to sell a condominium with tenancy rights and the customer to buy it. The real-estate developers find it more challenging to reach buyers who are willing to engage in binding preliminary contracts. Buying a condominium or real estate, in general, is the largest purchase a private person can do in life. This thesis is going to research if the so-called preliminary contracts and special tenure contracts are sufficient to cover the risk involved in such deals. This leads into the following questions: How does the contract structure look like in general? What are the risks in those contracts and are the contractors aware of them? Who bears the responsibility in the contracts? What outcomes can certain risks lead to? Those issues are examined in this thesis and at the end, suggestions are presented for improvements in the contracts used on the market for newly produced condominiums. These improvements could hopefully lead to a more reliable environment for all involved parties in the housing market. Being bound to a contract in a changing and uncertain market is not optimal, it can in worst-case scenarios lead to significant economic losses. In the case where the customer can no longer fulfil his obligations under the contract, he or she is put in a bad place, as indemnity is often the consequence. There are certain uncertainties in preliminary binding contracts for the customer and the developers, which some are beginning to acknowledge. This has generated scepticism on the condominium market. The goal of this thesis is to perform a risk analysis and identify any insufficiencies that can be exposed. Purchases of newly produced condominiums differ from other purchases in the housing market. It is a unique way to do a housing purchase because it is a tenure for an apartment, a usufruct without restriction in time. It is consequently regulated by special legislation in the Housing Law Act (in Swedish: bostadsrättslag), Swedish Law of Contracts (in Swedish: avtalslagen) and the Act on Economic Associations (in Swedish: Lagen om ekonomiska föreningar). Because the contracting parties are a housing-cooperative and a private individual, it is not defined as a consumer-business relationship in the contractual relationship. As a consequence, the buyer of newly-produced condominiums lacks the standard Swedish consumer protection legislation which exists for other housing investments. Example in the purchase of villas or second-hand transfer of condominiums they have another legislation and system to regulate the businesses. This thesis will perform risk analyzes of four preliminary contracts and four special tenure contracts, which are compiled as separate risk profiles. These risk profiles indicate whether there is risk and if so where in the agreements. The risks that were discovered were most often in the clauses regarding timeframes about the special tenure contract dates and the access dates. Unfortunately, these timeframes lack practice in the high court of Sweden. An additional risk was found for buyers as the contracts lacked so-called force majeure clauses. Two propositions are submitted as conclusions: • The introduction of force majeure clauses for both the buyer and real estate developers. • The introduction of penalty payment clauses for delays in construction. These suggestions are presumably best fulfilled as a new change in the Housing Law Act. This means those suggestions would be compulsory clauses to ensure the client's ability to include them in the contracts regarding newly produced condominiums.

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