Zhongcheng Qingtai. Real estate perspective: how to judge the nature of developers to promote school district housing behavior?

Published:

2021-12-20

1. issues raised In order to improve the subsidiary value and attractiveness of the development of real estate, more and more developers choose to take "XX school district housing" and "gathering XX school" as the highlights of house sales promotion. However, the general commercial housing is mostly short-term housing, and the supporting construction is not synchronized with the delivery of housing, there is the possibility that the school district will fail or be inconsistent with the publicity. Article 473, paragraph 2, of the Civil Code clearly states that "commercial advertisements and publicity that meet the conditions for an offer constitute an offer." Does the developer's behavior of publicizing the school district housing constitute an offer? Does the publicized school have any influence on determining whether the developer constitutes a breach of contract within the scope of the commercial housing development plan? How should the developer and consumers avoid the possible risks brought by the school district housing publicity? 2.-related views and cases, refereeing views (I) the developer's publicity on the school district housing has a significant impact on whether the buyer enters into a commercial housing sales contract with him. The publicity color page should be regarded as the content of the contract and is binding on both parties to the contract. The house involved in the case is not in the school district, which is inconsistent with the contract agreement, resulting in the buyer's contract purpose cannot be realized, and the buyer can request to terminate the contract. Case: Cheng Juan and Chen Baoyin's Dispute over Housing Sales Contract (Heze Intermediate People's Court (2020) Lu 17 Civil Judgment No. 1331) The court held that the focus of the dispute in this case is whether the contract for the sale of the house involved should be terminated. First of all, Article 3 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes" stipulates: "Commercial housing sales advertisements and promotional materials are invitations to offer, but the seller's housing and related within the scope of the commercial housing development plan If the explanation and promise made by the facility are specifically determined, and have a significant impact on the conclusion of the commercial housing sales contract and the determination of the housing price, it shall be regarded as an offer. Even if the statement and promise are not included in the contract for the sale of commercial housing, they shall be regarded as the content of the contract, and if the parties violate it, they shall bear the liability for breach of contract." The publicity color page of the appellant Hejian Real Estate Company clearly indicates the words "live in Hejian Zijun City and study in Boyu Middle School". Dong Bowen, the daughter of the appellant Cheng Juan, is in high school. Such publicity by the appellant Hejian Real Estate Company has a significant impact on whether Cheng Juan and Chen Baoyin enter into a commercial housing sales contract with them. Therefore, the publicity color page should be regarded as the content of the contract and binding on both parties to the contract. At present, the house involved in the case is not in the enrollment area of Boyu Middle School in Cao County, which is inconsistent with the contract agreement. As a result, the contract purpose of Cheng Juan and Chen Baoyin cannot be realized. Therefore, the appellants Cheng Juan and Chen Baoyin's request to terminate the commercial housing sales contract involved in the case is based on the law, and the court supports it. If the description and promise made by the (II) developer on the housing and related facilities within the scope of the commercial housing development plan are specifically determined, and have a significant impact on the conclusion of the commercial housing sales contract and the determination of the housing price, it shall be regarded as an offer, even if it is not included in the commercial housing sales contract, It should also be regarded as the content of the contract. Case: Wang Xinxin, Liu Shangneng and Suzhou New High Land Co., Ltd. Commercial Housing Sales Contract Dispute (Jiangsu Suzhou huqiu district People's Court (2018) Su 0505 Minchu No. 3012 Civil Judgment) The court held that:... the defendant repeatedly mentioned "double school district", "the third middle school of the new district and the experimental middle school of science and technology city", "double school district guarantee", "easy to choose a house but difficult to choose a school", "double school district, experimental middle school" and other contents in the pavement and billboards, website publicity materials and WeChat promotion platform of Hongjinwan real estate, according to the above sales advertisements and publicity materials, ordinary buyers can naturally draw the conclusion that the house involved in the case belongs to the school district of Science and Technology City Experimental Middle School (Science and Technology City Branch of New District Experimental Middle School) and their children can study in the school, which will have an important impact on whether to buy the house involved in the case and the determination of the price of the house involved. Therefore, it should be regarded as an offer, even if both parties fail to include the defendant's publicity and promise about the school district in the Commercial