Zhongcheng Qingtai real estate perspective: commercial housing height and the contract agreement does not conform to the compensation standard.

The construction of commercial housing should follow the relevant building codes and meet the delivery standards agreed in the commercial housing sales contract, otherwise the commercial housing development enterprise will face the risk of violation of the law and breach of contract. In practice, there are more and more disputes caused by the discrepancy between the floor height of commercial housing delivered by development enterprises and the contract agreement. How to calculate the losses caused by the lack of floor height to the buyers is not uniformly stipulated in the law of our country, and the compensation standards of different local courts are also quite different. Here, the author searches the typical cases in judicial practice, And put forward our tendentious opinions:

case retrieval]

1. Yin Yinhua and Qingdao Shizicheng Real Estate Development Co., Ltd. Dispute over Commercial Housing presale Contract ([2020] Lu 02 Min Zhong No. 1789)

General situation of the court's point of view: on the premise of not agreeing with the plaintiff's application for appraisal, the court decided to compensate the plaintiff for the loss of 300000 yuan due to insufficient floor height according to the evidence, cross-examination and statements of the parties in the court hearing, and considering factors such as the performance of the contract, the expected interests of the parties, the house price and the actual use effect of the house involved.

Court of First Instance: Regarding the amount of compensation, the contract involved did not agree on how to deal with the breach of contract caused by insufficient floor height. The plaintiff calculated the amount of loss as 900000 yuan according to the proportion of house volume reduction multiplied by the total house price. After that, the plaintiff applied for surveying and mapping the house area, floor height, available space or appraisal of the value of space occupied by other merchants to determine the amount of loss. The court of first instance held that the pricing method agreed in the contract was based on area, and Yin Yinhua advocated calculating the loss according to the proportion of space loss multiplied by the total house price, which was unfounded in law and the court of first instance did not support it. Regarding Yin's application for appraisal area, floor height, available space, occupied value, etc., the court of first instance held that the plaintiff and the defendant had no objection to the area corresponding to different floor heights in the house, and the house price was not priced by volume, and the reduction in floor height affected the buyer's subjective use and living experience to a certain extent. The defendant also did not agree to the appraisal, so the plaintiff's appraisal application was made, the court of first instance denied permission. Regarding the amount of compensation, the court of first instance decided that the defendant should compensate the plaintiff for the loss of 300000 yuan due to the lack of height of the plaintiff according to the evidence, cross-examination and statements of the parties in the court hearing, taking into account the performance of the contract, the expected interests of the parties, the house price and the actual use effect of the house involved. After the plaintiff was not satisfied with the judgment of "not agreeing to apply for appraisal", he filed an appeal.

Qingdao Intermediate People's Court: From the principle of fairness and good faith, this court believes that the defendant's behavior has defects in performance and should bear the corresponding liability for breach of contract. Regarding the amount of compensation, since the presale contract did not stipulate the liability for breach of contract for the reduction of the height of the case, the court of first instance considered the performance of the contract, the expected interests of the parties, the house price and the actual use effect of the house involved and other factors, and decided that the defendant should compensate the plaintiff for the loss of 300000 yuan due to the shortage of the height of the case. The court of second instance did not object to the comprehensive judgment, judgment upheld.

2. Dispute over Housing Sales Contract between Wang Meixiang and Shandong Xinao Real Estate Co., Ltd. ([2018] Lu 0902 Minchu 695)

Summary of the court's view: The court allowed the parties to apply for appraisal, but because the buyer explicitly did not apply for appraisal, the court rejected the claim on the grounds that the loss could not be determined.

Taishan District People's Court of Tai'an City: As a real estate development unit and a seller of commercial housing, the defendant's delivery of the sold house shall comply with the contract, otherwise it is improper performance, and shall be liable for breach of contract based on the reasonable losses caused to the buyer by the defective performance. Although the difference between the floor height of 2.9 meters agreed in the contract and the actual floor height of 2.8 meters of the house involved is 0.1 meters, the floor height difference has no effect on the construction area of the house. Therefore, the plaintiff's request to refund the purchase price and compensate for the losses according to the area difference treatment clause has no factual basis, and the court does not support it. The plaintiff's floor height loss should be determined around the defendant's reduced development cost due to the reduction of floor height, but the plaintiff made it clear that it would not apply for the appraisal of the defendant's reduced development cost due to the reduction of floor height, so the court could not determine the plaintiff's floor height loss.

3. Dispute over Commercial Housing presale Contract between Ye Mao and Shaanxi Yibo Real Estate Co., Ltd. ([2017] Shaanxi Minshen No. 1584)

General situation of the court's point of view: the agreed floor height is 3 meters, the actual floor height is 2.9 meters, which is better than the national standard (2.8 meters), and the buyer has not proved the actual loss, and the buyer has decided to compensate 1000 yuan for the loss of insufficient floor height.

Shaanxi High Court: The floor height agreed in the contract is 3 meters, and the floor height of the house actually delivered is 2.9 meters, which constitutes a breach of contract and shall be liable for breach of contract. However, since the amount or calculation method of such liquidated damages is not stipulated in the contract, the relevant laws have not clearly stipulated it, and the applicant has not submitted relevant evidence claiming actual losses. Considering that the floor height of the house marked by Yibo Company in the general plan of the project submitted for approval is also 2.9 meters, and this floor height is better than the national floor height standard, combined with the fault degree of the breaching party in this case and the performance of the contract, the original judgment decided that it was not improper for the respondent to compensate the applicant for the economic loss of 1000 yuan.

4. Disputes over Housing Sales Contracts between Su Tao, Dang Xia and Zhangqiu Branch of Shandong Tianye Henderson Co., Ltd. ([2017] Lu 0181 Minchu No. 3515)

General situation of the court's point of view: the court adopted the opinions of the appraisal institution and ruled that the developer should compensate the high-rise loss of 148500 yuan.

