Point of View | What kind of quality problems can refuse to accept the house and claim the responsibility of overdue delivery? -- Zhang San v. a real estate company in Qingdao for a dispute over a commercial housing presale contract

zhang san litigation request of first instance:1. A company in Qingdao was ordered to pay Zhang San's liquidated damages of 109807.69 yuan for overdue house delivery (based on the total house price paid of 2178724 yuan, calculated from October 1, 2019 to June 9, 2020 on a daily basis);2. The legal costs of this case shall be borne by a company in Qingdao.

zhang san litigation request of second instance:Revoke the first-instance judgment and change the judgment by a company in Qingdao to bear the late delivery of the house liquidated damages and 1. second-instance litigation costs.

Main facts of the case:In March 2018, a company in Qingdao signed the "Qingdao Commercial Housing presale Contract" with Zhang San, agreeing to hand over the house on October 1, 2019. On October 21, 2019, a company in Qingdao informed Zhang San of the receipt of the house in accordance with the procedures agreed in the contract, and the house has reached the delivery conditions agreed in the contract, that is, "the delivered house has passed the completion and acceptance of the single unit, and Party B has paid the full amount and fulfilled other agreed obligations as agreed". Zhang San found many quality defects in the process of house acceptance, including socket failure, door frame deformation, marble rupture, etc., so Zhang San refused to accept the house and asked for rectification, and the rectification period was overdue, requiring a company in Qingdao to bear the penalty for this period. In addition, the contract stipulates that Party B shall not refuse to accept the house, including "(1) there are quality problems in the house (except for the unqualified main structure and foundation);(2) the decoration and equipment of the house do not meet the standards agreed in the contract;(3) municipal infrastructure and announcement supporting buildings do not meet the standards agreed in the contract".

After receiving the case, the author searched the cases in Qingdao that require developers to bear the responsibility of overdue delivery due to quality problems, such as (2021) Lu 0211 Minchu No. 21053, (2022) Lu 02 Minzhong No. 2964, (2022) Lu 02 Minzhong No. 2526. The quality problems in the above cases are that the toilet is not waterproof, the fine decoration is delivered but the floor tiles are not laid, and a large amount of reinforced concrete is exposed. Combined with the severity of the problem and the rule of thumb of daily life, the court held that the above-mentioned quality problems had reached the level of affecting residence, and the developer should bear the responsibility. The case represented by the author did not appear in the above case. According to the evidence provided by Zhang San, it can be seen that the main quality problems are some sockets not installed, door frame deformation, marble rupture, etc. After trial, the court held that Zhang San should claim repair responsibility, rather than late delivery responsibility, so rejected Zhang San's claim.

According to Article 35 of the "Measures for the Administration of Commercial Housing Sales", "After the commercial housing is delivered for use, if the buyer believes that the quality of the main structure is unqualified, it may entrust a project quality inspection agency to re-verify in accordance with relevant regulations. After verification, if the quality of the main structure is indeed unqualified, the buyer has the right to check out; if it causes losses to the buyer, the real estate development enterprise shall bear the liability for compensation in accordance with the law" and Article 31 of the "Regulations on the Administration of Urban Real Estate Development and Operation" "After the commercial housing is delivered for use, if the purchaser believes that the quality of the main structure is unqualified, he may apply to the project quality supervision unit for re-verification. After verification, if the quality of the main structure is not up to standard, the purchaser has the right to check out; if losses are caused to the purchaser, the real estate development enterprise shall bear the liability for compensation in accordance with the law, and the common commercial housing presale contract in practice will also be clear The main structure and foundation quality problems can be rejected. Therefore, when there is a quality problem of the main structure and the quality of the foundation, it directly affects the safety of the residents, so there is no dispute in practice to reject the house on this grounds.

(2018) Supreme Court Minshen Case No. 3182.In the case, the court held that, after identification, the housing in question existed.The thickness of concrete cover does not meet the design requirements;The maximum deviation of the measured beam does not meet the specification requirements; the foundation of the outdoor household partition wall on the west side exists.Uneven settlement, slanting and tilting;The insulation layer and loose water at the root of the local wall are obviously cracked and sunk, and the inner and outer walls of the basement and the foundation slab have serious leakage defects;The settlement difference does not meet the requirements of the Code for Design of Building Foundation.The appraisal conclusion is: the safety assessment grade is Csu grade,Significantly affect the overall bearing capacity;The usability rating is Css,The status quo significantly affects the overall use of functionality.The appraisal opinion proves that the main structure of the house involved in the case is unqualified and affects the quality of normal living. The original judgment is based on finding out the facts and applying the provisions of Articles 12 and 13 of the Interpretation of Commercial Housing Sales Contracts. There is nothing improper.

