Zhongcheng Qingtai Real Estate Perspective: Can the buyer refuse to accept the house because of the quality of the house, and if the buyer refuses to accept the house, does the developer have to bear the responsibility of overdue delivery?

Brief of the case

On November 22, 2014, Zhang signed the "Commercial Housing Sales Contract" and "Supplementary Agreement" with a company, agreeing that Zhang would purchase the X commercial housing developed and constructed by a company. Article 8 of the contract stipulates that the seller shall deliver the commercial housing that has obtained the completion acceptance record of the housing construction project to the buyer for use before June 30, 2016. Article 11 of the contract stipulates that if the buyer fails to deliver on schedule due to reasons of the buyer, the date of expiration of the time limit specified in the seller's "notice of delivery" shall be regarded as the date of delivery of the house and shall be deemed to meet the delivery conditions. Article 16 of the contract stipulates the warranty scope and warranty period for which the seller shall bear the warranty responsibility. Article 3 of the Supplementary Agreement stipulates that if the house delivered by the seller meets the delivery conditions stipulated in Article 8, the buyer shall not refuse to go through the house delivery procedures for other reasons.

On June 25, 2016, a company obtained the housing construction project completion acceptance record form. On June 23, 2016, a company notified Zhang to go through the housing formalities on June 30, 2016. Zhang refused to accept the house on the grounds of unqualified housing quality.

In 2019, Zhang sued the people's court, demanding that a company pay for the repair of the house, and demanded that the economic losses caused by the overdue delivery of the house be compensated according to the rent of the house involved in the same period.

focus of controversy

The court found that the focus of the dispute in this case is: whether a 1. company constitutes overdue delivery; 2. how to deal with the quality problems of the houses involved.

court decision

The court held that because Zhang failed to prove that there were quality problems during the acceptance of the house on June 30, 2016, which seriously affected his normal living and use, it was determined that the developer did not have the situation of overdue delivery of the house and did not need to bear the corresponding losses. It only ruled that a company should pay Zhang a maintenance cost of 24581.05 yuan.

legal analysis

Although the house meets the delivery conditions stipulated in the commercial housing sales contract, there are quality problems in the delivery of the house. Can the buyer refuse to accept the house and require the developer to bear the responsibility of overdue delivery?

In response to this problem, there is currently no very clear provisions. However, according to Article 12 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes" (hereinafter referred to as the "Interpretation of Commercial Housing Sales"): "The quality of the main structure of the house cannot be delivered for use due to the unqualified quality of the main structure of the house After delivery, the quality of the main structure of the house is verified to be unqualified, and the buyer requests to terminate the contract and compensate for losses shall be supported." Article 13: "If the buyer requests the termination of the contract and compensation for losses due to the quality of the house seriously affecting the normal residential use, it shall be supported. If the house delivered for use has quality problems, the seller shall bear the responsibility for repair during the warranty period; if the seller refuses to repair or delays the repair within a reasonable period of time, the buyer may repair it by itself or entrust others to repair it. The cost of repair and other losses incurred during the repair period shall be borne by the seller." The provisions of the analysis are as follows:

1. the main structure of the house is unqualified, the buyer has the right to refuse to accept the house and has the right to require the developer to bear the responsibility for overdue delivery.

According to Article 12 of the Interpretation on the Sale and Purchase of Commercial Housing, if the main structure of the delivered house is unqualified, the buyer has the right to require the developer to terminate the contract and compensate for the loss. The main structure here includes both the main structure of the above-ground house and the foundation of the house. If the quality of the main structure of the house is unqualified, the buyer needs to bear the burden of proof, usually entrusting the project quality inspection agency to test and identify the main structure of the house.

Weightlifting is light. In the case of unqualified main structure of the house, the buyer has the right to refuse to accept the house and require the developer to bear the liability for breach of contract for overdue delivery.

If the quality of the 2. house seriously affects the normal living and use, the buyer has the right to refuse the house and require the developer to bear the liability for breach of contract after the overdue delivery of the house.

According to the provisions of the first paragraph of Article 13 of the interpretation on the sale of commercial housing, if the buyer requests to terminate the contract and compensate for the losses due to the serious impact of the quality of the house on the normal living use, it shall be supported. However, the law does not clearly define the degree of "seriousness". According to the above-mentioned cases, Jinan Intermediate People's Court held that there were phenomena such as water bleeding in the root of some walls in the basement of the house involved, water seepage marks in some floors and roof panels, cracks in some buildings, ground concrete layers and walls, etc., which were all quality defects and were not enough to produce the consequences that the house could not be delivered for use, therefore, Zhang refused to accept the house involved in the lack of legal basis. Therefore, the Jinan Intermediate People's Court believes that the "serious" degree is that the house cannot be delivered for use due to quality problems.

By consulting other relevant cases, when the court determines whether the quality of the house has reached the "serious" level, it will comprehensively consider whether the defect of the house can be repaired. If it can be repaired, it will not seriously affect the residence. If it cannot be used normally after repeated repairs, it will seriously affect the residence and the buyer has the right to terminate the contract.

