Other disputes involving housing sale contract dispute cases

                  

                                                          He Shaohua lawyer (Consolidation)

 

(a) to buy related problems by direct claim right disputes

Due to the sale of the contract process, the existence of the two sides is the debtor creditor relationship, the buyer can only be based on the contract, require the seller to perform its obligations under the contract, including the transfer of the ownership of the subject matter to the buyer. But ownership buyer not according to the contract for the sale and have direct object.

 

   Therefore, toThe seller does not perform the obligation of the transfer of property rights, the buyer can not directly request that the housing property rights to all its, only in accordance with the contract for the seller to perform its procedures for the transfer of property rights.The buyer is the case, it shall inform the interpretation of legal relationship, can change the claim.

 

 

(two) the relevant problems based on auction house sale contract dispute

The auction, is commissioned by the auction business franchise auction house to accept the owner, in a certain time and place, according to certain regulations and rules, through public bid bid, specific goods or property rights are transferred to the price of the stock trading mode should be the highest. In the case of related housing contract disputes, should pay attention to:

 

　　1In the aspect of the application of law. In accordance with the principle of special law is applicable in preference to the common law, the judge shall prevail "auction law" the relevant provisions of the regulations, not only the "auction law" circumstances, can be applied to relevant provisions of the "contract law";

 

　　2Determination of auction effect.

    AThe auction law, "" regulations prohibit auction items not auction, so the law prohibits the transfer or restricted housing, such as fails to perform the relevant procedures for the auction, shall be regarded as invalid;

 

    B, "auction law" provisions, the auctioneer shall be engaged in the auction activities of the enterprise legal person established in accordance with the "auction law" and the "company law", but if based on the auction and the housing sales contracts invalid without other reasons, only the auctioneer qualification problems, protect the security of transaction from the point of view, still should validation of the auctioneer, the problem should be resolved by the way of administrative punishment. In the trial of access to housing ownership by auction case, the auctioneer qualification, the buyer identity situation and auctioneer is up to good management of obligations to review one one.

 

　　3At auction and preemption coordination problem. In our civil law recognized and housing related preferential buy right mainly include: the right of preemption of lessee preemptive right, there are people, Pawnee preemptive right, the use right of state-owned land preemptive right.

 

    In order to protect the legal priority right of preemption, the auctioneer shall in the housing delivery before the auction notice within a reasonable period of time priority, preemptive right should be in a reasonable period of time determined in the auction for pre emptive, fails to claim, as the priority purchase right to abandon the purchase priority, the auctioneer may not notice the priority purchase right bids.

 

    Secondly, the priority purchase right advocate preemptive right, the auctioneer shall notify it to participate in the auction, as long as the priority purchase right people offer not less than other bidders, it shall be the priority purchase right people take the house. In the trial, the judge should be based on the relevant facts were to review the principles, and to determine the effectiveness of a contract for the sale of housing.

 

 

(three) the relevant problems of appointment contract disputes

　　1Distinguish the appointment. The contract and this contract. According to the housing sales contracts have no formal contract signed, can be divided into pre contract and the contract. This is about that the formal contract, the parties can directly according to this request opposite party to fulfil contractual obligations, and appointment refers to the negotiating one party or both parties for a future certainty the contract a written promise or agreement. Booking by pointing to the object of performance for the two sides to enter into this covenant behavior, generally consists of the conclusion of the future about the basic conditions and basic content. In the trial practice, the general performance of pre-sale of commercial housing subscription book, letter of intent, pledges and other forms of. The appointment contract can be divided into the conclusion of a contract for the purpose of the contract appointment and to promote the entry into force of the contract for the purpose of effective reservation. The trial should be according to the contents stipulated in the contract to determine the nature of the contract, and not only from the form or name to judge.

 

According to "the Supreme People's Court on the law applicable to a number of commercial housing sale contract dispute cases the interpretation of" the5Regulation: commercial housing subscription, ordering, reservation protocol has "sales of commercial property management approach" article16The main content of the provisions of the contract for the sale of commercial housing, and in accordance with the contract, the Assignor has received the purchase, should be identified as the appointment is about. Review, should pay attention to the "appointment" should at least include essential terms of contract for the sale of commodity houses, that the seller and the buyer's name, commercial housing situation, commercial housing price, terms of payment and time, the delivery of commercial housing conditions and time etc..