Housing Purchase Contract. However, this content shall also be an integral part of the contract and both parties shall be bound by it. According to the relevant documents of the education department of Suzhou City and the High-tech Zone on the division of the school district, the house involved does not belong to the school district of the New District Experimental Middle School Science and Technology City Branch, but belongs to the school district of the New District No. 3 Middle School, so the defendant violated the contract and constituted a breach of contract., Should bear the liability for breach of contract. Real estate belongs to the family's large property, its primary function is to live. Buyers who buy houses in order to choose school districts are different from ordinary buyers. They have reason to believe that they have a deeper understanding of local school district policies, and they should be more cautious than ordinary buyers. Therefore, the choice of the school district is not the contractual purpose of the contract for the sale of the house in this case, and the plaintiff made the decision to purchase the house involved due to negligence and recklessness, and he himself was quite at fault. In view of the fact that the plaintiff did not provide any evidence to prove the price difference between the house involved in the case and the surrounding non-key school district houses in the same location and the same quality at the time of purchase, and the appraisal application for similar cases in the same district was also returned due to the incomparable sample, there is no evidence to prove the loss of the house price difference claimed by the plaintiff. However, the defendant's improper publicity constituted a breach of contract, which caused the dispute in this case. The court considered the fault degree of both parties and the performance of the contract, and decided to compensate the plaintiff for the loss of 10000 yuan. As for the agreement between the two parties in annex 5 to the contract: article 2 of the supplementary agreement to the contract, the court believes that the above agreement, as a standard clause provided by the seller, does not formally prompt and explain the plaintiff in a way sufficient to attract the attention of the buyer. the content excludes the buyer's main rights and exempts itself from its own obligations, thus it is invalid. (III) the school is outside the scope of the housing development plan involved in the case, the supplementary agreement clearly stipulates that the promotion of commercial housing does not constitute a contract offer, the buyer fully understands the terms of the contract when the contract is signed, and the developer does not constitute a breach of contract. Case: Li Shougang's Dispute over Commercial Housing Sales Contract with Jinan Yuantai Real Estate Co., Ltd. and Shandong Beida Resources Real Estate Co., Ltd. (Jinan Intermediate People's Court (2017) Lu 01 Min Zhong No. 5484 Civil Judgment) The court held that the "Notice" issued by Peking University Resources Company... was not included in the commercial housing sales contract, and the seventh paragraph of Article 17 of the contract stipulates that "the sand table, model, model room, publicity materials and publicity advertisements displayed by the seller are only for promotion indication, and do not constitute any offer. All agreements in this contract shall prevail, and the delivery entity shall prevail if there is no agreement in this contract", therefore, the contents of the above notice cannot be regarded as the contents of the contract. Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Contracts for the Sale of Commercial Housing stipulates that ...... the "housing and related facilities" referred to in this provision are "within the scope of the planning for the development of commercial housing", while the school referred to in the Notice does not fall within the scope of the planning for the development of the housing involved, so the provisions of the judicial interpretation cannot be applied to this case. In the case that the content of the school district housing in the "Notice" was not included in the commercial housing sales contract, Li Shougang claimed the relevant liability for breach of contract based on the content. There was no basis in the law, and the first instance did not support it, which was not improper. (IV) the school has changed due to planning adjustment, it is still equipped with corresponding educational resources. The occurrence of this fact is related to the corresponding planning adjustment of the local government. The developer's publicity about the school district housing is not false publicity and does not constitute a breach of contract. Case: Wu Kouzhu, Miao Yamin and Ocean Real Estate Zhenjiang Co., Ltd. Commercial Housing Sales Contract Dispute (Jiangsu Higher People's Court (2017) Su Minshen No. 957 Civil Judgment) The court held that there was a primary school originally planned in the third phase plot of Sino-Ocean Company, but according to the planning adjustment of Zhenjiang City Planning Committee, it was decided that the primary school and the junior high school reserved in the resettlement house on the east side of the third phase plot of Sino-Ocean Company should be merged into a nine-year consistent school. ... Even if it is confirmed that the introduction of the propaganda of Runzhou Experimental Primary School by Ocean Company is indeed an offer, the original primary school is changed to a nine-year consistent school due to planning adjustment, and the teachers are arranged by the Education Bureau of Runzhou District, Zhenjiang Experimental School and Runzhou Experimental Primary School as a whole, and they are still equipped with corresponding educational resources, and the school actually built is changed from a primary school to a nine-year consistent school, which is related to a consistent school. Therefore, the 1. Court of Second Instance did not support Wu Kaozhu and Miao Yamin's claim that the Ocean Company "introduced Runzhou Experimental Primary School" as false propaganda, which constituted a breach of contract and also constituted fraud. 