Today, I am very happy to learn some legal issues in disputes over commercial housing sales contracts with you. In the process of commercial housing sales, there are many disputes. To this end, the Supreme People's Court promulgated the People's Republic of China (PRC) Lawyers Law. Interpretation of several issues concerning the application of law in the trial of disputes over commercial housing sales contracts >> Today, we will focus on this interpretation and try to explain it in detail from the perspective of both buyers and developers in order to avoid such disputes.

1. Commercial housing sales contract.

1. Definition: refers to a contract in which a real estate development enterprise sells an uncompleted or completed house to the society and transfers the ownership of the house to the buyer, who pays the price.

2. Features:

(1) Legality and particularity of the seller: the seller of commercial housing can only be a qualified real estate developer. Houses sold by units and village committees do not belong to commercial housing.

(2) the commodity nature of housing: commercial housing is a house developed and built in the field of commodity circulation to obtain profits. Although affordable housing, housing reform housing and private houses can also be traded in the real estate market, listing transactions should comply with relevant national policies.

(3) Socialization and openness of the selling behavior: commercial housing is sold to people who are not specific to society, while the affordable housing built by developers is supervised by all aspects of the government and is not sold to the public.

3. Commercial housing sales contracts are different from housing construction contracts; The pre-sale contract of commercial housing is different from the futures trading contract and reservation contract (subscription book) of commercial housing transactions.

Lawyer Zhao thinks that from the buyer's point of view, it is best to hire an escort lawyer. Be sure to check the relevant documents of the developer before signing the contract, such as business license, construction land planning permit, construction permit, pre-sale permit of commercial housing, etc. We must carefully examine the relevant clauses in the commercial housing subscription book and commercial housing sales contracts, and ask the developers to increase or decrease the relevant clauses to avoid possible legal risks that are unfavorable to the buyers.

5. Lawyer Zhao thinks that from the developer's point of view, it is best to adopt the format contract stipulated by law, such as> (GF-2000-0171).

Two. Commercial housing subscription book.

1. The subscription, order and reservation agreement for the sale of commercial housing refers to the documents signed by both parties before signing the pre-sale or house sale contract, which is the preliminary confirmation of the relevant matters of the house transaction by both parties. The contents generally include: the basic information of both parties, the basic information of the house, the time limit for signing a formal contract, etc. It is an appointment contract for the sale of commercial housing, not an informal sales contract. It is an appointment contract signed by developers and property buyers before obtaining the pre-sale permit.

2. If the subscription book contains the main contents stipulated in Article 16 of > Commercial Housing Sales Contract, and the employer has accepted the purchase price as agreed, the agreement shall be deemed as a formal commercial housing sales contract.

& lt& lt； Article 16 stipulates that the commercial housing sales contract shall specify the following contents: (1) the name and domicile of the parties, (2) the basic information of the commercial housing, (3) the sales method of the commercial housing, (4) the determination method, payment method and payment time of the price and total price of the commercial housing, (5) the delivery conditions and date, and (6) the decoration and equipment. Commitment to delivery of supporting infrastructure and public facilities such as greening and related rights and responsibilities, (8) ownership of public supporting buildings, (9) handling method of area difference, (10) matters related to property right registration, (1 1) dispute resolution method, (65438)

The developer collected part of the purchase price, but not all, which can be regarded as a formal commercial housing sales contract.

3. The subscription book generally stipulates the deposit as the guarantee for concluding the commercial housing sales contract. If the contract for the sale of commercial housing cannot be concluded due to one party, it shall be handled in accordance with the provisions of the Security Law on deposit, that is, if the contract for the sale of commercial housing cannot be concluded due to the buyer's reason, the deposit need not be returned. If the sales contract cannot be reached due to the seller's reasons, the seller shall double the deposit paid by the buyer. If the commercial housing sales contract fails to be concluded, the seller shall return the deposit to the buyer. The down payment and down payment in the contract cannot be regarded as down payment, but it is regarded as down payment if it is stated that the buyer fails to return it and the seller returns it twice in breach of contract.