Therefore, in the case that the quality problem of the house cannot be repaired, or it cannot be delivered for use after many repairs, the buyer has the right to reject the house and require the developer to bear the responsibility of overdue delivery.

In the case of general quality problems in the 3. house, the buyer shall not refuse to accept the house and has no right to require the developer to bear the responsibility of overdue delivery.

If the house has general quality problems, the buyer shall not refuse to accept the house, otherwise the resulting loss shall be borne by the buyer, and the developer shall bear the warranty responsibility for the quality problems during the warranty period. The general quality problem of the house refers to the situation that does not seriously affect the normal living use, such as slight water leakage, damage to doors and windows, wall cracks, etc.

During the warranty period, can the buyer require the developer to compensate for other losses caused during the warranty period, such as rent, property management fees, appraisal and evaluation fees, etc. In the above-mentioned cases, the Jinan Intermediate People's Court held that: Article 11 of the "Interpretation of Commercial Housing Sales" stipulates: "The transfer of possession of a house shall be regarded as the delivery and use of the house, unless otherwise agreed by the parties. The risk of damage or loss of the house shall be borne by the seller before delivery for use, and by the buyer after delivery for use; if the buyer receives a written delivery notice from the seller and refuses to accept it without justifiable reasons, the risk of damage or loss of the house shall be borne by the buyer from the date of delivery as determined in the written delivery notice, unless otherwise provided by law or otherwise agreed by the parties. Therefore, in the case that a company completes the delivery notice obligation as the delivery of the house, Zhang's request to pay the loss that cannot be used normally has no factual and legal basis." However, according to the case of the second issue of the Supreme People's Court Bulletin in 2016: Li Mingbai v. Nanjing Jinling Real Estate Development Co., Ltd. Commercial Housing presale Contract Dispute, the court held: "Due to the quality problems of the house sold by the seller, the buyer cannot use the house normally. If the two parties have not clearly agreed on how to calculate the actual loss caused by this, the people's court can calculate the actual loss of the buyer based on the rent of the same period."

Regarding the issue of whether the developer needs to bear the liability for compensation for other losses caused during the maintenance period, the court's opinions seem to be inconsistent, but they are all reasonable. They are all based on the cause of the specific loss, the time of occurrence, and whether it can be avoided. The result of comprehensive consideration of other factors. Therefore, when judging whether the developer needs to compensate for the loss, it is necessary to analyze the specific problems and cannot be generalized.

Our lawyer believes that the legislative basis of Articles 12 and 13 of the Interpretation on the Sale and Purchase of Commercial Housing is to ensure the safety of the buyer. Therefore, in order to ensure the personal safety of the buyer, the buyer is given the right to terminate the contract. At the same time, this provision and Article 148 of the Contract Law stipulate: "Because the quality of the subject matter does not meet the quality requirements, if the purpose of the contract cannot be achieved, the buyer may refuse to accept the subject matter or terminate the contract. If the buyer refuses to accept the subject matter or terminates the contract, the risk of damage or loss of the subject matter shall be borne by the seller." Complementary and interlinked. Therefore, when the main structure of the house is unqualified or the quality of the house seriously affects the buyer's residence, the purpose of the commercial housing sales contract has been unable to achieve, the buyer of course has the right to refuse to accept the house, and can require the developer to bear the responsibility for breach of contract of overdue delivery.

If there are general quality problems in the house, the buyer shall not refuse to accept the house on the grounds that there are quality problems in the house, otherwise the loss caused by the refusal shall be borne by the buyer. It should be noted that although the developer does not need to bear the responsibility for breach of contract for overdue delivery in this case, he is still obliged to repair the house. Whether the developer needs to compensate for other losses incurred during the maintenance of the house should be analyzed in detail. First, the developer needs to pay the buyer for the necessary and reasonable losses caused during the maintenance period. Secondly, the developer does not need to bear the losses caused by the buyer's unjustified non-cooperation with the house collection or maintenance work. In the above case, the Jinan Intermediate People's Court did not support Zhang's request for rent loss. The main reason was that the loss was caused by Zhang's deliberate postponement of the house collection without justifiable reasons, so a company did not need to bear the liability for compensation.

Lawyer Reminder

For the buyer, if it is claimed that the quality problem of the house seriously affects the normal living use, it needs to bear the burden of proof. The proof proves that the house has quality problems that seriously affect the normal living use when the house is handed over. Generally, it is necessary to appraise the quality of the house when the house is handed over. However, the appraisal cost is high and the period is long, which is relatively difficult, and the developer does not need to bear the responsibility for the loss expanded during the appraisal. Therefore, it is suggested that the buyer should indicate the problems existing in the house at the time of delivery on the house handover form, and require the quality of the house to be appraised. At the same time, during the appraisal period, certain measures should be taken to prevent the loss from expanding.

For developers, it is recommended to strengthen the supervision and management of construction quality, check the possible quality problems of the house door by door during the household acceptance, self-check before the house is handed over and actively deal with the problems found, and avoid the buyer as much as possible due to quality problems. And refuse to accept the house. If the buyer refuses to accept the house due to general quality problems, it is recommended that the developer patiently explain to the buyer, actively repair the house, and negotiate with the buyer.

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