"Interpretation of the Supreme People's Court on the law applicable to a number of commercial housing sale contract dispute cases (referred to as" the new interpretation) has been officially implemented in June 1, 2003. Because of the market to further regulate the sale of commercial housing, which caused great concern to the vast number of property buyers and developers. Everybody wants to know, in this explanation after the official implementation, is to the real estate disputes brought about vibration. This newspaper invite professional real estate lawyers, combined with years of real estate experience in handling cases, in the form of case for your detailed explanation of new explanation of your concern.

  

 

One case: no pre-sale permit, the contract is void

    Mr. Tang bought a shop East downtown, and strictly in accordance with the "commercial housing sales contract" to the developers to pay the full purchase. However, an accidental opportunity Mr. Tang informed, developers in to their houses have not obtain the "pre-sale commercial housing permits"! At the same time, Mr. Tang said, without pre-sale permit developers are not sold commercial housing, if signed the "commercial housing sales contract", the contract is invalid contract. So, Mr. Tang was very worried because I and developers signed the "commercial housing sales contract" is an invalid contract without legal protection and the damage to their own interests.

    In this regard, Mr. Tang consultation: in this case, how to identify the "commercial housing sales contract" effective? If not, how should as far as possible to protect their legitimate rights and interests.

 

Lawyers answer:

    "Real estate management law" of the people's Republic of China City Housing forty-fourth provisions: pre-sale of commercial housing, should apply for pre-sale registration to the real estate management departments of the people's government at the county level or above, to obtain pre-sale commercial housing permits. According to the provisions of this article, is generally believed that the purchase agreement before the pre-sale permit in the developers signed null and void because of violation of mandatory provisions of the law. But in the real estate transaction practice, often developers in order to return the funds as soon as possible in order to ensure the smooth completion of the project, but before the pre-sale permit processing or handling process will be commercial housing sales, this part of the developer is not in the sales process are malicious fraud intention and this part of the sales contract are to get the actual performance. Therefore, if the lump together the failure to obtain pre-sale permit commercial housing and commercial housing sales contracts signed that location is invalid, will not be conducive to the sale of commercial housing transaction security. Therefore, in the new judicial interpretation of the Supreme People's court, the treatment principle is compromise: the seller did not obtain permits for commercial housing units, and the buyer signed commercial housing sale contract, it shall be deemed as invalid, but obtain pre-sale permit in the prosecution of former, can be identified as effective. At the same time, in order to prevent malicious developers pre-sale of commercial housing, the new interpretation of the strict liability for developers, the developers deliberately concealing did not obtain permits for pre-sale of commercial housing facts or providing false pre-sale permit, the contract is invalid due, the buyer may request the return of prepaid purchase, and interest, compensation for losses, and may request the seller to bear the responsibility of compensation does not exceed the prepaid purchase times.

    Therefore, Mr. Tang to the developers understand whether has required that commercial housing pre-sale permit, if required, can think of Mr. Tang and developers of the contract. At the same time, Mr. Tang also can directly request the court to confirm the validity of the contract. If the prosecution of former, developers still did not apply for pre-sale permit, Mr. Tang can be based on the provisions of the new interpretation of the liability for developers.

 

Counsel:

    New explanation to the developer defines a very strict and even a liability punitive, so developers in the housing transaction process in the future, should be more strictly in accordance with the law constrains their sales practices. Disputes and unnecessary risk to prevent.

    As a consumer, when the contract is invalid state, their interests are often difficult to be effectively protected. Probably suffered financial and human resources, time, energy loss, therefore, consumers in a purchase agreement, must not forget to carefully check developers related sales procedures (commonly known as the "five card"), so as to reduce the risk of purchase their own.

 

The relevant interpretation of the provisions:

    Article second: "the seller did not obtain permits for commercial housing units, and the buyer signed commercial housing sale contract, it shall be deemed as invalid, but obtain pre-sale permit in the prosecution of former, can be identified effectively."

     Article ninthSeller: "commercial housing sales contracts, is under any of the following circumstances, cause the contract invalid or revoked, the lifting, the buyer may request the return of prepaid purchase, and interest, damages, and may request the seller to bear the responsibility of compensation does not exceed the prepaid purchase times:

    (a) has not been deliberately concealed the pre-sale of commercial housing permits to prove the facts or providing false pre-sale permit;

    (two) the sale of housing has deliberately concealed the fact of mortgage;

    (three) deliberately concealing sold houses have been sold to third party or for the removal of compensation for housing facts."

