Peninsula All Media Reporter Yin Yanxin, Jiang Kai, Song Hongrui, Intern, Wen Fuke
Recently, various favorable real estate policies have been issued frequently, and the popularity of housing sales has risen. On October 15, the Peninsula Legal Hotline (80889800) focused on real estate disputes, and lawyers Zou Jing and Song Hailing of AllBright (Qingdao) Law Firm answered citizens' questions online.
The commercial house I bought is unfinished, do I still need to repay my bank loan? If the buyer dies suddenly and the heirs cannot afford the loan, can the contract be terminated? On the morning of the same day, the public called to consult, and the reporter sorted out the typical problems for readers' reference.
Before 9:30 a.m., two hotlines rang one after another, and lawyer Zou Jing received a call from Ms. Zhang, a citizen. "Three years ago, I took out a loan to buy a new house, and I was very happy when I bought it, because a lot of people didn't get it." Ms. Zhang told lawyer Zou that she signed a "commercial housing pre-sale contract" with a developer, with a down payment of 1 million.
"In order to buy this house, I signed a "Personal Housing Loan Contract" with CCB Qingdao Branch and the developer, borrowed 2.8 million yuan from CCB Qingdao Branch, and used the house as collateral." What Ms. Zhang didn't expect was that although the houses in the community were sold quickly, the construction progress of the community was very slow, and the developer later overdue. "After communication, the developer made it clear that he could not deliver the house, and the community was unfinished, I would like to ask the lawyer, do I still need to continue to repay the mortgage loan?"
After understanding the relevant details, lawyer Zou said that the Supreme People's Court has a clear statement and basis for whether the buyer needs to continue to repay the mortgage loan after the commercial housing is unfinished. "According to Article 20 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Commodity Housing Sales Contracts, if the purpose of the commercial housing secured loan contract cannot be achieved because the commercial housing sales contract is confirmed to be invalid, revoked or dissolved, and the parties' request to terminate the commercial housing secured loan contract shall be supported." Lawyer Zou said that the main meaning of this provision is that if the commercial housing is unfinished due to the developer's reasons, resulting in the buyer being unable to get the house, then the buyer has the right to sue for the termination of the pre-sale contract of the commercial housing, and at the same time list the bank as a third party, request the cancellation of the loan contract secured by the commercial housing, and require the developer to return the down payment paid to the developer, the loan principal and interest paid to the bank by the buyer.
"The purpose of this is to protect the legitimate rights and interests of home buyers and avoid making them bear risks and losses that they should not bear." Ms. Zou advised Ms. Zhang to protect her rights and interests through litigation as soon as possible.
In the call of the day, the problem of housing quality has also become the focus of public consultation. "In 2021, I bought a commercial house, in April last year, the house was delivered, and in March this year, the heating pipe joint in this house fell off, and the heating pipe overflowed, causing damage to the furniture, electrical appliances, walls, etc. in the house." Mr. Liu told lawyer Song Hailing that he believed that the heating pipes of the house sold by the developer were not up to standard, and the developer should bear the responsibility for repairs and compensation. However, the developer believes that the house involved in the case was delivered after passing the inspection, and there was no quality problem, and it should not bear the responsibility for repair.
"Please ask a lawyer to help me determine whether this responsibility should be borne by the developer?"
"Although the house sold by the developer to the buyer has been inspected, the acceptance does not mean that the house does not have other quality defects. During the warranty period, if there is a quality problem with the house and supporting facilities, the developer still has the obligation to repair and compensate, and the warranty period is calculated from the date when the developer delivers the house to the buyer. "Lawyer Song said that during the warranty period, the developer should bear the obligation to repair, and if the developer refuses to repair or delays the repair within a reasonable period of time, the buyer can repair it by himself or entrust others to repair it, and the repair cost and other losses caused during the repair period shall be borne by the developer." If the developer refuses to take responsibility, you can file a lawsuit with the court and ask the court to make a notarized judgment after retaining the relevant evidence. ”
Question 1: If the developer has been delaying the application for the real estate certificate, can the developer be required to compensate for liquidated damages?
