Zhongcheng Qingtai, real estate perspective: developers apply the new version of the "commercial housing sales contract", late delivery of the legal risks and preventive measures.

In order to safeguard the legitimate rights and interests of buyers and sellers of commercial housing, improve the fairness and transparency of commercial housing transactions, reduce disputes over commercial housing sales contracts, and promote the healthy and orderly development of the real estate market, on November 3, Jinan Housing and Urban-Rural Construction Bureau and the Municipal Market Supervision Administration jointly issued the "Notice on Further Regulating the Online Signing of Commercial Housing Sales Contracts" (hereinafter referred to as the "Notice"), it is clear that the new version of the "Commercial Housing Sales Contract" (hereinafter referred to as the "new version of the contract") will be launched from December 2020. The "Notice" clearly stipulates: "When the parties to the transaction agree on the relevant content, the rights and obligations of both parties to the transaction shall be clearly agreed on, and the content agreed on by themselves shall not violate the original intention of this article or the corresponding clauses in the model text, it shall not exempt the seller from liability, increase the buyer's liability, or exclude the buyer's legitimate rights and interests." To a large extent, the above provisions have increased the relevant responsibilities of developers. As far as developers are concerned, how should they prevent relevant legal risks? In this context, this paper analyzes the legal risks and preventive measures of overdue delivery.

The delivery of commercial housing is an important part of the process of commercial housing sales, and there are a large number of legal disputes arising from overdue delivery in this link. Generally speaking, there are two main situations in which developers bear the liability for breach of contract for overdue delivery. One is that the delivered commercial housing does not meet the delivery standards agreed in the contract; the other is that it is not delivered within the agreed time. In conjunction with the new version of the contract, the specific analysis is as follows:

The commercial housing delivered 1. fails to meet the agreed delivery standard

Article 8 of the old version of the Contract for the Sale and Purchase of Commercial Housing (hereinafter referred to as the "old version of the Contract") stipulates: "… the commercial housing that meets the following conditions and meets the requirements of this Contract will be delivered to the buyer for use: 1. The commercial housing has obtained the Comprehensive Acceptance Record Certificate of the development project; 2. The commercial housing has obtained the Comprehensive Acceptance Record Certificate of the development project by stages."

Article 9 of the new version of the contract: "the delivery of the commercial house shall meet the following conditions listed in items 1, 2 and__: 1. the commercial house has obtained the filing certificate of comprehensive acceptance of the completion of the real estate development project or the filing certificate of comprehensive acceptance by stages; 2. The commercial house has obtained the housing surveying and mapping report; 3.__________________________....."

Article 10 of the new version of the contract stipulates the delivery conditions of commercial housing infrastructure equipment (water supply, drainage; power supply; heating; gas; telephone communication; cable television; broadband network) and public services and other supporting facilities (subject to the construction project planning permission). If the delivery conditions are not met within the agreed period, the developer may be liable for breach of contract for overdue delivery.

Through the comparison of the old and new regulations, it is not difficult to find that the new version of the contract stipulates higher and stricter delivery standards. Compared with the old version of the contract, when the new version of the contract is applied, if the commercial housing delivered by the developer fails to obtain the housing surveying and mapping report, infrastructure equipment, public services and other supporting facilities fail to meet the delivery standards, it may be regarded as not meeting the delivery standards, and the buyer refuses to accept it, the developer bears the legal risk of late delivery.

Preventive measures: in combination with the provisions and spirit of the Notice, it is basically impossible to avoid risks through the delivery conditions of the commercial housing itself in the way agreed in the Supplementary Agreement. However, for infrastructure equipment, public services and other supporting facilities, some contents belong to the situation that "there are spaces or blank lines in the main contract terms and attachments of the model text, and both parties need to agree on relevant contents by themselves, the developer can agree with the buyer on the delivery conditions and the legal consequences when the delivery conditions are not met, and through self-agreement, as far as possible to reduce the factors that may cause the legal risk of late delivery.

2. not delivered within the agreed time

(I) delivery time

Article 8 of the old version of the contract stipulates: "The seller shall be in front, ...... delivered to the buyer for use......"

Article 11 of the new version of the contract stipulates: "The seller of the (I) shall deliver the commercial house to the buyer before the date of the year. ......

Regarding the provisions of the delivery time, the new version of the contract has not been changed and restricted, and the developer shall determine it according to the construction situation of the project.

(II) Delivery Methods

Article 11 of the old version of the contract stipulates: "After the commercial house meets the conditions for delivery and use, the seller shall notify the buyer in writing to handle the delivery procedures. When both parties carry out acceptance and handover, the seller shall produce the certification documents stipulated in Article 8 of this contract and sign the house handover form."

The new version of the contract stipulates: "After (II) the commercial house to meet the delivery conditions agreed in Articles 9 and 10, the seller shall deliver the notice of the time of inspection of the house, the time and place of handling the delivery formalities and the documents and materials to be carried in writing (postal express, registered mail, SMS, e-mail, etc.) to the buyer in accordance with the mailing address and contact information agreed in this contract ____ days (not less than 10 days) before the expiration of the delivery date. If the buyer fails to receive the delivery notice, the date of expiration of the delivery date agreed in this contract shall be the time for handling the delivery procedures, and the place where the commercial house is located shall be the place for handling the delivery procedures."