 

 

 

Case two: advertising commitments from constraint

    In 2001, Mr. Chen and several other owners to buy forward delivery housing several pavement of a commercial building is located in the downtown area. At the time of purchase, developers to produce several advertising sales to Mr. Chen et al., says the building will be built with a sightseeing elevator, water pool and other facilities, certainly than other commercial attract shoppers, so the price is slightly higher than the same lot. Mr. Chen et al. After looking very satisfied, the price can accept, lunch with the developers signed a purchase agreement of 4 respectively. At the same time, for the developers trust, Mr. Chen et al not sightseeing elevator facilities into the contract. However, by 2002, developers sought after, Mr. Chen found the sightseeing elevator, water pool all to no trace, and other supporting facilities and in advertising commitments are either shoddy, or cargo wrong board, or no. Mr. Chen and others thought cheated, find developers representations, but said developers advertising is only an invitation to offer, as long as there is no written contract is not binding on the developer, the act does not constitute a breach of contract.

    In this regard, Mr. Chen wants through the lawsuit way for developers to violate advertising commitments, but do not know whether to obtain the support of the court.

 

Lawyers answer:

    "Contract law" stipulates that the fifteenth "the contents of a commercial advertisement comply with the terms of the offer, as offering", but before the new interpretation issued, the developers sales advertising has only been regarded as an invitation to offer. And an invitation to offer, in law think that as long as there is no written contract, is not a party (developers) binding. Therefore, giving developers in advertising more space to play, many developers will take it as an opportunity to do more or less false publicity for their own development projects, and thus trigger disputes. But such dispute occurs, the rights and interests of consumers will be difficult to obtain the effective protection, but also to some extent contributed to the developers deliberate fraud, is not conducive to the healthy development of the real estate market obviously. Therefore, the new judicial interpretation first affirmed the general commercial housing advertising invitation to offer, then the real estate advertising under what circumstances the offer made clear: the advertisement on the commercial housing development planning within the housing and related facilities for the description and the promise is specific, definite, and have a significant impact on the determination of contracts and commercial housing prices, it should be regarded as an offer. For the offer, according to the relevant provisions of contract law, the offer may not be modified or revoked, and subjected to the offeror promises (performance for the contract), the offeror is restricted by the offeree constraints. That is to say, according to the provisions of the new interpretation, as long as the developers in the advertising for the developers of commercial housing for the specific description and promised, even if the advertising content is not written into the contract, developers also restricted by it. Once the breach, buyers have the right to pursue the developers default responsibility.

    In Mr. Chen's case, developers in advertising commitments sightseeing elevator facilities is clear and specific, and influence the transaction price. Therefore, according to the new interpretation, the advertisement should belong to the offer, Mr. Chen can be developers default responsibility.

 

Counsel

    After the entry into force of the new judicial interpretation, will increase the developers advertising behavior binding to a great extent. Developers should avoid to appear in the advertisement the sale of commercial housing without false statements and promises, especially is specific, determined to property buyers, and is able to enter into the purchase contract and prices have a significant impact on the determination of the. Otherwise, developers will likely face a large area of a project within the collective action, therefore, developers will assume a greater economic losses and the loss of reputation.

    For property buyers, the new interpretation undoubtedly provides greater protection. However, we still want to remind the vast number of property buyers, in real time, to see more, do not easily believe that the sales advertising commitments. Because, the new interpretation is given a dispute solution, and not completely eliminate disputes. But once there is a dispute, consumers are often still have to pay a large amount of money and energy, so only to prevent the dispute is the most important.

 

The relevant interpretation of the provisions:

    Article third: "commercial housing sales information for advertising and promotional offer invited, but the seller on the commercial housing development planning within the housing and related facilities for the description and promised to establish a precise, and the commercial housing sales contracts entered into and determine housing prices have a significant impact, it should be regarded as an offer. The description and the promise of even if not included in the commercial housing sales contracts, the contract should be regarded as the content, contrary to the parties, it shall bear the liability for breach of contract."