Mr. Liu bought a house in a community and has been living in it for almost four years. At that time, the developer promised to apply for the real estate certificate on time, but when the time agreed in the contract, the developer did not handle it. Mr. Liu repeatedly communicated with the developer about handling the real estate certificate, but each time the developer said that it would be done in order from front to back, and did not give a reasonable explanation. Mr. Liu asked the lawyer if the developer could claim liquidated damages if he had been dragging his feet and not applying for the real estate certificate. If the contract exceeds the three-year statute of limitations, can liquidated damages still be paid?
The lawyer said: The owner and the developer have signed a contract for the sale and purchase of commercial housing, which is legally binding on both parties, and the developer shall apply for the real estate ownership certificate for it in accordance with the time limit agreed in the contract. According to the relevant interpretation issued by the Supreme People's Court, due to the reasons of the developer, if the owner fails to obtain the real estate ownership certificate upon the expiration of the time limit agreed in the commercial housing sales contract, the developer shall bear the liability for breach of contract; If the contract does not stipulate liquidated damages or the amount of losses is difficult to determine, it may be calculated according to the paid purchase price and with reference to the standard for financial institutions to charge interest on overdue loans stipulated by the People's Bank of China. In addition, if the registration of immovable property is still not possible due to the developer's reasons more than one year after the expiration of the time limit for real estate registration, the owner also has the right to request the termination of the contract and compensation for losses. Therefore, Mr. Liu first checked the time limit for processing the real estate title certificate and the liability clause for breach of contract as agreed in the contract, and continued to require the developer to perform the contract and pay liquidated damages in accordance with the contract. Mr. Liu was reminded to keep call records, audio and video recordings, etc. during the negotiation process with the developer, so as to protect his rights. If the negotiation fails, Mr. Liu can file a lawsuit with the court. Regarding the statute of limitations, Mr. Liu can rest assured that the statute of limitations for liquidated damages starts again when you last assert your rights against the developer, so the expiration of the contract performance period of more than 3 years does not necessarily exceed the statute of limitations.
Question 2: If the developer fails to deliver the house for a long time, how should the owner protect his rights?
In 2019, Ms. Zhu was optimistic about a newly developed property. At that time, the staff of the developer promised Ms. Zhu that the house would be delivered in April 2020. Ms. Zhu took out all her savings, borrowed some from relatives and friends, signed a purchase contract with the developer, and bought a house in the community. But when it came to the delivery date, the developer said that the house could not be delivered yet, and asked Ms. Zhu to wait. This wait is 4 years, during which Ms. Zhu has negotiated with the developer many times, but the other party always finds various reasons to shirk, and cannot give an accurate delivery time. The scraped down payment and bank loans, but the delivery of the house was far away, which made Ms. Zhu almost collapse. She asked her lawyer how she should defend her rights if the developer delayed the delivery of the house.
Lawyer's statement: Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Commercial Housing Sales Contracts stipulates that, according to Article 563 of the Civil Code, if the seller delays the delivery of the house or the buyer delays the payment of the purchase price, and fails to perform within a reasonable period of three months after being reminded, the request of the person with the right to terminate the contract shall be supported, unless otherwise agreed by the parties. If the law does not provide or the parties have not agreed, the reasonable period for exercising the right of rescission is three months after being urged by the other party. If the other party does not demand, the person who has the right of rescission shall exercise it within one year from the date on which he knows or should know the reasons for rescission. If it is not exercised within the time limit, the right of rescission shall be extinguished. The developer has not delivered the house for 4 years and has not given a valid reason, and according to the relevant regulations, Ms. Zhu can urge the developer to fulfill the obligation to deliver the house. If the house is still not delivered within three months after being reminded, Ms. Zhu can claim to terminate the contract and compensate for liquidated damages or losses. If there is an agreement in the contract on the dispute resolution method, it shall be settled through negotiation if there is no agreement. If the negotiation fails, Ms. Zhu can file a lawsuit with the court to protect her legitimate rights and interests.
