Real estate perspective: can the loss of housing premium be supported after the termination of the subscription agreement?
Published:
2021-02-23
In practice, when the buyer and seller of commercial housing sign a subscription agreement, one party refuses to sign a commercial housing sales contract or other breach of contract usually leads to the consequences of paying liquidated damages to the other party or applying deposit penalty. However, in the case of rising housing prices, if the seller breaches the contract, the buyer usually claims the loss of housing premium at the same time. In practice, it is generally believed that the loss of housing premium belongs to the loss of expected interest, and belongs to the "commercial housing sales contract" of the expected interests of the contract, in the two sides signed a subscription agreement, that is, only the establishment of an appointment contract, whether the loss of housing premium will be supported, the court judgment of different views.
view of judicial adjudication
(I) Point 1: Since there is no commercial housing sales contract between the two parties in this case, based on the fact that the benefits available after the effective performance of the contract are not within the scope of the losses that should be claimed under the liability for negligence in this case, the plaintiff requires the defendant to compensate for the loss of the available benefits of 309901.08 yuan, which the court does not support.
Case: yang mou, Wang mou and a real estate co., ltd. commercial housing presale contract dispute first instance civil judgment
[(2016) Wan 1502 Min Chu No. 5056]]
Excerpts from the referee's point of view: (3) Other acts contrary to the principle of good faith. According to the provisions of the contract law on the liability for contractual negligence, if a party causes the loss of trust interest to the other party due to the negligence of the contract, it shall be liable for damages, but the compensation for the loss of trust interest should be based on reasonable trust. The purpose is to restore the interests of the parties to the state before the act of contracting has not been trusted, which is different from the loss of interest in the performance of the contract. As for the loss of available benefits claimed by the plaintiff, the legal basis for the loss is based on the provisions of Article 113 of the Contract Law. Since no commercial housing sales contract has been signed between the two parties in this case, and the available benefits after the effective performance of the contract are not within the scope of losses to be claimed under the liability for contracting negligence in this case, the plaintiff requires the defendant to compensate the loss of available benefits of 309901.08 yuan, which is not supported by the court.
(II) Point 2: According to Article 28 of the Interpretation of the Supreme People's Court on the Application of Legal Issues in the Trial of Disputes over Sales Contracts, "The deposit agreed in the sales contract is not sufficient to make up for the losses caused by one party's breach of contract, and the other party requests compensation for the loss exceeding the deposit., The people's court may impose the same, but the sum of the deposit and the loss compensation shall not be higher than the loss caused by the breach." the provisions of the discretionary compensation.
Case: a real estate development co., ltd. and Wu mou commercial housing reservation contract dispute case civil second instance judgment
[(2020) Yue 20 Min Zhong No. 5586]]
Excerpt from the judgment point of view: at the same time, according to Article 28 of the interpretation of the Supreme people's Court on the application of legal issues in the trial of disputes over sales contracts, "if the deposit agreed in the sales contract is not sufficient to make up for the losses caused by one party's breach of contract, if the other party requests compensation for losses exceeding the part of the deposit, the people's court may concurrently, but the sum of the deposit and loss compensation shall not be higher than the loss caused by the loss." According to the regulations, Changjiang Zhaoye Company failed to perform the contract as promised, causing Wu Ganghui a loss of expected benefits. The first-instance judgment decided that Changjiang Zhaoye Company should compensate Wu Ganghui for 20% of the premium loss of the house involved and ordered the evaluation fee to be borne by Changjiang Zhaoye Company. There was nothing wrong with it and the court maintained it.
(III) Point 3: The plaintiff's claim that the premium loss of the house conforms to the above-mentioned legal provisions and should be supported.
Case: Nie mou and a real estate co., ltd. housing sales contract dispute first instance civil judgment
[(2020) Yu 0103 Min Chu No. 9948]]
Excerpts from the referee's point of view: If one of the parties fails to perform the contractual obligations or the performance of the contractual obligations does not conform to the agreement, causing losses to the other party, the amount of compensation for the losses shall be equivalent to the losses caused by the breach of contract, including the benefits that can be obtained after the performance of the contract, but shall not exceed the losses that may be caused by the breach of contract. This case is the defendant did not perform the contractual obligations led to the termination of the contract, the house involved has been purchased for more than ten years, the plaintiff claimed that the premium loss of the house in line with the above-mentioned legal provisions, should be supported. The plaintiff claimed to calculate according to the current average price of residential second-hand housing transactions in Zhengzhou. Although the defendant did not approve it, he did not submit valid evidence. Therefore, the court calculated the premium loss according to the average price of residential second-hand housing transactions in the month when the plaintiff sued. The original price of the house involved is 3300 yuan per square meter, and the average transaction price of the second-hand housing market is 11230 yuan per square meter, so the house premium loss is:(11230 yuan -3300 yuan) × 139=1102270 yuan.
Counsel's opinion
Our lawyers tend to the first view that the subscription agreement is not a commercial housing sales contract. The performance of the subscription agreement only has the effect of signing a commercial housing sales contract. The signing of the subscription agreement itself does not have any transaction and does not form any economic benefits. The failure to sign the commercial housing sales contract only loses an opportunity to conclude a contract. After signing the contract, the transaction will occur and the economic benefits after performance will be generated, including the available benefits, and the loss of housing price increases is a loss of available benefits, which will not occur until the contract is signed. Therefore, there is no loss of available benefits in the appointment contract, and only this contract will have available benefits.
In addition, according to Article 5 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, if the subscription agreement constitutes a commercial housing sales contract, there is a risk that the court will support compensation for the loss of housing premium.
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