Zhongcheng Qingtai Real Estate Perspective: How to determine the validity of the agreement signed between the buyer and the developer for the purchase of the house called "loan" is actually "down payment installment"
Published:
2020-09-13
Case Introduction:
On January 17, 2016, Zhang and L Real Estate Company signed the "Loan Agreement" and other documents, agreeing that Zhang would subscribe for a set of commercial housing developed and constructed by L Real Estate Company. Due to capital turnover difficulties, Zhang borrowed RMB 120000 from L Real Estate Company. According to the "Loan Agreement", Zhang must repay the loan of 40000 yuan before April 17, 2016, 40000 yuan before July 17, 2016, and 40000 yuan before October 17, 2016. Otherwise, for each day overdue, the plaintiff shall be paid liquidated damages in 1‰ of the total amount of the unpaid amount. Because Zhang failed to repay the loan on time within the above repayment period, L Real Estate Company sued Zhang to repay the loan.
Referee's view:
The court held that the loan agreement signed by Zhang and L real estate company was the true intention of both parties, and did not violate the mandatory provisions of laws and regulations, and was legal and effective. Both parties shall fully perform their contractual obligations. Zhang to L real estate company to borrow money, L real estate company in accordance with the loan agreement to pay the loan, Zhang should be in accordance with the agreement to repay the loan in a timely manner. L Real Estate Company's claim for Zhang to repay the loan of 120000 yuan was supported by our hospital. Zhang's failure to repay the loan on time constitutes a default and shall pay the corresponding default payment. As the calculation ratio of liquidated damages stipulated in the loan agreement is 1‰ per day, the agreement is too high. According to the first paragraph of Article 29 of the provisions of the Supreme People's Court on Several Issues concerning the application of law in the trial of private lending cases, the court has decided to adjust it to 24% of the annual interest rate.
Case extension:
In practice, the developer and the buyer signed a "loan agreement", which stated that the buyer purchased a set of commercial housing developed and constructed by the developer. Due to the difficulty of capital turnover, the developer applied for a loan, and made an agreement on the repayment period and liability for breach of contract. In the above case, the trial court held that the Loan Agreement was valid and ordered Zhang to repay the loan of L Real Estate Company. However, through case search, our lawyers found that the opinions of different courts on this issue are not consistent. Some of the cases are listed as follows:
1, called "loan contract", actually for the sale of housing and the down payment installment behavior, "loan contract" is not the true intention of both parties, so the "loan contract" should be invalid.
See the case of a dispute over a house sales contract between a company and Bai [(2019) Yu 0105 Min Chu No. 8215]]. The court held that the civil juristic act performed by the perpetrator and the counterpart with a false intention was invalid. In this case, although the original and the defendant signed the Loan Contract, the Loan Contract stipulates that the defendant borrows money from the plaintiff in order to buy the house developed by the plaintiff, and the borrowed money is directly paid to the plaintiff. The defendant does not withdraw cash, and the plaintiff collects installment handling fees from the defendant. It can be seen that the contract is called the Loan Contract, which is essentially the down payment installment behavior of the original and the defendant in order to buy and sell the house, the Loan Contract is not the true intention of the original or defendant, so the Loan Contract shall be null and void.
2. The "Loan Contract" is called borrowing, but its essence is that both parties are in order to circumvent the relevant down payment policies of the state on the purchase of commercial housing, and there is no actual delivery of funds in the loan contract. In fact, the developer allows the buyer to make down payment in installments and issue invoices in advance for the convenience of the buyer's loan. The amount in the loan contract is essentially the purchase price.