The People's Court of Zhangqiu District, Jinan City: The agreed floor height is 5 meters and the actual floor height is 4.55 meters. According to the buyer's application, the court entrusted an appraisal institution to appraise the loss of house value caused by the reduction of floor height. The appraisal house value loss was 148500 yuan. The court adopted the opinion of the appraisal institution and ruled that the developer should compensate the loss of floor height for 148500 yuan.

5. Dispute over Commercial Housing Sales Contract between Wang Shihua and Shanghe Branch of Zibo Jiayuan Real Estate Development Co., Ltd. ([2015] Shangmin Chuzi No. 1346)

Overview of the court's point of view: the agreed floor height is 3 meters, the actual floor height is 2.9 meters, and the developer is determined to compensate 2% of the total house price.

Shanghe County People's Court: Wang Shihua advocates that according to the "Evaluation Report", the loss of 10cm reduction in the height of the house involved is 108 yuan/square meter. However, the court believes that due to the different positions of the reduced height of 10cm in the housing pattern, the cost is also different, and the loss of 10cm reduction in height cannot be simply calculated according to the proportion of the reduced height of 10cm to the contracted height of 3 meters. According to the reply of the appraisal organization, the loss of housing cost value corresponds to the reduction of development cost of real estate developers, which consists of three parts: land cost, construction cost and real estate development cost. After visiting several real estate development companies, we know that the loss of floor height does mainly include land cost, construction cost, development cost and other related expenses, and after consultation, we know that the profit of developers developing real estate is about 20%-40%, the building cost reduction of 10cm in floor height is reduced by about 2%-3%. Jiayuan Shanghe Branch claims that according to the article "The Relationship between Floor Height and Cost of Commercial Housing Cost Control", the average reduction of residential floor height by 0.1 meters can reduce the construction cost by about 2%. Although the article is an academic article, it is generally consistent with the data obtained by our hospital after consulting the relevant units.

To sum up, considering the price of the house involved, the degree of floor height error, the impact on the use value of the house, and the level of economic and social development, since Wang Shihua purchased the house involved according to the market price, the hospital has decided that Wang Shihua's loss due to the reduction of 10cm in floor height is 2% of the total house price, I .e. 6463.97 yuan (3460 yuan/m2 × 93.41 m2 × 2%).

6. Zhongshan Hongze Real Estate Development Co., Ltd. and Cai Mingwei's Commercial Housing presale Contract Dispute ([2019] Yue 20 Min Zhong No. 2804)

Overview of the court's point of view: the agreed floor height is 3 meters, and the actual floor height is 2.9 meters. It is decided to compensate the loss according to 3% of the house price.

The Intermediate People's Court of Zhongshan City, Guangdong Province: The actual floor height of the house involved in the case was 2.9 meters, and the floor height of the house was clearly stipulated in the contract to be 3 meters. Based on this, it can be determined that the fact of breach of contract that the floor height of the house delivered by Hongze Company does not conform to the contract is established. If it cannot prove that it has statutory and agreed exemptions, it should bear the corresponding liability for breach of contract. Although there is no agreement in the sales contract on how to deal with the breach of contract caused by the lack of floor height, and Cai Mingwei and Cai Wenyou have not provided evidence on the actual losses caused by the lack of floor height, the fact that the lack of floor height causes the limited living space of Cai Mingwei and Cai Wenyou and the depreciation of the use function and value of the house objectively exists, and the lack of floor height cannot be remedied, so Hongze Company should still compensate for the losses to Cai Mingwei and Cai Wenyou. According to the actual situation of the case, taking into account the performance of the contract, the degree of fault of the parties, the expected benefits, the reduction ratio of housing space, the house price and other factors, Cai Mingwei and Cai Wenyou advocate that Hongze Company compensate Cai Mingwei and Cai Wenyou for the breach of contract losses of 15694 yuan (523146 yuan × 3%) due to insufficient floor height according to 3% of the purchase price.

7. Dispute over Commercial Housing presale Contract between Wu Jin and Chu Aishue and Zhuji Zhancheng Real Estate Co., Ltd. ([2015] Shao Zhu Min Chu Zi No. 57)

General situation of the court's point of view: the agreed floor height is 3 meters and the actual floor height is 2.95 meters. based on the house price of 1190908 yuan, the floor height loss is calculated according to the 1/60 floor area ratio of the house. the claim that the floor height loss is calculated according to the agreed floor area difference is not supported.

Zhuji Municipal People's Court: Although the actual floor height of the house is 2.95 meters, which meets the minimum standard requirements for the design floor height of commercial housing, and has passed the planning acceptance, it is inconsistent with the floor height of 3.0 meters agreed in the contract, which is a breach of contract by the defendant. The defendant should bear the losses caused by the breach of contract. However, the plaintiff requested that the compensation for insufficient floor height should be calculated improperly according to the agreement on the error of the housing area in the contract. The court adjusted the housing price to 1190908 yuan according to the law and calculated it to 19848.47 yuan according to the 1/60 of the floor area ratio of the housing. The excess should be rejected.

The lawyer's point of view]

In the case that the contract does not stipulate the liability for breach of contract and the actual floor height of the house meets the national standards, in most cases, the court will make a judgment directly based on the appraisal opinion after the appraisal institution issues the appraisal opinion, or use the appraisal opinion as a reference, taking into account the performance of the contract, the expected interests of the parties, the house price, the actual use effect of the house involved, the nature of the house, the area, the price, the size of the floor height error, the value of the house and the degree of influence on the buyer to make a judgment.

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