4. Lawyer Zhao believes that as buyers and developers, we must pay attention to whether the contract signed by both parties is an appointment contract or a sales contract, and the criterion for distinguishing the two is whether the contract terms are the main terms stipulated in Article 16. Both parties should also pay attention to whether the subscription book stipulates a deposit or a deposit, whether the deposit and the distinguishing standard are words and whether the penalty for deposit is applicable.

3. Pre-sale contract of commercial housing.

1. Pre-sale conditions of commercial housing:> Article 44 stipulates four conditions that must be met in the pre-sale of commercial housing: (1) all the land use right transfer fees have been paid, (2) the planning permit and construction permit for construction projects have been held, and (3) according to the pre-sale conditions of commercial housing provided, the bonus invested in development and construction has reached more than 25% of the total investment in engineering construction, and the construction progress and completion delivery date have been determined. (4) Pre-sale registration has been handled. Obtain a pre-sale permit for commercial housing. However, it should be noted that whether the developer has these four conditions is not the basis for the validity of the pre-sale contract of commercial housing. It is only a condition for the administrative department to issue a pre-sale permit to the developer. The pre-sale contract of commercial housing cannot be deemed invalid just because the developer does not have these four conditions. As long as the developer has obtained the pre-sale permit, the commercial housing sales contract is valid. The people's court should not conduct substantive examination on whether the developer meets the four conditions, but only find out whether the developer has the pre-sale permit.

2. If the developer fails to obtain the pre-sale permit certificate of commercial housing, the pre-sale contract signed with the buyer shall be deemed invalid. The losses caused to the buyer due to the invalid contract shall be borne by the developer.

3. However, if the developer obtains the pre-sale permit certificate of commercial housing before the prosecution, it can be considered that the pre-sale contract of commercial housing is valid.

4. If the commercial house fails to go through the registration formalities in accordance with the provisions of laws and administrative regulations, it cannot request to confirm that the contract is invalid. If both parties agree that the registration procedure is the effective condition of the pre-sale contract, such agreement shall prevail, except that one party has fulfilled its main obligations and the other party has accepted it. For example, if the buyer has paid the deposit and the developer has accepted it, the contract between the two parties shall be deemed valid.

Lawyer Zhao believes that as a property buyer, when signing a sales contract, you should check whether the developer has a pre-sale permit. If he doesn't, he can't sign the contract, otherwise the signed contract will not be protected by law. The buyer must ask the developer to put the pre-sale contract on record, which is called pre-sale according to the property law.

6. Lawyer Zhao believes that as a developer, you must have a pre-sale permit before you can sell the house to the outside world, otherwise it will constitute fraud to the buyer and you will be responsible for returning the paid house price twice.

Four. The nature of sales advertisements.

1. Generally speaking, the sales advertisements and promotional materials of commercial housing are invitations to offer, not offers, or even contract terms.

2. However, the explanations and commitments made by the developer to the houses and related facilities within the industrial planning scope of commercial housing are specific, which have a significant impact on the conclusion of the commercial housing sales contract and the determination of the housing price, and shall be regarded as an offer. Even if it is not included in the commercial housing sales contract, it should be regarded as the content of the contract. If a party violates it, it shall bear the liability for breach of contract. Commercial housing and infrastructure include heating, power supply, water supply, residential landscape, roads in residential areas, parking lots, etc.

Lawyer Zhao believes that as a buyer, the developer's sales advertisements and promotional materials should be kept, so that when the commercial house is delivered, if it is inconsistent with its promotional materials and advertisements, it can claim the liability for breach of contract from the developer as evidence.

Lawyer Zhao believes that as a developer, you can't make false propaganda, and you must pay attention to the language in your advertisement, and you must give an exact and clear explanation of the house and supporting facilities, otherwise you will bear the corresponding liability for breach of contract. It should also be noted that after the government approves the construction plan and construction scheme, the developer cannot change the planning and design without authorization, even if it is approved by the administrative department, it will constitute a breach of contract. Should bear the responsibility for breach of contract. Excessive commercial boasting in sales advertisements and false propaganda about the environment and public facilities outside the planning scope of commercial housing, if not included in the contract, should not be regarded as the contents of the contract. However, it should also bear certain responsibility for contracting fault, such as "ideal residence, first choice for home purchase, unlimited appreciation potential".

Verb (abbreviation of verb) The validity of contract registration and filing.