Question 3: If the buyer dies suddenly and the heirs are unable to repay the loan, can they request to terminate the contract?
Many years ago, Ms. Sun's wife died of illness. In 2023, his unmarried son bought a commercial house with a mortgage. Some time ago, his son unfortunately passed away due to illness. Ms. Sun became the sole heir of the commercial house, and also inherited the repayment obligation under the loan contract. But Ms. Sun has no job and a low income, so she can't afford the high mortgage. Ms. Sun asked her lawyer if she could terminate the purchase contract and loan contract and at the same time ask the developer to refund her son's purchase price.
Lawyer's statement: There is a provision in the Civil Code that if the purpose of the contract cannot be achieved due to force majeure, the parties can terminate the contract. The death of Ms. Sun's son constituted force majeure and prevented the purpose of the contract from being achieved. Ms. Sun, as the sole heir of her son's first line of succession, inherited the relevant rights and obligations of the house sale contract involved in the case, and if the contract could not be continued due to force majeure, Ms. Sun had the right to exercise the right to terminate the contract and request the developer to refund the purchase price paid by her son. At the same time, Ms. Sun has the right to list the bank as a third party in the lawsuit and request to terminate the secured loan contract with the bank. Because according to the relevant provisions of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over Commodity Housing Sales Contracts, if the purpose of the commercial housing guarantee loan contract cannot be realized due to the termination of the commercial housing sales contract, the parties' request to terminate the commercial housing guarantee loan contract shall be supported. After the house sale contract and the housing guarantee loan contract are terminated, the developer shall return the principal and interest of the purchase loan and the purchase price to the guarantor bank and Ms. Sun respectively.
Question 4: If the original owner sells the house he bought to others, who should the house belong to?
Mr. Xin was optimistic about a property purchased by Mr. Zhang, and after negotiation, Mr. Xin and Mr. Zhang signed a "House Sale and Purchase Contract" under the witness of a real estate company, which stipulated that Mr. Zhang would voluntarily sell his off-plan property in a certain real estate to Mr. Xin. After the contract was signed, Mr. Xin paid the full amount of the house, but the transfer was not registered because the house was still under construction. Some time ago, Mr. Xin learned that Mr. Zhang had sold the property to others, and Mr. Xin believed that Mr. Zhang's behavior had seriously infringed on his legitimate rights and interests, and asked the lawyer who should the house belong to?
The lawyer said: Mr. Zhang's behavior is a typical "one house and two sales". In judicial practice, the following steps are mainly followed to deal with the issue of "one house and two sales": first, it is necessary to determine whether the house has completed the change registration procedures, and if the registration procedures have been completed, it should undoubtedly belong to the registrant; If it has not yet been registered, ownership should be confirmed on the basis of who actually paid the full or substantial part of the purchase price; If none of the above conditions are met, the exact ownership of the house must be determined according to the order in which the relevant contracts are signed. The property purchased by Mr. Xin was under construction and could not be registered, so although the sale and purchase contract was valid, Mr. Xin was unable to obtain ownership of the house. The Civil Code stipulates that the creation, alteration, transfer and extinction of immovable property rights shall become effective upon registration in accordance with the law; Without registration, it shall not take effect, unless otherwise provided by law. Therefore, if Mr. Xin does not want the house, he can directly sue for the termination of the contract, the return of the purchase price, and the liability of the seller, Mr. Zhang. Otherwise, follow the steps you should follow to determine the ownership of the home.
Questioning and Feeling:
Lawyer Song Hailing: Today, I am fortunate to participate in the Peninsula Legal Hotline program as a lawyer to provide legal consulting services related to real estate for the public. I have encountered a variety of real estate issues, including disputes over the sale and purchase of houses, protection of lease rights, property management disputes, etc. Each caller has their own confusion and expectations, and I try my best to answer them with professional knowledge and patience. Through such interactions, I realized that the temperature and attitude of legal services are equally important. I have come to understand that the value of legal services is not only to solve the problems at hand, but also to help people establish correct legal concepts through the popularization of legal knowledge.