 

　　2Find out relevant facts, determine the liability for breach of contract. The judge shall review the appointment contract is not in force majeure (such as earthquake, fire caused loss of housing) as well as circumstances change situation (such as development projects for government policy changes led to the cancellation, installation etc.), if not the case, should be combined with the housing price and double side other performance to find out why party causes the contract for the sale of commodity houses a failed.

 

Confirm the appointment of liability for breach of contract should be in accordance with the general agreement from the agreement, no agreement from legal principle. If the two sides agreed in the contract, a reservation deposit penalty, in accordance with the deposit penalties or liquidated damages of contract. For reasons not attributable to the party's cause, the contract for the sale of commodity houses unable to contract, the transferor shall refund the deposit to the buyer; if the two sides reservation without corresponding agreed in the contract, the party in breach shall compensate the other party for the losses. The loss is generally make an appointment contract price and both sides agreed to sign this about the housing market price difference.

 

   In the trial, the judge should be combined with the other party's request, determine the breaching party breach of contract, the trial date change, the other party in housing payment (including whether the timely payment, payment amount), breach of contract breach of malicious degree and scope of losses, whether the two sides to take the necessary measures to prevent such losses plot, determine the amount of compensation for breach of contract party.

 

In addition, the parties have agreed upon breach deposit exists in the trial practice, whether they can claim compensation for the loss of the dispute, therefore, tend to think that, if the breach deposit is not sufficient to sanction the defaulting party, make up the loss of the observant party, should allow the other party to breach deposit compensation does not advocate the right foot part.

 

 

(four) relates to issues related to housing a total of disciplinary action disputes

　　1Find out the facts

(1) includes a review of housing management authority in the registration, housing: whether the registration of real property; registration of real property rights and transfer agreement; stakeholder litigation before it on the real estate registration raised objection to the application;

 

(2) includes a review of litigants subjective status,: buyer is in good faith; the transferor whether or not to tell other people to sell housing facts; there are other people on the sale of housing whether knows or should know whether, after ratification; whether there is evidence to suggest that there are other people should be aware of the sale of housing facts, but based on the house factors such as rising malicious;

 

(3The actual performance review), the sale of housing includes: housing property is changed to the buyer's name; the buyer has actual possession of the actual delivery of housing; limit.

 

　　2The basic principles of management

Based on a review of the above facts, if the house sold, right registration is only sold one person, unless there is evidence to prove that the buyer and the transferor malicious collusion, damage other people's interests, property rights registration announcement, the public trust doctrine should be confirmed based on the sale of housing, the contract effective; if the housing sale registration rights, as the number of people, based on the part of the law shall not be unauthorized disposal of property, the general should confirm the housing sales contracts invalid, but the buyer has reason to believe that the transferor has the right, in accordance with the essential elements of agency by estoppel, housing sales contract should be confirmed.

 

   It must be noted that, if found housing has been delivered the buyer and the property has been changed to the buyer names down, should maintain the effectiveness of the contract as far as possible, to inform that the housing sales contracts invalid other common property people can change the claim or separate proceedings, claims to dispose of them compensation.

 

 

(five) coordination problems in housing sales contracts disputes related cases

Due to the sale of housing contract dispute cases caused by litigation complex reasons, in practice the same fact based on often has many disputes, so in trying cases of disputes over the sale of housing contract, should pay attention to whether the related case, shall be coordinated with the related cases in the entity processing.

 

　　1Housing relocation cases. And coordination. If the buyer to the court request assignor or actual living people to move to, and the transferor, the assignor of a housing sales contracts or the actual living people asked to confirm the sale contract invalid, due to the buyer to obtain housing ownership on the basis of the legal relationship effectiveness is subject to review, on the related party has filed an invalid contract litigation, housing relocation shall rule to suspend the trial.

 

　　2. coordination and cases of disputes over a contract for loan of money.

    In practice, some request that the housing sales contracts invalid plaintiff was taken to court, often because the creditors claim that the repayment of loans and require the exercise of house mortgage right.

 

   In this case, should review the related loan contract dispute cases have no judgment, verdict. In order to guarantee loans for the payment of commercial housing sale contract where a party requests to confirm the sale of commercial housing contract is invalid or revoked, the termination of the contract, if the guarantee right is an independent right of claim third people claim, should be with the commercial housing loan guarantee contract dispute proceedings; non litigation request, processing only commercial housing sales contracts and disputes. Guarantor, commercial housing loan guarantee contract dispute be prosecuted, and the sale of commercial housing contract dispute proceedings.