Plaintiff: Huang
Defendant: a real estate development company
The plaintiff Huang and the defendant signed a pre-sale commercial housing agreement with a real estate development company in this city on July 15, 2003. the defendant sold to the plaintiff a house with three rooms and two rooms on the first floor of the east unit of the second building of a residential building developed by the defendant, with a house price of 120000 yuan. The plaintiff paid the house in a lump sum on the same day. The contract does not stipulate the completion date, the quality of commercial housing and other terms. It was not until March 12, 2004 that the defendant, at the request of the plaintiff, used the model text of the commercial housing sales contract to conclude a pre-sale commercial housing contract with the plaintiff. After the contract was signed, when the plaintiff obtained the house key from the defendant to check the house, he found that the house had been occupied by someone else. As a result, the plaintiff found the defendant, hoping that the defendant could solve the problem of the house being occupied, but the defendant ignored it. Later, the plaintiff learned after inquiry that the defendant concealed the fact that he did not apply for a commercial housing pre-sale license and pre-sold commercial housing. By the time the plaintiff sued, the defendant still did not obtain the commercial housing pre-sale permit, and the community project developed by him had not been completed. The plaintiff requests: (1) request to confirm that the commercial housing sales contract signed by the original and the defendant is invalid; (2) return 120000 yuan to the plaintiff and compensate 12887.83 yuan for interest and loss; the defendant bears the liability for compensation of 100000 yuan.
[trial result]
After hearing, the court found that the plaintiff and the defendant signed an agreement on the pre-sale of commercial housing on July 15, 2003, but the defendant did not obtain a permit for the pre-sale of commercial housing when signing the contract for the pre-sale of commercial housing. Article 2 of the interpretation of several issues concerning the trial of Commercial Housing sales contract disputes of the Supreme people's Court (hereinafter referred to as "the interpretation") stipulates that if the seller has not obtained the commercial housing pre-sale license certificate, the commercial housing pre-sale contract concluded with the buyer shall be determined to be invalid, but if the seller obtains the commercial housing pre-sale license certificate before suing, it may be found to be valid. Therefore, the agreement is a civil act whose validity is to be determined. On March 12, 2004, at the repeated request of the plaintiff, the defendant used the model text of the commercial housing sales contract to conclude a pre-sale commercial housing contract with the plaintiff. The defendant did not correct the civil act that needed to be corrected before the plaintiff sued, and the commercial housing pre-sale contract signed by the original and the defendant is an invalid contract. The reason for the invalidity of the contract is that the defendant did not obtain the permit for the pre-sale of commercial housing in accordance with the provisions, and there was a fault in the contracting party, so he should bear the corresponding liability for breach of contract. Article 9 of the interpretation clearly stipulates that when the seller enters into a contract for the sale and sale of commercial housing, under any of the following circumstances, resulting in the invalidation of the contract or the cancellation or termination of the contract, the buyer may request the return of the paid purchase money and interest and compensation for the loss. And may request the seller to bear the liability of not more than twice the amount paid for the purchase: (1) deliberately conceal the fact that the commercial housing pre-sale license has not been obtained or provide a false commercial housing pre-sale license. (2) deliberately conceal the fact that the house sold has been mortgaged; (3) deliberately conceal the fact that the house sold has been sold to a third party or relocated for demolition compensation.
To sum up, the defendant should bear civil liability for obtaining the commercial housing pre-sale license certificate and the commercial housing pre-sale contract signed by the plaintiff is invalid. According to Article 58 of the contract Law, Article 2 and Article 9 of the interpretation, the judgment is as follows: first, the pre-sale contract of commercial housing is invalid; second, the defendant, a real estate development company, returned 120000 yuan to the plaintiff Huang for the purchase of the house and paid interest (from July 15, 2003 to the date of entry into force of the judgment, calculated according to the loan interest rate of the people's Bank of China for the same period).
