Zhongcheng Qingtai, real estate perspective: developers in the commercial housing presale did not inform buyers of the legal risk analysis of the laying of public pipes in the house.
Published:
2020-12-11
1. brief
In June 2016, Hu signed a "commercial housing sales contract" with company a. In April 2018, Company A delivered the house to Hu. When Hu received the house, he found that the public fire supervisor passed through the house he purchased, which affected the use of the house and occupied the space in the house. After unsuccessful negotiation with Company A, Hu sued the court for compensation for the loss of house value caused by the occupation of the area and space in the house by the fire main pipeline.
2. focus of controversy
Whether Company A should be liable for breach of contract for laying public pipes in the house involved and failing to inform Hu
3. court decision
When Company A signed the "Commercial Housing Sales Contract" with Hu, it did not truthfully inform that there were public fire-fighting pipeline facilities in the house involved, and the contract did not clearly stipulate this unfavorable factor. Company A claims that this unfavorable factor has been reflected in the price discount when selling the house, and there is no evidence to prove that the court will not accept it. The delivery of the house by Company A did not conform to the contract, so the first instance found that Company A constituted a breach of contract and there was no improper, Company A's appeal claim that there was no breach of contract could not be established, and the Court did not support it.
4. jurisprudence
In judicial practice, there are different views on the legal liability of the developer for not informing the buyer of the public pipeline in the presale contract.
Viewpoint 1: The developer has the obligation to make the electricity, pipeline gas, fire protection and other facilities of the building where the commercial house is delivered meet the design requirements. When the developer presale the commercial housing, he did not inform the buyer that the laying of public pipelines in the house does not constitute a breach of contract, nor is there any fraud, and there is no liability for compensation.
Representative Case:(2017) Min 07 Min Zhong No. 1111 Civil Judgment
The Court believes that: as to whether Guoxi Real Estate Company committed a breach of contract by laying weak current and fire-fighting pipelines in the storefront involved, the Commercial Housing presale Contract does not specify whether weak current and fire-fighting pipelines will be laid in the storefront. However, according to Article 8 of the "Commercial Housing presale Contract", Guoxi Real Estate Company has the obligation to make the electricity, pipeline gas, fire protection and other facilities of the building where the commercial housing is located meet the design requirements, otherwise it shall bear the corresponding liability for breach of contract. The design drawings and construction drawings of Building 2 in Arc de Triomphe show that Guoxi Real Estate Company is laying weak current and fire fighting pipelines in the store in strict accordance with the requirements of the design drawings. Therefore, the original judgment found that Guoxi Real Estate Company laid the pipeline in accordance with the contract and the relevant national mandatory standards, which did not constitute a violation of the contract and was not improper.
On whether Guoxi Real Estate Company should bear the obligation of compensation because it did not inform the fact of the laying of the pipeline at the time of the contract. The appellant failed to prove that Guoxi Real Estate Company had malicious deception at the time of the contract, nor could it prove that Guoxi Real Estate Company's fraudulent behavior made it fall into the wrong perception of the content of the contract. In addition, the "Commercial Housing presale Contract" clearly stipulates that the purchase and sale price of the house shall be calculated according to the area, and the appellant claims the existence of loss due to the reduction of the volume of the commercial house caused by the laying of the pipeline, which is unfounded in law. Therefore, when the appellant signed the contract, Guoxi Real Estate Company did not inform the commercial housing involved that the pipeline would be laid in the commercial housing to claim compensation for the loss, and the court did not support it.
The 2. developer did not inform the buyer of the public pipeline in the presale of commercial housing, violated the principle of good faith, and the laying of public facilities led to the contract area does not match, should bear the liability for breach of contract.
One of the representative cases:(2018) Wan 01 Min Zhong No. 6841 Civil Judgment
The Court believes that: First of all, as a real estate development unit, Jingshang Company should be honest and trustworthy when presale commercial housing, and truthfully disclose the presale housing conditions to the buyers. The house purchased by Hu Weiguo runs through the public fire-fighting pipeline facilities, which has a significant adverse impact on the use value of the house. When Hu Weiguo signed the "Commercial Housing Sales Contract", the house had not yet been completed, and Jingshang Company did not truthfully inform Hu Weiguo of the disadvantages in any reasonable and necessary way, which violated the civil law principle of good faith. Secondly, Beijing Merchants Company shall compensate Hu Weiguo for the area loss caused by fire-fighting pipelines if it lays public facilities in the commercial housing sold to Hu Weiguo and occupies the interior area of the house purchased by Hu Weiguo.
Representative Case 2:(2015) Liu Min I Zhong Zi No. 00741 Civil Judgment
The Court believes that: according to the commercial housing sales contract, the use of commercial housing for shops, is a steel frame structure, the height of 4.5 meters. However, the appellant laid public drainage pipes, transmission lines and other bridge equipment in the commercial house purchased by the appellee, which affected the floor height and use space of the house, which was obviously inconsistent with the contract. Therefore, in the case that the appellant did not inform the appellee, the public drainage pipes, transmission lines and other bridge equipment were laid in the house sold to the appellee, which affected the floor height and available space of the commercial house sold. Compared with other similar commercial houses sold by the appellant, the use value of the house was reduced, and the commercial house delivered did not conform to the contract.
5. counsel advises:
After data retrieval and review, our lawyers found that in judicial practice, the developer did not inform the buyer in the housing presale to build public pipes in the house is more inclined to determine the breach of contract. Even if it is agreed in the Commodity House presale Contract that "when the seller has to bury (frame) electricity, telecommunications, drainage pipelines and other related devices on the ground, underground and above ground around the buyer's building due to the needs of public interests such as urban construction and property management, the buyer should provide assistance and actively cooperate in future maintenance and repair, there is still no way to exempt the developer from liability. And the laying of public facilities directly affects the housing area, which is a situation that seriously affects the purpose of contract performance. If the buyer claims liability for breach of contract on this grounds, the developer has the risk of compensating for the loss or even terminating the contract.
Our lawyer believes that developers should pay more attention to the laying of public pipelines in presale houses. If the commercial houses presale by developers are paved with public fire-fighting pipelines and other facilities, they should clearly inform the buyers in the commercial housing presale, and make a clear agreement on whether the public pipeline equipment affects the housing area, so as to avoid corresponding disputes.
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