Zhongcheng Qingtai. Real estate perspective: the seller's information disclosure obligations in the sale of houses involving "haunted houses".
Published:
2020-11-14
The transaction volume of second-hand housing is gradually increasing due to its low price, complete surrounding facilities, visible quality protection, and school district advantages. However, when conducting second-hand housing transactions, there are also some invisible factors that cause buyers to choose houses that they do not want to buy at all. For example, houses are "haunted houses". Chinese people always like to choose auspicious houses. Usually no one will choose "Haunted houses". After accidentally buying a "haunted house", can the buyer cancel the house sales contract? Accurately determining whether the seller has the obligation to disclose information is the key to solving this problem.
"Haunted house" is not a legal concept. It usually refers to a house that has had abnormal deaths or multiple deaths in a short period of time, which makes ordinary people usually unwilling to buy under normal trading conditions. Judging whether it is a "ferocious house" should be based on the general consensus of the society. First of all, for the form of death, man-made abnormal death events need to occur, and the natural birth, old age, sickness and death of people belong to human nature and do not belong to the scope of "haunted house"; secondly, for death from abnormal causes, it generally needs to occur in the house, that is, the exclusive part of the house.
Whether the subject house is a "haunted house" in the usual sense is the basis for considering whether the seller has a duty of disclosure. If the subject house should not be identified as a "haunted house" in the usual sense, for example, the accident occurred in the corridor adjacent to the subject house, then the information will not have a significant and substantial impact on the buyer's decision whether to buy the house. At this time, the seller has no specific obligation to disclose to the buyer. Under the premise that the buyer did not take the initiative to inquire about the relevant situation, there is nothing wrong with the seller not to take the initiative to disclose.
In the case of determining that the subject house is indeed a "haunted house", there are currently two views on the issue of the information disclosure obligation of the "haunted house": the first view is that the seller should take the initiative to disclose; the second view is that the buyer should The buyer has the right to revoke this inquiry first, and only if the seller fails to disclose it after the inquiry.
Cases supporting the first view:
1. Li Dongsheng and Yao Lili's Dispute over Housing Sales Contracts- (2020) Yu 96 Min Zhong No. 789
The court held that according to the evidence, cross-examination and statements of the parties in the first and second instance, it can be concluded that Li Dongsheng did not inform the intermediary company or Yao Lili of the death of his ex-wife in the house involved in the case, and Li Dongsheng did not provide valid evidence to prove that he had informed the intermediary company or Yao Lili of the death of his ex-wife in the house involved in the case. Good customs refer to some habits, practices and common practices that are universally recognized by people in a certain area, do not violate laws and national policies, and are repeatedly applied in life practice. Usually, under the premise of not conflict with the existing law, the court can use good customs to resolve contradictions and disputes. The court respects the good customs of the people. The death of Li Dong's ex-wife in the house involved in the case will affect the transaction price of the house and the public's willingness to buy the house. Therefore, Li Dongsheng should disclose this information when selling the house involved in the case.
2. Xiao mou et al. v. du hai a house sales contract dispute- (2015) pu min yi (min) chu zi no 3599
The court held that in the process of concluding the contract, the parties should follow the principle of good faith in the contract law and should not deliberately conceal important facts related to the conclusion of the contract or provide false information, otherwise it would constitute fraud. According to daily life experience and folk customs, if an abnormal death such as suicide occurs in the house, it will often reduce the value of the house, which will have a substantial impact on the sale price of the house, thus affecting the buyer's contracting basis, which should belong to the information that the seller needs to disclose. The defendant did not disclose the death of the disputed house when it was sold to the plaintiff and sold it to the plaintiff at the normal market price, which violated the principle of good faith.
Regarding the second point of view, the Jiangsu Higher People's Court wrote in Article 36 of the "Answers to Several Questions Concerning the Trial of Real Estate Contract Disputes", "The buyer purchased the house at the market price, and the house had committed suicide, murder and other abnormal events. In the event of death, after the buyer's inquiry, the seller's failure to disclose this constitutes fraud, and the buyer has the right to cancel it". The Jiangsu Provincial High Court believes that the buyer should inquire about this first, and only if the seller fails to disclose it after the inquiry, the buyer has the right to cancel it.
Our lawyers agree with the first view that if the subject house is a "haunted house", the seller has the obligation to voluntarily disclose the information.
First of all, the source of the obligation of information disclosure is the principle of good faith, the principle of good faith as the basic principle of contract law, in the protection of transaction security and fair trade is of great significance, the seller has the appropriate obligation to inform is to abide by the principle of good faith is the inevitable requirement. The information of "haunted house" does not exist in the house itself, cannot be expressed through the physical attributes of the house, and is different from the property right information of the house. The property right information of the house is registered in the real estate trading center and other relevant national departments. When buying a house, the buyer can go to the relevant departments to inquire. Therefore, the buyer who has only seen the house several times has no way or difficulty in knowing the historical information of the house compared with the owner. In the conclusion of the contract, due to the information asymmetry between the buyer and the seller, it will inevitably lead to the unequal negotiating position of the two sides. The principle of good faith requires the parties to disclose information, change the asymmetry of information, and ensure true freedom of contract.
Secondly, the information to be disclosed must be material information about the formation or influence of the meaning of the contract of sale. The information of "haunted house" is an important information that affects the buyer's willingness to buy according to folk customs, and will have a substantial impact on the formation of the buyer's contractual meaning in the process of buying a house.
Therefore, no matter whether the buyer knows in advance or asks voluntarily, according to the principle of good faith, the seller, as the information dominant party, should actively inform the "haunted house" information according to folk customs that will affect the exchange value of goods, fully perform the contractual obligations, and cannot attach the disclosure obligation of the "haunted house" information to the buyer as the weak party in obtaining information. In other words, the buyer does not take the initiative to ask the "haunted house" information obligation, its inquiry or not does not affect the seller's obligation to inform. As long as the seller does not actively inform, it should be considered a violation of the "evil house" information disclosure obligations.
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