 

 

Case three: not for reason leading to the signing, both imputation performance cannot, deposit should be returned, limit

    Ms. Zhang in 2002 for a set of 120 square meters of commercial housing in the south area of a property, and pay 50000 yuan purchase warrants. The subscription book, the mortgage payment limit Ms. Zhang and the developers agreed, and by Ms. Zhang in 15 days to the developers sales department signed the "commercial housing sales contracts," to pay the first payment, at the same time, Ms. Zhang to bank mortgage loan procedures for the bank staff by the field office. 10 days later, Ms. Zhang related materials with the first payment and the mortgage loans required to developers, the sales department is ready to sign the "commercial housing sales contract". However, after the bank staff on-site sales of careful review materials related to Ms. Zhang pointed out, Ms. Zhang does not have the mortgage loan conditions, can not handle the mortgage loan procedures. Out of caution, Ms. Zhang immediately decided to suspend the signed the "commercial housing sales contract". Since then, Ms. Zhang went to the home mortgage loan business bank ask yourself if you can apply for mortgage loans, obtains the answer is: do not meet the conditions, can not handle. So, Ms. Zhang to the developers because they can not handle the mortgage loans led to the inability to purchase, so developers refund the purchase. Developers have said the deposit system both for the conclusion of the "commercial housing sales contract" guarantee, as long as a woman is not signed the purchase agreement, the deposit will not be refunded.

    In this regard, Ms. Zhang wanted to know whether they have the right to require developers to return their delivered deposit.

 

Lawyers answer:

    Both the "contract law" or "guarantee law" are made the stipulation to the deposit system, but also for the practical implementation of the deposit system set up the "deposit penalties". In the sale of commercial housing, the transaction will often use the deposit as a way to enter into the contract guarantee. But because the relevant laws on what circumstances should apply the "deposit penalty" is not clear, to a large extent to the developers caused the abuse of "deposit penalties" opportunity, making developers tend to deposit to coerce, forced purchase commercial housing sales contracts entered into with, damage the interests of property buyers. New explanation to this phenomenon made clear, "deposit penalty is defined, such as: the deposit as a contract for the sale of commercial housing guarantee, if the reason for one of the parties fails to conclude a contract for the sale of commercial housing, should be in accordance with the provisions of the law on deposit processing (" deposit penalties applicable situations "); can not due of the subject matter in both parties, leading to the sale of commercial housing contract fails to be concluded, the Seller shall refund the deposit to the buyer (" deposit penalty "is not applicable to the case. Generally, not attributable to both parties in terms of reasons include: commercial housing sales contract both sides cannot contract has been agreed subscription agreement, non buyer reasons banks refused to grant loan conditions etc..

    Encountered Ms. Zhang's case is above second, and Ms. Zhang and developers in the subscription book is the mode of payment made a clear agreement, a direct consequence of the banks refused to lend is Ms. Zhang performance cannot be. Therefore, because of the reason of third banks, lead to Ms. Zhang not signed the "commercial housing sales contract" and not her fault, Ms. Zhang shall have the right to request developers return deposit.

 

Counsel:

    Because a considerable part of property buyers is the choice of mortgage loans to buy commercial housing, so as the third bank of commercial housing in the sale process a very important position, will directly determine the purchase can continue to perform the contract. In actual transactions, will often have for refusing to loan banks review, result of the purchase were unable to bear the high prices have triggered by disputes case. The new interpretation of this also made the relevant provisions: the sale of commercial housing contract, buyer to guarantee loan payment, not because of one of the parties conclude the commodity premises secured loan contract and cause no commercial housing sales continue to fulfil the contract, the other party may ask for in addition to the contract and compensation for loss. For reasons not attributable to the parties for failing to enter into commercial housing loan guarantee contract and cause no commercial housing sales continue to fulfil the contract, the Seller shall charge mortgage principal is the interest or the deposit to the buyer.

    Based on the above reasons, we recommend that developers should consider "not attributable to the parties for" may be in the sales of commercial housing: first, to uphold the integrity of the sales, to avoid the same as in the past to deposit for the signing of ACE; secondly, in the signing of the contract, should the bank policy and economic conditions to buy people have a general understanding, in order to minimize the cost of each contract agreement, which can effectively perform.

 

The relevant interpretation of the provisions:

     Article fourth: "the seller through subscription, ordering, reservations to the buyer accepts the deposit as a contract for the sale of commercial housing guarantee, if not because of one of the parties conclude the commodity housing sales contracts, should be dealt with in accordance with the provisions of the law on deposit; can not due of the subject matter in both parties, leading to the failure to commercial housing the sale of the contract, the Seller shall refund the deposit to the buyer."

     Article twenty-third: "commercial housing sales contracts, the buyer to guarantee loans payments, not because of one of the parties conclude the commodity premises secured loan contract and cause no commercial housing sales continue to fulfil the contract, the other party may request cancelling the contract and damages. For reasons not attributable to the parties for failing to enter into commercial housing loan guarantee contract and cause no commercial housing sales continue to fulfil the contract, the parties may request cancelling the contract, the Seller shall accept the mortgage principal and interest or refund the deposit to the buyer."

 

Yunnan Hua Wei law firm  Martial arts  Shao Hong