1. China < <; Paragraph 2 of Article 44 stipulates that "the pre-sale of commercial housing shall be reported to the real estate management department and land management department of the people's government at or above the county level for registration and filing in accordance with the relevant provisions of the state." This is an administrative regulation, not a standard of contract validity. If a party to a commercial housing sales contract requests to confirm that the pre-sale contract is invalid on the grounds that it has not gone through the registration formalities in accordance with the provisions of laws and administrative regulations, it will not be supported.

2. However, if the parties agree in the contract that the entry into force of the pre-sale contract of commercial housing is based on the registration and filing procedures, the agreement is valid and should be followed. The law here fully respects the autonomy of the parties. However, if one party has fulfilled its main obligations, except what the other party has accepted. For example, the two sides agreed that the contract will take effect from the date of registration, but the buyer has paid most of the house price to the developer. At this time, although the contract registration procedures have not been completed, the pre-sale contract has also taken effect. This is consistent with Article 36 of the Contract Law.

Lawyer Zhao believes that the registration of pre-sale contracts is very important for buyers. This is called advance notice registration in property law. First of all, after the advance notice registration, the buyer will have the protection of property law. Third parties will no longer be able to buy houses in the name of bona fide third parties. Secondly, after the advance notice registration, the buyer can also resist the priority of the commercial housing construction contractor for the project discount or reference auction price. Article 286 of the Contract Law stipulates that if the employer fails to pay the project payment, the contractor has the priority to be compensated. According to the provisions of the relevant judicial interpretation in the Supreme People's Court, after consumers pay all or most of the price of commercial housing, the contractor does not enjoy the priority right of compensation for the project payment of commercial housing to the buyer. Therefore, property buyers can entrust a lawyer to inquire whether the developer has gone through the relevant pre-sale contract registration and filing procedures.

Lawyer Zhao believes that it is also important for developers to go through the pre-purchase registration procedures as soon as possible. If the pre-seller improperly prevents the formation of conditions for his own benefit, it is deemed that the conditions have been achieved. For example, the contract stipulates that registration and filing procedures are the conditions for the contract to take effect. However, due to the soaring housing prices caused by the new highway near commercial housing, developers have been dragging the pre-sale registration procedures, in fact, in order to prevent the conditions from being reached. In this case, it should be considered that the attached conditions have been realized and the developer will bear the corresponding liability for breach of contract.

The priority of the agreement on compensation and resettlement for demolition with intransitive verbs.

1. After the demolisher and the demolished person conclude the demolition compensation and resettlement agreement in the form of property right exchange, the demolished person will sell the resettlement house to a third person before the house is delivered, and the ownership will be transferred to the demolished person. In this case, who should own the resettlement house? According to the provisions of the Contract Law and the Property Law, the two contracts are valid, and the ownership of the compensation resettlement house belongs to the demolished person or the third person who has gone through the house ownership registration formalities first. The party that has not obtained the ownership of the house may claim the liability for breach of contract from the demolition.

2. If the parties in the demolition compensation and resettlement agreement not only agree on the general contents such as the house compensation method, the area of the house to be resettled and the transition period, but also clarify the location and use of the house to be resettled, under the special agreement, the house is specific and belongs to the special creditor's rights, so it has the priority of the special creditor's rights, that is, the property right of the creditor's rights. Even if the third person has gone through the registration formalities for the transfer of house ownership, the demolished person can also request the cancellation of registration based on the property right of special creditor's rights and get the demolished house first. The third party's property right change registration shall not oppose the property claim of the demolished person. A third party may claim the liability for breach of contract from the demolisher according to the contract with the demolisher.

3. Lawyer Zhao believes that for buyers, when signing the compensation and replacement agreement for demolition and resettlement, the demolition person must be required to make a clear agreement on the area, location and use of the resettlement house to ensure that the ownership of the resettlement house can be obtained.

Lawyer Zhao believes that for demolition, it is not allowed to sell one room and two halls, so as not to cause compensation for breach of contract.

Seven. Punitive damages for breach of contract and fraud.

