Real estate perspective: in the case of the developer's breach of contract, how to determine the loss compensation for the opening of the door outside the door.
Published:
2021-04-02
Presentation of 1. issues
In the sale of commercial housing, the developer and the buyer signed a presale contract for the sale of commercial housing, the commercial housing has not yet been completed, so the actual situation of the future delivery of housing, such as the area, the door opening orientation, etc. are often reflected in the contract or as an annex to the contract in the household plan. In practice, if the contract or as an annex to the contract in the household plan reflected in the door to open the door to the outside, and the delivery of the house door to open the door to the inside, the buyer sued for compensation from the developer, in the case of the developer's breach of contract, the developer to the buyer's loss compensation how to determine? For this issue, this paper will be combined with judicial precedents for a brief analysis.
2. Case Retrieval
Case 1: Dispute over Commercial Housing Sales Contract between Zhou Mou and an Art and Creative Industry Development Co., Ltd.-Civil Judgment of Kunshan Municipal People's Court (2017) Su 0583 Minchu No. 6684
In November 2012, Zhou signed a house sales contract with an art and creative industry development co., ltd. in the contract, the floor plan of the house structure clearly indicated that the entrance door was open outside, but when the house was actually handed over, Zhou found that the entrance door had become open inside. Zhou asked an art and creative industry development co., ltd. to compensate for its losses on the grounds of the other party's breach of contract.
The court held that the parties had not agreed on the liability for breach of contract arising from the orientation of the entrance door, but the opening of the entrance door would inevitably have an impact on the use of the space inside the door, and the defendant should bear the loss of breach of contract. The external or internal opening of the entrance door will have an impact on the use and passage of the household and the interior and exterior of the door. Compared with the external opening of the entrance door, the internal opening of the entrance door has a greater impact on the area of the house involved in the rotation of the door. The area of the house itself does not change due to the orientation of the entrance door, which mainly weakens the actual use function of the door rotation area. The width of the entrance door involved in this case is 87CM. According to the width of the door, the circular area of the 1/4 involved in the rotation is about 0.6 square meters (3.14*0.87*0.87/4). According to the house price 4928 yuan/square meter agreed in the purchase contract, the affected area is 2956.80 yuan. The hospital considers that there is no difference between the limited use function and the house area at all, and determines that the plaintiff's loss is 60% of 2956.80 yuan, that is 1774.08 yuan.
Case 2: Dispute over Commercial Housing Sales Contract between a Real Estate Development Co., Ltd. and Zheng Moumin-(2014) E Yichang Zhongmin Er Zhong Zi No. 00301
Zheng signed a commercial housing sales contract with a real estate development co., ltd. the household plan in the annex to the contract clearly indicated that the entrance door was opened externally, while the actual entrance door provided by a real estate development co., ltd. was opened internally. Zheng used this as an excuse to ask the real estate development co., ltd. to compensate for its losses.
The court held that the developer changed the opening of the entrance door from outside to inside to affect the buyer's household entrance door usage habits, and the change of the entrance door from outside to inside affected the buyer's use of the space in the house, so the developer should compensate Zheng for the losses caused by the opening of the door inside. The court calculated the loss according to 50% of the area value affected by the opening of the entrance door, I .e. the affected area is 3.14 × 1 m ÷ 4=0.79 square meters, and the loss caused is 4840 yuan × 0.79 × 50%= 1911.80 yuan.
Case 3: Dispute over Commercial Housing Sales Contract between Hu Mou and a Real Estate Co., Ltd.-Jinan City Central District People's Court (2021) Lu 0103 Minchu No. 285
Hu mou signed a commercial housing sales contract with a real estate co., ltd. when the plaintiff bought the house, the entrance door was opened outside. after the contract was signed, a real estate company delivered the house. Hu mou brought potential safety hazards to himself by changing the outside opening of the entrance door to the inside opening with the real estate company, occupying the building area inside the house, and sued to the court for compensation for his economic losses.
In this case, according to the evidence provided by the original defendant, the court held that the defendant's real estate company did not have the situation of breach of contract delivery. However, although there are no mandatory provisions on the orientation of the entrance door in laws and regulations, there are both external and internal opening situations in real life, but the orientation of the entrance door is inconsistent when the house is handed over in the same residential area, the same building and the same floor, which has a certain impact on the owner's life and mentality, according to the principle of fairness and reasonableness, the defendant is determined to compensate the plaintiff 6000 yuan.
3. the views of our lawyers
In practice, in the "commercial housing sales contract" often does not agree on the developer's liability for breach of contract in the case of inconsistent entry door orientation, and there is no mandatory provision on the opening and closing orientation of the entry door in the law. The determination of the developer's compensation for economic losses claimed by the owner has become an important issue. Our lawyer believes that the opening of the entrance door does not detract from the actual area of the house, but only leads to the weakening of the use function of the local area near the entrance door. In practice, there are also cases of opening the entrance door. Therefore, the weakening of the use function of the entrance door area has a very limited impact on the use of property buyers, based on the value of the area used to affect the entrance door area (the width of the door to calculate the product of the area of the 1/4 involved in the rotation and the unit price of the house involved in the contract), the loss can be calculated according to the degree of limitation of the use function, which can reasonably make up for the loss caused to the buyer by the opening of the entrance door.
4. lawyer reminds
(I) developers should strictly review the commercial housing sales contract and the attached sub-household floor plan to make it consistent with the planning, design and construction.
The (II) stipulates in the contract that "the information, drawings and data involved shall be subject to the approval documents of the competent government departments and the actual situation of the delivery of the house", so as to avoid the legal risks that may occur when the audit is not strict.
If the (III) involves planning changes approved by the planning department and design changes approved by the design unit that affect the quality and use of the house, the developer shall promptly fulfill the obligation to notify the buyer and retain relevant evidence.
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