Zhongcheng Qingtai Real Estate Perspective: How to determine the starting and ending time of the developer's late delivery of the house and calculate its liquidated damages
Published:
2020-09-14
Brief of the case
A real estate company and ye mou signed a "commercial housing sales contract" and a "supplementary agreement" on March 26, 2018, agreeing that ye mou would purchase a set of commercial housing developed by a real estate company. The contract stipulates that real estate company a shall, in accordance with the relevant provisions of the state and local people's governments, obtain the "phased comprehensive acceptance record certificate" of the development project according to law before April 20, 2018 (in the supplementary agreement, it shall obtain the completion acceptance record form of the building where the house is located), and meet the conditions for the delivery of commercial housing, Otherwise, it shall pay liquidated damages to ye according to 1/10000 of the paid house purchase price every day.
A real estate company only obtained the "housing construction project completion acceptance record form" of the house involved in the case on August 2, 2018, and issued the "house delivery notice" to ye on August 3, 2018. ye actually received the house involved in the case on August 7, 2018, and ye sued the developer for payment of liquidated damages for overdue delivery.
court decision
The court held that according to the main contract and the supplementary agreement, the starting date for the delivery of the house involved in the case was April 20, 2018. A real estate company issued a "notice of delivery" to Ye on August 3, 2018, informing Ye to go through the delivery formalities on August 4, 2018. Ye actually received the house on August 7, 2018, so it should be confirmed that A real estate company fulfilled the delivery obligation of the house involved on August 4, 2018. According to the supplementary agreement, from April 21, 2018 to the actual delivery date, A Real Estate Company shall pay Ye a liquidated damages of one ten thousandth of the paid house price on a daily basis.
legal analysis
Standard for delivery of commercial housing by 1. developers
According to Article 27 of the "the People's Republic of China City Real Estate Management Law", the design and construction of real estate development projects must comply with relevant national standards and specifications. Real estate development projects are completed and can only be delivered for use after acceptance. The decision of the State Council on the third batch of cancellation and adjustment of administrative examination and approval projects cancels the administrative examination and approval for the comprehensive acceptance of the completion of real estate development projects in residential areas and other groups, that is, it is no longer a compulsory administrative provision before the comprehensive acceptance can be delivered for use. According to the current legal provisions and combined with the specific norms in practice, the legal minimum standard for developers to hand in houses should be to obtain the completion acceptance record. In this case, the developer through the "Supplementary Agreement" agreed to change the delivery standard to the developer to obtain the "Housing Construction Project Completion Acceptance Record Form" of the building where the house involved meets the delivery standard prescribed by law.
2. whether the clause in the Supplementary Agreement that changes the delivery conditions of the house is a standard clause.
First of all, according to the provisions of Article 77, paragraph 1, of the the People's Republic of China Contract Law, the parties can change the contract by consensus. In this case, A Real Estate Company and Ye signed a Supplementary Agreement, which is a supplementary agreement between the two parties on the content of the main contract on the basis of the main contract, in accordance with the law.
Secondly, the "Supplementary Agreement" changed the developer's delivery conditions to the "Housing Construction Project Completion Acceptance Record Form" obtained by the developer for the building where the house is located. This agreement does not exempt the developer from the statutory responsibility, nor does it increase the buyer. The burden of the person, and this clause is blackened in the "Supplementary Agreement. Therefore, the terms of the Supplemental Agreement that change the conditions of delivery of the premises shall not be recognized as standard terms.
Case extension
The owner receives the house in advance, how to bear the liability for breach of contract.
Our lawyer believes that if the buyer receives the house in advance when the house does not have the delivery conditions, it should be regarded as that the buyer has given up the agreed delivery conditions, which is essentially a change to the delivery conditions agreed in the original purchase contract, and it has no right to claim liability for breach of contract against the developer after the actual receipt of the house. See the civil judgment of the second instance of a dispute over a presale contract between a real estate development co., ltd. in Jinan and a commercial housing [case no:(2015) Ji min yi zhong zi no 1319]]. The court held that in this case, in view of the fact that Ban received the house on October 10, 2013 before meeting the agreed delivery conditions, although the house involved in the case has not yet obtained the comprehensive acceptance record certificate at this time, it has already obtained the quality completion acceptance record certificate and has the legal conditions for the residential use of the commercial house. Knowing that the house involved in the case has not met the agreed delivery conditions, Ban voluntarily chose to receive the house involved at this time, it is regarded as that he changed the delivery conditions agreed in the house purchase contract by this behavior. Therefore, Ban Mou claimed that the liquidated damages for overdue delivery after the actual receipt of the house had no factual basis and the court did not support it.
Similar cases
1. Civil Judgment of Second Instance on Disputes over Housing Sales Contracts of Ma and Jiangsu Co., Ltd. [(2019) Su 07 Min Zhong No. 2009]]
The court held that: Ma actually received the house and renovated it on March 18, 2018. It should be deemed that Ma gave up the house delivery conditions agreed in the original contract, and both parties have made substantial changes to the house delivery conditions. Ma actually received the house. The date is the date of delivery of the house, and Ma once again claimed the liquidated damages for overdue delivery after the house was received, and the court did not support it.
2. Civil Judgment of First Instance on Dispute over Commercial Housing Sales Contract between Liu and Tianjin Real Estate Co., Ltd. [(2016) Jin 0116 Min Chu No. 80847]]
The court held that the plaintiff went through the house handover formalities and checked and accepted the house on September 14, 2015. From the perspective of civil acts, the plaintiff actually received the house knowing that the house had not yet gone through the delivery permit for residential commercial housing under the condition that the contract had clearly stipulated that the house could not be delivered before the delivery permit was available and the defendant informed the plaintiff in writing that the defendant could not obtain the delivery permit for residential commercial housing. Therefore, the plaintiff's actual performance of receiving the house on September 14 shall be deemed as the plaintiff's right to claim liquidated damages for the above-mentioned overdue delivery.
3. The appellant Yizhang Yuxi River Comprehensive Investment and Development Co., Ltd. and the appellee Huang Mou Commercial Housing Sales Contract Dispute Second Instance Civil Judgment [(2019) Xiang 10 Min Zhong No. 4345]]
The court held that according to articles 10 and 11 of the contract signed by both parties, the house delivered for use must pass the acceptance and meet the decoration and equipment standards agreed in annex 3 of the contract. when both parties accept and hand over the house, the seller must also provide the "residential quality guarantee" and the "residential use instruction manual". Huang knew that the house had not passed the acceptance and did not meet the delivery conditions agreed in the contract and still accepted the house involved, it may be determined that Huang waives the terms of delivery of the house as agreed in the contract and is deemed to have changed the terms of delivery of the house by both parties.
Summary
Our lawyers believe that because the "decision of the State Council on the third batch of cancellation and adjustment of administrative examination and approval projects" cancels the administrative examination and approval for the completion of comprehensive acceptance of real estate development projects in residential areas and other groups, it is no longer a compulsory regulation to deliver them for use after comprehensive acceptance. According to the current law, the legal minimum standard for developers to hand in houses should be in line with the provisions of Article 27 of the the People's Republic of China Urban Real Estate Management Law, that is, the real estate development project is completed and can only be delivered for use after passing the acceptance. If the developer fails to meet the legal delivery standard within the delivery time stipulated in the house purchase contract, he shall bear the corresponding liability for breach of contract according to law. If the buyer receives the house in advance, it shall be regarded as a substantial change to the delivery conditions stipulated in the original house purchase contract, and he shall not have the right to claim the liability for breach of contract after the delivery of the house.
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