See the case of dispute over a house sales contract between a real estate co., ltd. in Zhengzhou and yang [(2019) Yu 0105 min Chu no 22660]]. The court held that the "Commercial Housing Sales Contract" signed by the plaintiff and the defendant is the true intention of both parties, and the content does not violate the mandatory provisions of laws and administrative regulations. The contract is legal and valid, and both parties should fully perform their obligations in accordance with the contract. Although the "Loan Contract" signed by both parties is called loan, its essence is that both parties are in order to circumvent the relevant down payment policy of the state on the purchase of commercial housing, and there is no actual delivery of funds in the loan contract. In fact, the plaintiff allows the defendant to make down payment in installments and issue invoices in advance for the loan convenience of the defendant. The money in the loan contract is still the purchase money in essence. The defendant did not pay on time in accordance with the loan contract, in fact, did not pay the full amount of the down payment of the house as agreed.
3, the developer wants to borrow from the buyer through a third party so that it can pay the down payment, but the third party did not actually borrow to the buyer of the house, the real purpose of the developer is to issue a false down payment certificate disguised as a set of loans.
See the appeal case of dispute over commercial housing presale contract between ding mou and a development co., ltd. in Chongqing [(2019) Yu 02 min zong no 2911]]. The court held that, combined with the fact that Ding signed the "Commercial Housing Sales Contract" with the appellee, that is, on April 19, 2018, the fact that the appellee, as a developer, provided guarantee for the loan, The fact that the borrower Yi is a financial staff member of the appellee and the "Loan Agreement" has not been actually performed, therefore, it should be determined that the two parties in the signing of the "commercial housing sales contract" on the down payment of the installment agreement is established. Although the appellee, as a real estate development enterprise, wants to borrow money from the buyer ding mou through a third party (yi mou) so that he can pay the down payment of 160000 yuan, the third party (yi mou) did not actually borrow money from ding mou. the appellee delivered a copy of the receipt of 160000 yuan in the down payment to the appellee ding mou, which is used to prove to the bank that the down payment has been paid. in essence, violation of the relevant provisions of the ''Notice of the Ministry of Housing and Urban-Rural Development, the People's Bank of China, and the China Banking Regulatory Commission on Regulating House Purchase Financing and Strengthening Anti-Money Laundering Work'' should be punished by the relevant management department, but Ding cannot prove his claim based on the copy of the receipt. The fact that the down payment has been paid is established.
Lawyer Reminds:
According to the relevant provisions of the "Notice of the Ministry of Housing and Urban-Rural Development, the People's Bank of China, and the China Banking Regulatory Commission on Regulating House Purchase Financing and Strengthening Anti-Money Laundering Work" (Jianfang [2017] No. 215), real estate development enterprises and real estate intermediaries are strictly prohibited from providing down payment financing for house purchases in violation of regulations. Real estate development enterprises and real estate intermediary agencies shall not advance the down payment for the buyers or adopt other forms of down payment installment and other forms of down payment, shall not provide down payment financing for the buyers through any platform or institution, shall not induce the buyers to make the down payment through financing from other institutions in any form, and shall not organize "crowdfunding" to purchase the house. Article 31 of the Notice of the Supreme People's Court on Printing and Distributing the Minutes of the National Courts Conference on Civil and Commercial Trials (Law [2019] No. 254) stipulates that violation of the regulations does not affect the validity of the contract under normal circumstances, but if the contents of the regulations involve public order and good customs such as financial security, market order and national macro policies, the contract shall be deemed invalid. Our lawyer suggests that developers should avoid signing an agreement on down payment loan with the buyer in the process of selling commercial housing, so as to avoid the legal risk of "down payment loan.
The Department of Urban Construction and Real Estate Legal Affairs has been committed to providing high-quality and efficient legal services for enterprises expanding the real estate market and related investment fields in Shandong Province and even the whole country through litigation, arbitration and non-litigation legal services. Based on its outstanding achievements in construction engineering and real estate legal services, in 2015, 2017 and 2019, the Institute was rated as "the top 10 professional law firms worth recommend in China's engineering law" by ENR/Shanghai Construction Times for three consecutive years ".
Whether it is industrial, commercial or residential property, we firmly believe that architecture has a soul, and we do our best to provide customers with temperature legal services to help them obtain operational compliance solutions in a complex, changing and localized business and regulatory environment to meet their business needs.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
