From March 17 to April 19, 2017, the relevant departments of the Beijing Municipal Government successively issued 11 purchase and loan restrictions, including the "Notice on Improving Commercial Housing Sales and Differentiated Credit Policies", which are commonly known as the "3.17 New Deal". ".
317 New Deal
The implementation of the "3.17 New Deal" has effectively standardized the order of the real estate market, but it has also caused a certain number of disputes. In order to provide more practical judicial guidance to the parties involved in the sale and the intermediary, the Beijing No. 2 Intermediate Court conducted a special investigation on the disputes over the sale and purchase of houses involving the New Deal in the past year on the basis of soliciting the experience and practices of the courts in 5 jurisdictions. A press briefing was held today to put forward suggestions on preventing and handling disputes involving the sale of houses involving the New Deal in light of trial practice.
What is the basic situation of disputes over housing sales contracts involving the New Deal? What are the characteristics?
The basic situation and characteristics of disputes over housing sales contracts involving the New Deal are as follows:
(1) No significant increase in the number of cases
From March 17, 2017 to the present, the second instance of the Second Intermediate People's Court has received less than 1/10 of all housing sales contract disputes, and the number of cases has not increased significantly.
(2) The types of cases are relatively fixed
According to statistics, the cases involving the “3.17 New Deal” housing sales disputes are generally divided into the buyer’s qualifications for buying a house being restricted, the buyer’s house-buying cost increasing, disputes over the responsibility of both parties after the contract is rescinded, and breach of contract in the “chain sale” There are four types of responsibilities, and the types are relatively fixed.
(3) There are significant regional differences
Commercial housing disputes are concentrated in Fengtai, Daxing and Fangshan districts, which are related to the overall urban construction planning of our city. Residential bungalow contract disputes mostly occur in Dongcheng and Xicheng districts, which are concentrated in school districts. This is related to the relative concentration of excellent educational resources in our city.
(4) Most cases are concluded by judgment
As to whether it is really affected by the new policy, whether it can be exempted from liability, whether it is in breach of contract, how to determine the amount of liquidated damages, and how to compensate for losses in serial transactions, all parties to the lawsuit have different psychological expectations and defense reasons, and the judgment scale needs to be further Unite. Therefore, it is difficult to resolve disputes through mediation, and most cases are settled by judgment.
What are the reasons for the disputes?
(1) The implementation of the new policy is vigorous
From the perspective of implementation time, all policies are implemented on the day of release or the next day, with almost no buffer period. Even if all parties have psychological expectations, it is difficult to completely avoid the impact of the new policy. From the content point of view, the new policy has stricter restrictions on the two key factors of home purchase qualification and down payment ratio, resulting in difficulties in fulfilling the contract. From the perspective of the main body of the introduction, it involves a number of departments such as construction, planning, land, finance, education, and taxation, and has formed a comprehensive control over the suppression of housing prices.
(2) There are many disputes over commercial housing
Although the relevant government departments strictly regulate the use of commercial office buildings and prohibit unauthorized use of residential buildings, some buyers still choose to invest and buy because they are not affected by the residential purchase restriction policy and are attracted by the price advantage. After the implementation of the New Deal, the buyer's qualifications for purchasing houses were restricted, which affected the continued performance of the contract and resulted in a lawsuit.
(3) The stagnation of the execution of serial transactions has become an incentive
Due to the persistently high housing prices, the overall loan policy has become stricter. In order to improve the living environment or meet their own needs, most homeowners choose to "change small for large" and "for near by" through chain buying and selling. Due to information asymmetry and many links, time nodes are prone to conflicts. Once the performance of one of the contracts is stagnant, it may lead to the "domino" effect of the relevant contracts, resulting in disputes.
(4) Occasionally, a breach of contract occurs
After the promulgation of the New Deal, buyers and sellers have been unable to interpret or pass through. Some interpret situations that are not affected by the policy as being restricted to confuse the public, some avoid the existing fundamental breach of contract and take a free ride on the New Deal, and some try to "conform" to the conditions of the New Deal in order to achieve the purpose of termination of the contract.