1. After the conclusion of the commercial housing sales contract, if the seller fails to inform the buyer to mortgage or sell the house to a third party, thus the purpose of the commercial housing sales contract cannot be realized, the buyer who cannot obtain the house can request to terminate the contract, return the paid house price and interest, and compensate for the losses, or request the seller to bear the compensation liability of not more than twice the paid house price. Article 47 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Guarantee Law stipulates that "if houses and other buildings that have not been built or are being built according to law are mortgaged, and the parties have registered the mortgaged property, the people's court may determine that the mortgage is valid." In other words, if the developer mortgages the existing house or auction house, as long as the ownership of the house is not transferred to the buyer and the mortgage registration formalities are handled according to law, the mortgage contract can be effectively established. Mortgage takes precedence over creditor's rights, therefore, the buyer can't resist mortgage, can't ask for exemption from the mortgage burden set on the house, and can only ask for compensation for breach of contract and terminate the contract. At this point, the buyer can ask the developer to pay twice the liquidated damages. In the case that the developer sells one house and two houses, the ownership of the house belongs to the buyer who registered the ownership first. If the ownership is not registered, the house will be awarded to the buyer who delivered it first. If it is not registered or delivered, it shall be awarded to the buyer who entered into the contract first.

2. If the seller intentionally conceals the fact that he has not obtained the pre-sale permit or provided a false pre-sale permit, or deliberately conceals the fact that the house he sells has been mortgaged, sold to a third party or relocated, resulting in the invalidation or cancellation or dissolution of the contract, the buyer may demand the return of the paid house price, interest and compensation for losses, and may demand the seller to bear the compensation liability not exceeding twice the paid house price.

Lawyer Zhao believes that for property buyers, once they know that the developer has sold or mortgaged the house before and after the conclusion of the sales contract, or sold the house without obtaining the pre-sale permit, they can claim punitive damages for breach of contract or fraud from the developer. If it can be proved that the developer colluded maliciously with a third party, it can also claim that the sales contract concluded separately is invalid, so as to obtain the ownership of the house.

Lawyer Zhao believes that for developers, there should be no such breach of contract and fraud, otherwise they will face punitive damages.

8. Housing ownership transfer and risk transfer.

1. The transfer and possession of the house shall be regarded as the delivery of the house. Unless otherwise agreed by the parties.

2. The risk of damage or loss of the house shall be borne by the seller before delivery and by the buyer after delivery. If the buyer refuses to accept the seller's written delivery notice without justifiable reasons, the risk of damage or loss of the house shall be borne by the buyer from the delivery date specified in the written delivery notice, unless it is otherwise stipulated by law or agreed by the parties. Generally speaking, the risk of real estate is transferred from the date of ownership change registration, but this article has made other provisions, and the risk is transferred from the time the house is delivered for use. For example, a fire broke out on the second day after the house was delivered for use, resulting in the loss of the house, and the loss should be borne by the buyer. The buyer cannot claim that the loss of the house should be borne by the developer just because the developer has not registered the ownership transfer.

Lawyer Zhao believes that for property buyers, after the transfer of the house, it is necessary to properly manage the house. If there is a risk, it should be borne by themselves.

4. Lawyer Zhao believes that for developers, it is necessary to properly keep the notice of delivery of the house to clarify the responsibility after the risk occurs.

Nine. Housing quality dispute.

1. If the quality of the main structure of the commercial house is unqualified and cannot be delivered, or it is indeed unqualified after delivery, the buyer may request to terminate the contract and compensate for the losses. The main structure of the house includes two parts: the foundation and the main structure on the ground. < & lt； It is stipulated that the quality of foundation engineering and main structure must be guaranteed within the reasonable service life of the building. < < General Principles for Civil Building Design (Trial) > > The service life of the main structure of civil buildings is divided into four grades. After a dispute occurs, the service life of the building can be determined by the original design department or the relevant technical department.

2. If the quality of the house seriously affects the normal living and use, the buyer may request to terminate the contract and compensate for the losses. During the warranty period, the Employer shall be responsible for the repair. If the developer refuses or delays the maintenance within a reasonable period of time, the buyer can maintain it by himself or entrust others to maintain it. The repair cost and other losses caused during the repair period shall be borne by the developer.