3. Summary Article 472 of the Civil Code provides for the definition and constituent elements of an offer, and article 473, paragraph 2, provides that "if the content of commercial advertisements and publicity meets the conditions of an offer, it constitutes an offer." Article 3 of the interpretation of the Supreme People's Court on Several Issues concerning the application of law in the trial of disputes over commercial housing sales contracts stipulates that "the sales advertisements and publicity materials of commercial housing are invitation to offer, but the seller's explanation and promise on the housing and related facilities within the scope of the commercial housing development plan are specifically determined, and have a significant impact on the conclusion of the commercial housing sales contract and the determination of the housing price, It constitutes an offer. The statement and promise, even if it is not included in the contract for the sale of commercial housing, shall be the content of the contract, and if the parties violate it, they shall bear the liability for breach of contract." Whether the developer's behavior of publicizing the school district housing constitutes an offer is the key to judging whether the developer is in breach of contract and whether the contract for the sale of commercial housing can be terminated. One point of view is that commercial housing and related facilities generally include commercial housing itself and the supporting infrastructure and public buildings of commercial housing. Schools are not within the scope of commercial housing development planning. Supporting schools are decided by the local government's corresponding planning and adjustment, and are not based on the will of the developer. The relevant commercial housing sales contract also clearly stipulates that the content of the contract shall prevail. There is no guarantee about the school in the contract. The publicity of the school district housing cannot constitute an offer, there is no possibility of default by the developer; however, if the school is indeed within the scope of the commercial housing development plan, the school advertised by the developer does not exist or is different from the school actually attended, there is a risk of being identified as an offer and constituting a default. Another point of view is that there are transportation, schools, hospitals and other supporting facilities around the house, and the school should belong to the relevant facilities within the scope of the commercial housing development plan. The promise made by the publicity is clear and definite, and the publicity of xx school has an important impact on whether the buyers conclude the commercial housing sales contract and the determination of the housing price. The publicity of the school district housing constitutes an offer, and the failure or change of the school district leads to the developer to breach of contract, should bear the liability for compensation, the circumstances are serious so that the buyer can not achieve the purpose of school may have the risk of termination of the contract. In practice, local courts have slightly different criteria for judging whether the developer's publicity of the school district house constitutes an offer, which needs to be judged in combination with the actual situation of the case. Even if most courts determine that the developer's publicity of the school district house constitutes an offer, the inconsistency between the school and the publicity when the house is actually delivered constitutes a breach of contract. In most cases, the breach of contract has not reached the level of termination of the contract, but the developer should bear certain liability. 4. Risk Alert Our lawyers believe that developers should raise their risk awareness when promoting commercial housing, carefully carry out advertising activities, avoid misleading publicity, and clearly mark the behavior as an invitation to offer in publicity materials such as leaflets and advertising walls, and the actual commercial housing sales contract signed by both parties shall prevail. In addition, because the commercial housing sales contract is a standard contract provided by the developer, there is a risk that individual clauses will be recognized as standard clauses, the important terms can be prompted and explained in a way that is sufficient to attract the attention of the buyer, and the buyer can be fully explained when signing the contract, and it is clear that "if the agreement in the commercial housing sales contract is inconsistent with the advertising agreement, the agreement in the sales contract shall prevail". As an important asset of the family, consumers should exercise prudent care when buying a house, have an in-depth understanding of the local school district policy, and avoid taking losses due to negligence and rash decisions to buy a house.

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