In the "Answers to Several Questions of the Higher People's Court of Jiangsu Province on the Trial of Real Estate Contract Disputes", there are relatively clear standards. Therefore, although it is a local standard in Jiangsu Province, it still has reference value. The relevant provisions are as follows:

35. How to judge the situation that seriously affects the normal living use?

Although the house delivered by the seller conforms to the contract, but there are still the following situations that seriously affect the normal living and use, the buyer may refuse to accept it, or request to terminate the contract and compensate for the loss within one year after the house is received, the people's court shall support it:

(1) The seller changes the orientation, house type and other planning and design conditions of the commercial house without authorization;

(2) The house has leakage, abnormal noise, etc., which cannot be found out within a reasonable period of time or cannot be repaired by the seller;

(3) water, electricity, gas and other infrastructure can not be actually put into use;

(4) The fire-fighting facilities have not passed the acceptance or cannot be actually put into use;

(5) The seller fails to disclose the existence of a violation of good customs in the house at the time of the conclusion of the contract;

(6) Other circumstances that seriously affect the normal use of residence.

In practice, there are many kinds of other quality problems, such as leakage and abnormal noise of houses, inability to put water, electricity, gas and other infrastructure into use, and failure of refined decoration houses to meet the standards. There are no clear criteria for judging the above-mentioned problems. A brief summary of common reasons for rejection is as follows:

1. Leakage problem exists and has not been repaired for a long time

(2015) Hang Xi Min Chu Zi No. 215 case.Usually, buyers sign a contract for the sale of commercial housing and pay the consideration in order to obtain a house that can be occupied within the expected time. In this case, the owner asked the developer to bear the responsibility for breach of contract for overdue delivery on the grounds that the water leakage affected the decoration and the developer repaired the water leakage for two years. The court held that: first, judging from the common sense of life, water seepage in a house may lead to failure to decorate, or even if it can be decorated, the decoration process will aggravate water seepage and other consequences. In the event of increased water seepage after renovation of the house, it is bound to increase the difficulty of judging the cause of water seepage and the determination of responsibility. Therefore, the plaintiff requires the defendant to complete the maintenance first, and then carry out renovation and occupancy to avoid greater losses, which is entirely reasonable. Second, the delivery time of the house stipulated in the commercial housing sales contract is before April 30, 2011. After the plaintiff paid all the purchase money, the house involved in the case was not repaired until June 2013. During the two-year period from April 30, 2011 to June 2013, the plaintiff was unable to decorate and move in, and has met the condition that "the quality defects of the house involved in the case affect the plaintiff's normal living and use.

(2018) Zhejiang 02 Min Zhong No. 2725 Case.The appellant Yuyao Green City Real Estate Development Co., Ltd. shall deliver the commercial housing that meets all conditions to the appellee Zhou Jieshuai for use before September 30, 2016. Subsequently, Zhou Jieshuai paid Yuyao Green City Real Estate Development Co., Ltd. a total of 2,193,799 yuan on October 14, 2014 and December 31, 2014 respectively. During the handover process on September 30, 2016, Zhou found that:(1) water seepage at the edge and top of the kitchen downcomer,(2) water seepage at the junction of the downcomer beam and the top surface on the right side of the east balcony, and (3) water seepage at the southeast corner of the second bedroom. The above problems are recorded in the "acceptance opinions" column of the acceptance list for the delivery and acceptance of 8 2201-room residential buildings in jinlanyuan, mingyuan, green city, and in the "acceptance opinions" column, it is recorded that "the house will be delivered after it is processed, and other house inspection steps will be inspected next time". Zhou mou signed the owner's signature and the staff of Yuyao green city real estate development co., ltd. recorded "focus" and signed the facts in the remarks column. After Zhou Jieshuai filed a lawsuit with the court of first instance on December 25, 2017, Yuyao Greentown Real Estate Development Co., Ltd. requested Yuyao Greentown Real Estate Development Co., Ltd. to deliver the purchased house and cooperate with the transfer procedures and payment of liquidated damages. Only on December 26, 2017 did Yuyao Greentown Real Estate Development Co., Ltd. notify Zhou Jieshuai in writing for the second time to handle the house delivery procedures. Therefore, based on the facts ascertained, the court of first instance found that Yuyao Lvcheng Real Estate Development Co., Ltd. was liable for breach of contract for overdue delivery. The court held that there was nothing improper.

2. Infrastructure such as water, electricity and gas cannot be put into use

(2022) Yue 18 Min Zhong No. 75 Case.The court held that the water and electricity facilities of the house involved in the case can meet the daily use of the owner, but the house has not been connected to gas, which does have a great impact on the owner's living and use of the house, and does not meet the requirements for the normal use of commercial housing.... To sum up, after deducting 26 days from the time limit for the overdue house involved in the case, the liquidated damages shall be calculated from December 27, 2020 to the completion of the connection between the indoor gas pipeline of the house involved and the city gas pipe network based on the paid house price and the standard of 1/10000 per day,and the date on which the appellant is notified in writing after ensuring that the gas is properly ventilated.