3. Lawyer Zhao believes that for property buyers, it is necessary to check the project completion acceptance certificate, project quality guarantee, and housing instruction manual submitted by the developer when collecting the house, and check the delivered house. If serious quality problems are found, they can terminate the contract and demand compensation for losses. If it is a general quality problem, it should be raised to the developer in time during the warranty period. If developers refuse or delay maintenance, they should keep relevant evidence. After self-maintenance or entrusting others to repair, you can claim the maintenance fee from the developer.

4. Lawyer Zhao believes that for developers, when delivering the house, they should submit the project completion acceptance certificate, the project quality guarantee and the house instruction manual to the buyer. If quality problems are found during the warranty period, they should be repaired for the owner in time to avoid causing greater economic losses to the owner.

X. housing area disputes.

1. If the delivered construction area is inconsistent with the area agreed in the contract, it shall be handled in accordance with the contract.

2. If there is no agreement in the contract, and the absolute value of the area error ratio is less than 3%, the settlement shall be made at the price agreed in the contract, and the buyer cannot request to terminate the contract.

3. If the area error ratio exceeds 3%, the buyer's request to terminate the contract, compensate for the losses and return the paid house price and interest shall be supported. If the area of the house is larger than that agreed in the contract, the part of the house price with an area error ratio of less than 3% shall be made up by the buyer at the agreed price, and the part with an area error ratio of more than 3% shall be borne by the developer, and the ownership shall belong to the buyer. If the actual area of the house is less than the area agreed in the contract, the house price and interest for the part with an area error ratio less than 3% shall be returned to the buyer by the developer, and the house price for the part with an area error ratio greater than 3% shall be returned to the buyer by the developer twice. In addition, if there is an error in the pool area, this rule also applies.

4. Lawyer Zhao believes that for buyers, the solution after the error in the delivery area should be clearly stipulated in the purchase contract. And the basis for calculating the area. Generally speaking, it is agreed to use the surveying and mapping results table issued by surveying and mapping institutions as the basis for calculating the area of commercial housing delivered. The real estate administrative department shall issue the certificate of commercial housing ownership according to the construction area determined by surveying and mapping institutions and approved by developers and owners. If the surveying and mapping institutions exceed the allowable technical error range stipulated by the state and cause losses to the employer or the buyer, they shall be liable for compensation. If the buyer has any objection to the surveying and mapping results provided by the surveying and mapping unit, he may entrust a nationally recognized real estate surveying and mapping results evaluation agency for evaluation. At the stage of litigation or arbitration, you may apply to the court or arbitration institution for entrustment.

Lawyer Zhao believes that for developers, there should also be an area error agreement in the construction contract with the construction contractor to avoid unilateral liability for compensation. In addition, if the planning changes approved by the planning department and the design changes agreed by the design unit lead to changes in the structure and area of commercial housing, the developer shall notify the buyer in writing within 10 days from the date of establishment of the changes. The buyer has the right to give a written reply on whether to return the house within 15 days. If the buyer fails to give a reply, it shall be deemed as accepting the price change caused by the change. If the developer fails to fulfill the notification obligation, it shall be liable for breach of contract. However, the principle of dealing with the area difference caused by this does not apply to this clause, and both parties should sign a supplementary contract again.

The exercise and time limit of the right to terminate the commercial housing sales contract.

1. When the developer delays delivery or the buyer delays delivery, if the defaulting party fails to perform within a reasonable period of three months after being urged, the other party shall have the right to terminate the contract.

2. If the party fails to exercise the right of cancellation within a certain period of time, it will lose the right of cancellation. If the law or the parties have not agreed on the time limit for exercising the cancellation right, the breaching party has the right to urge the party entitled to the cancellation right to exercise the cancellation right within a reasonable time limit. After receiving the reminder, the party entitled to terminate the contract shall notify the breaching party whether to terminate the contract as soon as possible and within a reasonable period of three months. If the breaching party is not notified after three months, the right to terminate the contract will be lost. If the defaulting party fails to urge, the observant party shall exercise the right to terminate the contract within one year (agreed time limit), otherwise it will lose the right to terminate the contract. Although this year is the scheduled period, as long as the other party requests a reminder within one year when the creditor exercises the right to terminate the contract, the time limit for the elimination of the right to terminate the contract should be extended by three months.

