부동산권리분석사 4강

4강 임대차(전세와 전세권) 이론 분석

1.임대차의 의의
전세 계약과 전세권 계약(등기을 해야한다)
등기를 안하면 전세다.
전세,반전세,월세
임대차의 의의: 임대차는 당사자 일방이 상대방에게 목적물을 사용, 수익하게 할 것을 약정하고 상대방이 이에대하여 차임을 지급할 것을 약정함으로써 그 효력이 생긴다.

2.전세권의 내용
전세권자는 전세금을 지급하고 타인의 부동산을 점유하여 그 부동산의 용도에 쫓아 사용 수익하며 그 부동산 전부에 대하여 후순위권리자 기타 채권자보다 전세금의 우선변제를 받을 권리가 있다.
-농경지는 전세권으로 목적으로 하지 못한다.
전세권 계약 시 전세권을 타인에게 전도하지 않는다 라는 특약을 맺어야 한다.
전세권은 물권으로 등기가 되어있어야 한다

3.채권적 전세/미등기 전세
보증금 담보로 주고 월세를 주지 않는다.
판례가 인정한다.

4.주택임대차보호법
주택은 주택임대차보호법, 상가는 상가임대차보호법
*민법,주택임대차보호법,상가임대차보허법인지 확인할 것
*미등기 전세에의 준용

5.상가임대차보호법
상가이지만 환산보증금 초과된 임대차분은 보호 받지 못한다.(원칙) , 예외 있음
*환산보증금(지역에 따라 다르다):보증금(순수보증금)+,월세(*100)
사업자등록증 신청하면 상가임대차보호를 받는다.
지역 구분: 서울은 4억,과밀억제3억,광역시2억4천만원,기타1억8천만

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