(2019) Yue 01 Min Zhong 17670. The Court held that:In this case, Tan Zhen, as the buyer, paid the house price in accordance with the contract, Agile Company, as the seller, should transfer the ownership of the house to Tan Zhen, and the right of use in the ownership of the house must meet the requirements at the time of delivery of the house. Housing is for the purpose of living, with normal water and electricity facilities is the necessary facilities for living. Therefore, the house delivered by Agile must meet the basic conditions for the daily life of the buyer. To sum up, because Agile Company provides temporary electricity for the house involved in the case, and cannot guarantee the safety and stability of temporary electricity supply during the electricity consumption period, and cannot meet the basic living requirements that the buyer must have for the delivery of commercial housing, therefore, the house involved in the case has not yet reached the delivery conditions.

There are serious quality problems in the hardcover room.

(2020) Beijing 0106 Minchu No. 22042.Quality Problem: In March 2017, Tian Yanping proposed to Maoyuan Company that the ground marble needs to be replaced with cracks and the porch British jade needs to be replaced with cracks. After Maoyuan Company contacted the stone manufacturer, it was suggested to repair it first, but no consensus was reached. On October 13, 2017, Tian Yanping and Maoyuan Company decided on the final maintenance plan to replace the ground stone and the entrance British jade. On November 21, the stone needs to be replaced. On December 24, Tian Yanping suggested that there were problems with the two stones and needed to be replaced. In early January 2018, the finished product protection work before construction of the 702 house was carried out. All the places except the living room, dining room and kitchen were sealed with plastic sheeting. After construction, the construction was completed on January 23. After acceptance, Tian Yanping felt that there was color difference in the replaced stone and asked for replacement. On the 28th, the stone manufacturer found some stone. Tian Yanping expressed dissatisfaction with the color and pattern. As it was the Spring Festival, after negotiation, Tian Yanping agreed to arrange replacement after the Spring Festival. At the end of April 2018, the floor marble and the British jade at the entrance were replaced. Upon inquiry, the replacement cost shall be borne by Maoyuan Company.

The Court held that:In this case, due to defects in the decoration of the house delivered by Maoyuan Company on January 12, 2017, Tian Yanping was not able to move into House 702 until May 2018. After deducting the 90-day maintenance period agreed in the contract, Maoyuan Company shall be liable for compensation for Tian Yanping's losses during this period. The specific amount shall be determined by our hospital according to Maoyuan Company's breach of contract and Tian Yanping's losses. Regarding Tian Yanping's proposal to replace British jade, Maoyuan Company agrees to this. Our hospital has no objection. Maoyuan Company should replace and repair it within one month.

4, affect the physical health of the buyer.

(2017) Shanghai 02 Min Zhong No. 8972.The court held that: in view of the significant impact of room temperature on formaldehyde release, based on the "Indoor Environmental Monitoring Quality Report" commissioned by Zhang Lin and the test results of judicial appraisal, it should be determined that OCT Company did have the problem of formaldehyde exceeding the standard when delivering the disputed house to Zhang Lin. OCT Company appealed that even if the formaldehyde in the disputed house exceeded the standard, it was a general quality defect, and Zhang Lin could not refuse to accept the house. However, the general quality defects at the time of delivery are based on the premise that they will not bring huge hidden dangers to the user's personal health and safety, and the formaldehyde emission should meet the national standards. Zhang Lin refused to accept the house on the grounds that the formaldehyde emission exceeded the standard, which is based on the law.

Combined with the above case analysis, whether the house can be refused due to quality problems, first of all, should judge whether the quality problem is the main structure quality, foundation quality problems. If you are unable to make a corresponding judgment, you can seek the advice of a professional body. Secondly, after excluding the main body and foundation problems, it should be judged whether the quality problem will affect the residential use of the house. If it is a rough house, it should be judged whether the existing problems will lead to complete failure to decorate or use. If it is a hardcover house, it is necessary to judge whether it meets the hardcover standard, such as whether water, electricity and gas facilities can be used normally. For example, in the above case, the owner raised objection to the stone quality of hardcover house, however, the court finally supported the expenses incurred by the owner during the subsequent replacement of stone materials. Although it did not bear the responsibility for breach of contract for overdue delivery of the house, it supported the loss of the owner's rental house, which can also be regarded as the above-mentioned quality problems and maintenance seriously affecting the residence.

Of course, as mentioned above, there is still a lack of a clear set of criteria for judging what quality issues can be refused. The local standards in Jiangsu Province and the actual cases in various places can only be used as a reference basis. In the course of the court hearing, after the burden of proof is completed, the judge will often make a judgment based on the principle of free heart evidence. And after searching, it may be more likely to require developers to assume responsibility for repair. In view of this, in order to avoid the four-year situation of the case represented by the author, it is recommended that the owner conduct in-depth search and analysis of the cases previously undertaken by the target area or relevant judges before the lawsuit, so as to more accurately grasp the local evaluation criteria.