Lawyer Zhao believes that for property buyers, it is necessary to keep the notification procedure for urging developers when developers delay delivery. If the developer fails to deliver the house within three months, he has the right to terminate the contract. If he wants to terminate the contract, he must exercise the right of termination within one year after he enjoys the right of termination, otherwise he will lose the right of termination.

Lawyer Zhao believes that it is necessary for developers to keep the notification procedure for urging the buyer when the buyer delays payment. If the buyer still fails to pay within three months, the developer has the right to terminate the contract If you want to terminate the contract, you must exercise it within one year after you have the right to terminate it, otherwise you will lose the right to terminate it.

Twelve. Adjustment and determination of liquidated damages.

1. If the liquidated damages agreed in the contract are too high, the parties may request a reduction, subject to the liquidated damages exceeding 30% of the losses caused. If the liquidated damages stipulated in the contract are too low, the parties may request an increase, and the amount of liquidated damages shall be determined according to the losses caused by the breach of contract. If both liquidated damages and fines are stipulated in the contract, the overdue fine shall be regarded as overdue liquidated damages. Article 42 of the Supreme People's Court Fa Fa Fa Fa Fa [1996] No.2 stipulates that "if the contract stipulates liquidated damages and fines, or only stipulates fines, as long as the amount does not exceed the total amount of unfulfilled parts, the fines can be treated as liquidated damages."

2. If the contract does not stipulate the amount of liquidated damages or the calculation method of losses, if the payment is overdue, it shall be calculated according to the total unpaid house purchase price and the standard for financial institutions to collect overdue loan interest stipulated by the People's Bank of China. Overdue delivery, in accordance with the relevant departments announced or qualified real estate appraisal agencies to assess the same lot of similar housing rent standards to determine.

Lawyer Zhao believes that for property buyers, when concluding a house purchase contract, we must pay attention to the liability clause for breach of contract and whether the liquidated damages are legal, too high or too low, and whether they are equal. If the developer fails to deliver the house within the time limit, he can sue the developer for breach of contract according to the contract or legal standards.

Lawyer Zhao believes that for developers, a reasonable standard of liquidated damages should be agreed when drawing up a contract. If the buyer fails to pay in time, he can claim the overdue loan interest from the buyer according to the agreement or legal standards, generally at the interest rate of three ten thousandths per day.

13. The developer's responsibility for delaying or not handling the house ownership certificate.

1. If the buyer fails to obtain the property ownership certificate within the time limit agreed in the contract, or within 90 days from the delivery date of the auction house, or within 90 days from the signing date of the existing house sales contract, the developer shall bear the liability for breach of contract. If there is no liability for breach of contract in the contract, it can be calculated according to the standard of charging interest for overdue loans by financial institutions stipulated by the People's Bank of China.

2. If, due to the developer's reasons, the owner cannot handle the real estate license after the expiration of one year as stipulated in the contract or the legal time limit, the buyer may sue to terminate the contract and compensate for the losses. If it is impossible to submit complete supporting documents to the competent authorities due to the developer's reasons, such as state-owned land use right certificate, construction project planning permit, comprehensive acceptance certificate, housing construction surveying and mapping results report, housing floor plan, etc. If it is impossible to register the real estate, the buyer can sue to terminate the contract. Lawyer Zhao believes that if the buyer fails to handle the real estate license within the agreed or statutory time limit due to the developer, he can claim liquidated damages from the developer at the interest rate of three ten thousandths per day, and the period can be counted from the date when the developer should handle the real estate license to the date of prosecution. The reasons why the buyer can't get the real estate license within the specified time are complicated, which may include the following reasons: the developer's land use procedures are illegal, the developer has not paid all the land use right transfer fees, the developer has illegally built houses, the developer can't provide relevant information to the competent authorities, and the mortgage right has not been cancelled. The public property maintenance fund collected has not been turned over, etc. In reality, such cases often occur, and the author has represented such cases, and the parties finally reached mediation. As for the limitation of action, it is generally exercised within two years from the date when you know or should know that your legitimate rights and interests have been infringed. However, such cases have been in a state of continuous breach of contract, and developers generally do not make it clear that they will not apply for real estate licenses for owners. Therefore, as long as the developer does not clearly indicate that he will not apply for the real estate license, the limitation of action is impossible. Therefore, in practice, if you haven't applied for a real estate license after five or six years, you can still claim compensation for breach of contract from the developer. Of course, they can also choose to sue to terminate the contract after one year.