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Compared with the old version of the contract, the new version of the contract on the delivery of the provisions of the larger changes, more stringent norms of the seller's delivery of housing behavior. First of all, it stipulates the seller's obligation to notify in advance after the commercial housing meets the delivery standard and before the delivery date expires, and the date of advance notice shall not be less than 10 days. This regulation means that the developer shall obtain the comprehensive acceptance filing certificate or the comprehensive acceptance filing certificate and the housing surveying and mapping report at least 10 days before the delivery date expires, otherwise it will bear the legal risk of overdue delivery. Secondly, the content of the notice is refined, not only limited to the time and place of handling the delivery procedures, but also includes the time of inspecting the house and the documents that should be carried. Thirdly, the way of notification is limited. It is necessary to notify by postal express, registered mail, SMS, e-mail, etc. in accordance with the communication address and contact information agreed in this contract. That is, if the address of notification or notification delivered by SF Express is not the communication address agreed in this contract, the effectiveness of notification is open to question. Finally, the old version of the contract stipulates that it is sufficient to perform the notification obligation before the expiration of the delivery period, while the new version of the contract stipulates that the notification must be delivered to the buyer at least 10 days before the expiration of the delivery period.

Precautions: First, it is recommended that the period of performance of the above-mentioned notification obligation be taken into account when determining the delivery period. Secondly, it is suggested that developers draft a notice template in advance according to the provisions of the new version of the contract, and ask legal or professional personnel to review it to avoid missing the contents of the notice. Thirdly, when signing a sales contract with the buyer, it is clearly informed to provide a valid correspondence address and contact information, and it is agreed in the blank line of the new version of the contract, and the developer shall be deemed to have fulfilled the notification obligation when the notice is delivered to the correspondence address agreed in the contract. If the buyer fails to inspect the house and go through the delivery procedures within the time limit specified in the delivery notice due to its own reasons, the house shall be deemed to have been delivered on the date of expiration of the time limit, and the buyer shall not have the right to require the seller to bear the liability for breach of contract for overdue delivery. Finally, it is recommended that developers must retain the relevant documents of delivery.

When does the 3. count as fulfilling its delivery obligations?

The contract law stipulates that if the quality of the subject matter does not meet the quality requirements, so that the purpose of the contract cannot be achieved, the buyer may refuse to accept the subject matter. According to the relevant judicial interpretation and the judgment rules of the old version of the contract, the buyer can refuse to accept the commercial house when it is found that it cannot meet the basic purpose of the contract, which is regarded as the seller's failure to deliver and bears the responsibility for breach of contract of overdue delivery. Generally, the "reasonable reasons" for the buyer to refuse to accept the house are "the quality of the main structure of the house is unqualified" and "the quality problem of the house seriously affects the normal residential use, for ordinary quality problems, the seller should solve them through the defect guarantee liability system (such as performing maintenance obligations). The seller's obligation to repair and repair does not affect the performance of its delivery obligations, that is, if the seller fulfills the delivery obligations of the commercial housing that meets the conditions agreed in the contract according to the agreed delivery method before the delivery period expires, even if it undertakes the obligation of repair and repair later, it still does not need to bear the responsibility for overdue delivery.

Item (III) of Article 11 of the new version of the contract stipulates: "1. Before handling the delivery procedures, the buyer has the right to inspect the commercial house, and the seller shall not pay relevant taxes or sign a property service contract as the buyer's inspection and handling The prerequisite for the delivery procedures. 2. If the commercial house inspected by the buyer has the following other quality problems except the foundation and main structure, the seller shall be responsible for repairing it within ___ days from the next day of inspection in accordance with the relevant engineering and product quality specifications and standards, and shall bear the repair costs, and then deliver it after repair. (1) leakage or cracking of roof, wall surface and ground, etc.;(2) pipeline blockage;(3) doors and windows are warped and cracked, and hardware is damaged;(4) lamps, electrical appliances and other electrical equipment cannot be used normally;(5) _________________;(6)_______________________."

The provisions of the new version of the contract are different from the previous judicial interpretation and judgment rules. In the case of ordinary quality problems of commercial housing, the developer also has the legal risk of bearing the liability for breach of contract in overdue delivery.

Precautions: It is recommended that developers take the above repair period into account when agreeing on the delivery period of commercial housing.

4. disclaimer

Article 8 of the old version of the contract stipulates: "However, in case of the following special reasons, the seller may extend the contract according to the facts, except for the termination or modification of the contract agreed by both parties through consultation: 1. Force majeure is encountered and the seller informs the buyer within days of the occurrence; 2."

The new version of the contract does not separately specify the circumstances in which the seller may defer delivery.

Precautions: If the developer claims an exemption from the facts of late delivery, the burden of proof is on the exemption. In judicial practice, the reasons for developers to claim exemption mainly focus on the two situations of overdue delivery due to force majeure and overdue delivery due to a third party. The new version of the contract does not provide for it, and it is recommended that the developer and the buyer make an agreement in the blank line of Article 11.

5. epilogue

The purpose of applying the new version of the contract is to improve the fairness and transparency of commercial housing transactions and reduce disputes over commercial housing sales contracts, but whether it is the old version of the contract or the new version of the contract, it is not a mandatory provision of laws and administrative regulations. In the case of the spirit, the seller and the buyer can make their own agreements on relevant matters and, within the scope of their own agreement, protect their legitimate rights and interests as much as possible.