4. Basic case
On December 8, 2002, after consultation between the original and the defendant, the defendant issued a house purchase contract to the plaintiff, the main contents of which are as follows: the defendant owns a house and sells it to the plaintiff at a price of RMB 283000, with a deposit of RMB 10000. The defaulting party shall pay liquidated damages at 20% of the house price before December 15. The plaintiff immediately paid the defendant a deposit of RMB 10000. When the plaintiff wanted to pay the house price to the defendant, the defendant backed out and did not agree to sell the house to the plaintiff. The plaintiff claims that the sale contract is legal and valid, and the defendant should perform his obligations in accordance with the contract, requiring the defendant to double the deposit and pay the liquidated damages. The defendant argued that the price of the house was far more than RMB 283000. Although the defendant signed the contract for the purchase of the house, the plaintiff did not sign it. The contract is only a certificate for collecting the deposit, not a written contract for the sale of the house. And both parties did not go to the real estate department for registration, which is an invalid contract. I only agree to return the deposit of RMB 10000.
Trial
The court of first instance held that the defendant sold his own house to the plaintiff and received a deposit of 10000 yuan on the certificate paid by the plaintiff. Although the contract issued by the defendant to the plaintiff did not have the plaintiff's signature, the plaintiff always admitted that the contract was the true meaning of both the original and the defendant and was legal and effective. Although the housing sale between the plaintiff and the defendant has not gone through the formalities of property right transfer registration, it does not affect the establishment of the contract for the sale of housing. Later, the defendant backed out and refused to sell the house, which constitutes a breach of contract, and the defendant shall bear the civil liability for breach of contract. According to this judgment: the defendant shall return the deposit of 10000 yuan to the plaintiff and 56600 yuan of liquidated damages to the plaintiff.
5. Basic case
As a result of real estate development and demolition, a development company placed a demolition house for Li and his wife after demolishing the old house. And delivered to Li husband and wife the housing and the house property rights certificates, invoices and other documents used for property rights certificates. On May 26, 2003, Li and his wife signed a house sale agreement with Li, agreeing that the house placed by a development company would be sold to Li at a price of 80000 yuan and a deposit of 20000 yuan. The agreement also agreed that after the property certificate of the husband and wife of Li was done, after the two sides handled the delivery, Li paid the balance of 60000 yuan at one time. On the same day, Li delivered a "deposit" of 20000 yuan to Li. Because Li husband and wife later backed out and were unwilling to perform the contract, Li sued to the court, asking Li husband and wife to continue to perform the contract to assist them in the transfer of house property rights. Li husband and wife argued that their house was transferred without a property right certificate, and the housing sale and purchase agreement signed by both sides violated the relevant provisions and belonged to an invalid contract and should be lifted.
[divergent opinions]
During the trial of this case, there are two different opinions. One opinion is that item (6) of Article 37 of China's Urban Real Estate Management Law stipulates that real estate that has not been registered in accordance with the law to obtain a certificate of ownership shall not be transferred, and that the house sale agreement signed by the original defendant violates the mandatory provisions of the law and is an invalid contract. Another opinion is that the contract for the sale and purchase of houses is entered into voluntarily by both parties, does not violate the provisions of the law, and should be a valid contract.
[comment]
This case is a typical case of housing sales disputes, which is common in social life. The author agrees with the second view, that is, the house sale contract is a valid contract. The defendant shall perform his obligations in accordance with the contract. The reasons are as follows:
1. From the provisions of China's contract law. Article 9 of the Supreme people's Court's interpretation of certain issues concerning the Application of certain issues stipulates: "in accordance with the provisions of paragraph 2 of Article 44 of the contract Law, laws and administrative regulations stipulate that the contract shall go through the formalities of approval." or go through the formalities of approval only after going through the formalities of approval, if the parties concerned have not gone through the formalities of approval or registration before the end of the debate in the court of first instance, or if they have not gone through the formalities of approval or registration. The people's court shall determine that the contract is not effective. Laws and administrative regulations stipulate that the contract shall go through the formalities of registration, but if it is not stipulated that the contract shall take effect after registration, the failure of the parties concerned to go through the registration formalities shall not affect the validity of the contract, and the ownership of the subject matter of the contract and its real right cannot be transferred. " This provision changes the long-standing stipulation that registration directly determines the effectiveness of the contract, and thinks that even if there is no registration, the contract itself is still valid, but the real right can not be transferred. However, the current laws and regulations of our country do not stipulate that the housing sale and purchase contract will not take effect until after registration.