4. Lawyer Zhao believes that for developers, in the process of handling the real estate license for the owners, they must fulfill their obligation to inform the owners. Attention should be paid to retaining evidence to prove that you have notified the owner to handle the real estate license, so as to avoid being unable to handle the real estate license for the owner within the agreed or statutory time limit due to personal failure to notify.

Disputes over the exclusive sale contract of commercial housing.

1. Concept: The developer and the underwriter agree that the developer will hand over the houses developed and built by the developer to the underwriter for sale in the name of the developer, and the unsold houses will be purchased by the underwriter at the underwriting price agreed in the contract, unless otherwise agreed. If the underwriting contract between the developer and the underwriter is established, all unsold houses should be purchased by the underwriter even if there is no agreement in the contract on how to deal with the unsold houses of the underwriter, or the agreement is not clear. In the absence of clear provisions on underwriting in Chinese laws and administrative regulations, the underwriting contract cannot be deemed invalid on the grounds that the underwriter does not have the qualification to operate real estate.

2. If the developer sells the house that has been agreed to be underwritten by the underwriter, the underwriter may sue the developer for compensation, unless otherwise agreed by both parties.

Lawyer Zhao believes that for developers, it is necessary to conclude an exclusive sales contract and strictly abide by it.

Lawyer Zhao believes that the underwriter should also conclude an underwriting contract. If the developer is found to have violated the contract to sell the house, he can claim his own losses from the developer. Loss can refer to the difference between the average price of houses sold by underwriters and the sales price of the same houses in the market.

Fifteen. Commercial housing mortgage contract dispute

1. Mortgage loan contract means that in addition to the commercial housing sales contract concluded between the buyer and the developer, the developer, the bank and the buyer conclude a commercial housing mortgage loan contract, and the buyer pays part of the house price down to the developer, and the bank lends the remaining house price to the buyer at one time, but not directly. Instead, the loan will be credited to the developer's bank account, and the buyer will hand over the commercial housing sales contract to the bank before handing over the house, and the developer will guarantee it. After the developer delivers the commercial house to the buyer, the developer and the buyer mortgage the commercial house to the bank. The buyer will pay the bank in installments until the principal and interest of the bank are paid off. If the buyer can't pay off the due principal and interest, the bank can mortgage the property to get the priority of compensation.

2. The commercial housing sales contract stipulates that the buyer pays by secured loan, but if the secured loan contract cannot be concluded due to one party's reasons, so that the commercial housing sales contract cannot be continued, both parties may request to terminate the contract and compensate for the losses. If the guarantee contract cannot be concluded due to reasons not attributable to both parties, the parties may request to terminate the contract, and the developer shall return the house purchase money and interest collected to the buyer.

3. If the commercial housing sales contract is confirmed to be invalid or revoked or dissolved, this will make the purpose of the mortgage loan contract impossible, and the parties may request the dissolution of the mortgage loan contract. After the termination of the mortgage loan contract, the loan interest charged by the bank before this shall be returned to the buyer after deducting the reasonable loan interest. After the termination of the contract, the developer shall return the house purchase loan received to the bank and the principal and interest of the house purchase money received to the buyer.

Lawyer Zhao believes that for property buyers, when concluding mortgage loans, they should pay attention to the repayment period, repayment principal and interest, liability for breach of contract, etc., to see if they can afford the monthly payment. Once the monthly payment is not returned, the bank will be sued, and the bank has the right to auction the mortgaged property. In this way, property buyers will not only get the ownership of the house, but also face high liquidated damages.

Lawyer Zhao believes that for developers, after the delivery of commercial housing, buyers should be urged to turn their guarantees into mortgages as soon as possible to avoid their own guarantee responsibilities as soon as possible.

6. Lawyer Zhao believes that for banks, if it is found that the buyer has failed to repay the loan principal and interest for several months in a row, it should fulfill its obligation of informing in time and negotiate with the buyer to make up the arrears as soon as possible. If it still fails, the right to terminate the contract should be prosecuted as soon as possible to avoid losing the right to terminate the contract.

That's all for today. thank you