What principles are adhered to in the trial of the case?
(1) Strictly apply the New Deal
In the trial of housing disputes involving the "3.17 New Deal", the court will focus on and strictly review the reasons for contract termination on the basis of reviewing housing conditions, housing eligibility, payment ability, performance, and cancellation to prevent free-riding. For example, although it can be determined that the buyer has indeed lost the qualification to purchase a house due to the New Deal, but the seller has committed a fundamental breach of contract before, it cannot be determined that the reason is not attributable to both parties and the judgment is exempted, and the seller should still bear the responsibility for the breach of contract.
(2) Respect for autonomy of will
For contracts that cannot continue to be performed due to the impact of the new policy, they can generally be handled as exempt from liability, but it should also be checked whether there are other agreements in the contract. If there is an agreement that "the buyer will raise funds by himself when the loan cannot be processed for some reason" or "one-time payment should be made when the loan cannot be processed for some reason", the prior agreement on the payment method in the contract should be respected, and the buyer will take the new policy as the basis. Requests for rescission of the contract shall not be supported.
(3) Ensure the balance of interests
Dispute resolution avoids significant imbalance of interests. If the contract can continue to be performed, the court should make a judgment based on factors such as the degree of performance, the proportion of cost increase, and the credit status of the buyer; another example, if a commercial house is sold to an individual in the name of a residence, the contract is terminated due to the new policy, The relevant regulations were violated at the time of construction, and there was an intention to take advantage of the lack of supervision at the time to make profits. Therefore, the developer's claim of devaluation losses cannot be supported.
(4) Severely crack down on false lawsuits
Preventing and sanctioning false lawsuits is an important part of civil lawsuits. For those who attempt to evade the implementation of the New Deal through fake marriages and divorces, repayment of debts with houses, etc. and constitute false lawsuits, in addition to dismissing the lawsuit claims in accordance with the law, the perpetrators will also be punished in accordance with relevant laws and regulations.
Related Suggestions
(1) Accurate interpretation of relevant policies
First, buyers and sellers of houses are prepared. Contracts that are being performed or negotiated may be affected by the new policy. Both parties need to fully understand the policy, communicate with intermediaries, consult relevant departments if necessary, and predict the possible impact of the policy based on their own circumstances.
Second, all parties should have reasonable psychological expectations. The real estate market is changing rapidly, and policies are issued in a timely manner. All parties should pay close attention to market changes, especially when prices fluctuate sharply, the possibility of policy changes again will increase.
(2) Perfecting the contract and signing it prudently
The first is to prudently sign "chain orders". Such contracts have many links and are likely to be affected by policies and should be avoided as much as possible. If it is indeed necessary to sign, it can be added that the third party's breach of contract causes the contract to fail to perform the clauses that both parties can be exempted from liability.
The second is to clarify the performance nodes. Important nodes such as online signing, assessment, face-to-face signing, tax payment, transfer of ownership, and house handover should be clearly stipulated, as well as liability for breach of contract, to prevent immediate changes in policies.
The third is to properly agree on the performance time. There is a direct relationship between government supervision and contract performance time. Normally, the contract can be completed within 90 days to 120 days. However, if it involves different administrative areas such as household registration audit outside Beijing and the listing of central production houses or the nature of the house, it may exceed the normal time. , it is necessary to calculate the time reasonably according to the specific situation, to avoid that the agreed time is too short to lead to insufficient performance time, and it is also necessary to avoid too long to increase the risk.
(3) Integrity performance and timely stop loss
The first is to establish an attitude of integrity. The rapid rise in housing prices, the introduction of regulatory policies, and subsequent changes in housing prices continue to affect the performance of contracts. Both buyers and sellers should adjust their mentality and uphold the philosophy that contracts should be followed in good faith even if house prices fluctuate. Otherwise, you may face the risk of litigation or liability for breach of contract.