2. The understanding of Article 37 of the Urban Real Estate Management Law. This article stipulates that real estate that has not been registered in accordance with the law to obtain a certificate of ownership shall not be transferred. The purpose of the law is to prevent the unclear real estate from entering the market, disturb the market order and damage the legitimate rights and interests of the parties. The term "non-transferable" here should be understood to mean that the transfer of real right does not occur, but does not affect the validity of the contract. If the unregistered real estate sales contract is determined to be invalid, it is not conducive to protect the legitimate rights and interests of the bona fide parties, to maintain the stability of the transaction order, and to seriously conclude and abide by the sales contract. The understanding of the "title certificate" in this article. The "ownership certificate" here should be understood as the certificate of property rights and other supporting materials that can prove that the parties have ownership of the house. In real life, these documents include the demolition agreement, the certificate issued by a development company, the invoice issued by a development company, the house sales license issued by the housing management department, and so on. In this case, Li and his wife have property rights certificates and invoices for the house, which can prove that the ownership of the house belongs to him, and there is no dispute between the two sides. To sum up, the house in dispute in this case has the certificate of ownership, and the transfer of the house does not violate the provisions of the Urban Real Estate Management Law.
3. From the point of view of the situation when the two parties concluded the contract. When the original and the defendant concluded the sale contract, both parties knew the fact that the house did not have a property right certificate, and the contract was concluded on a voluntary basis by both parties, and the defendant now proposes that repentance violates the principle of good faith.
To sum up, in this case, the house sale contract of the original defendant is legal and valid, and the defendant should perform his obligations in accordance with the contract and assist the plaintiff in the transfer of property rights.
5. Case
Mr. Zhang signed the "Commercial Housing Sale and purchase contract" with the developer by way of mortgage payment, and the contract on the method of payment is as follows:
The buyer and seller agree that the buyer will pay for the house by way of mortgage. The down payment shall be 20% of the total house payment, that is, RMB 120000 yuan, which shall be paid by the buyer within 3 days from the date of signing the contract; the remaining purchase amount, that is, RMB 440000 yuan, shall be paid by the buyer by applying for a loan from the bank, but the buyer shall complete all loan procedures within 30 days from the date of signing the contract and ensure that the seller receives the loan.
After the contract was signed, Mr. Zhang paid the down payment in accordance with the contract and submitted the loan application materials to the bank in time. A month passed quickly, but Mr. Zhang's loan was never put down. after inquiries, the bank refused to grant the loan because Mr. Zhang's ID card number was the same as that of others. Hearing the news, Mr. Zhang immediately went to the police station to make an inquiry and concluded that Mr. Zhang's ID card number was correct. Mr. Zhang held the certificate issued by the police station and went to the bank. The bank read the certificate and still refused to grant the loan. Because the loan was not approved, Mr. Zhang was unable to pay the rest of the purchase, so Mr. Zhang asked the developer to check out.
Comment: According to the provisions of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial House Sales Contract Disputes", if the commercial house sales contract stipulates that the buyer will make payment in the form of a secured loan, the commercial house sales contract fails to be concluded due to reasons that cannot be attributed to both parties. If the guaranteed loan contract for the commercial house sales contract cannot be continued, the parties may request to terminate the contract. In this case, due to reasons beyond Mr. Zhang's will, the loan was not approved, and neither party to the contract was at fault. Therefore, Mr. Zhang has the right to terminate the contract and can ask the developer to refund the purchase price and interest paid.