The second is to avoid long-term stagnation of contract performance. After a dispute arises between the two parties, it is necessary to first define whether it is indeed affected by the New Deal, so as to prevent taking the opportunity to take advantage of the New Deal. For those that cannot be performed due to the impact of the new policy, the two parties should negotiate as soon as possible, and if the negotiation fails, a lawsuit should be filed in a timely manner to avoid further losses.
Third, the intermediary party should play a good role. As a professional organization, intermediary companies should strictly and accurately interpret the new policy to both buyers and sellers of houses in a timely manner, and fulfill their obligation to inform them. They should not even make promises without authorization and assist both parties to do false procedures to avoid the policy. In addition, a corresponding supporting mechanism should be established to assist in resolving conflicts. If disputes can be temporarily shelved, they can continue to perform to promote performance. If they cannot perform, they should sell or buy another house as soon as possible. Records, WeChat messages, text messages and written evidence should be retained during the negotiation process. If the contract is terminated due to the new policy, it should also be coordinated in the cost of intermediary services. Do not circumvent the policy by fluke or edge ball.
Housing sales disputes involve the "3.17 New Deal"
Typical Case
Case number one
Commercial housing is affected by the new policy to terminate the contract
Developer sues for devaluation losses not supported
The developer sued the buyer to pay for the loss of house depreciation caused by the failure to perform the contract for commercial housing. The buyer argued that due to the impact of the New Deal, his qualifications for buying a house were restricted and he could not buy a house, so he should not bear the loss.
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After hearing, the court held that the buyer lost the qualification to purchase the house due to the restrictions of the new policy, which made the house sale contract unable to continue to be performed. Ultimately, the court ruling rejected the developer's request.
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Case 2
Eligibility to buy a house is restricted due to not meeting the social security requirements
contract release
The buyer claimed that he was a retiree and did not meet the conditions for making social security contributions for five consecutive years, and his qualifications for house purchases were restricted due to the impact of the New Deal, and requested to terminate the contract and refund the deposit. The seller argued that there were loopholes in the New Deal, and the buyer should negotiate with the relevant departments.
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After hearing, the court held that the introduction of the New Deal restricted the buyer's eligibility for house purchase, resulting in the failure to perform the house sales contract, and the purpose of the contract for both parties could no longer be achieved. The termination of the contract was due to reasons that were not attributable to both parties, and neither party was at fault, so it was decided to terminate the contract and return the deposit.
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Case 3
Affected by the New Deal, the down payment increased by more than one million
Judgment to rescind the contract
The seller claimed that although the buyer's loan amount was limited, it could raise funds to purchase a house, and the refusal to perform the contract has constituted a fundamental breach of contract and should be held liable for the breach. The buyer argued that he was a student and that the new policy resulted in an increase of more than 1 million down payment, and neither he nor his family could afford to pay.
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After hearing, the court held that, according to the buyer's personal situation, the bank's approved loan amount was reduced by more than 1 million compared with the proposed loan amount, and the performance cost was greatly increased. It has had a serious impact on the buyers whose families are in other places and who are still studying, and even the ability of their families to perform the contract. In the end, it was decided that the contract was exempted from liability.
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Case 4
chain sale
The liability for breach of contract for each contract should be resolved within its own framework
The seller claimed that it was a chain of sales and that the buyer in this case was unable to pay, resulting in his inability to perform the sales contract with the person outside the case, so he compensated for a loss of 600,000 yuan, and the buyer should bear the loss. The buyer argues that the new policy has limited its ability to pay, and both parties should not be responsible for rescission, and the seller should bear the compensation for the outsider.
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The court held that, according to the principle of privity of contracts, the performance or rescission of the two contracts in a chain sale has no necessary connection and should be resolved within the framework of their respective contracts. Unless there is an agreement between the parties, the counterparty of the other contract is not obligated to the other party for the losses incurred in one contract. In the end, the judgment was made to rescind the contract and refund the deposit, rejecting the seller's request for the buyer to bear the loss.
Contributed by: Beijing Second Intermediate People's Court
Photography: Wang Xingang
Editor: Xu Yingge Wang Xi