Help the war "epidemic" (I) real estate enterprises to deal with the delay in the delivery of housing legal advice.

Since the outbreak of the epidemic, the General Office of the State Council, the Shandong Provincial Department of Human Resources and Social Security, and the Shandong Provincial Department of Housing and Urban-Rural Development have successively issued important documents on delayed resumption of work and epidemic prevention and control work. Ordinary commercial housing development and construction projects should be appropriately delayed. In addition to receiving temperature tests, the Jinan Municipal Housing and Construction Department requires all employees who enter and leave Wuhan and Hubei to return to the economy, as well as those who have close contact with the above, self-isolation shall be carried out for not less than 14 days, and the resumption of work shall be suspended before the incubation period, and the commencement of all projects in 2020 (including pile foundation construction) and the resumption of work shall be notified separately in accordance with the relevant requirements of epidemic prevention and control. Combined with the latest specific regulations issued by the national, provincial and municipal governments, the epidemic has had a substantial impact on the resumption of commercial housing construction, resulting in ordinary commercial housing development enterprises and construction projects delayed start, resumption of work, in the case of construction projects lagging behind, real estate enterprises there is a risk of late delivery of housing.

According to Article 117 of the the People's Republic of China Contract Law, if the contract cannot be performed due to force majeure, part or all of the liability shall be exempted according to the influence of force majeure. For the purposes of this Law, force majeure means unforeseeable, unavoidable and insurmountable objective circumstances. In combination with judicial practice, the SARS epidemic in 2003 and the H7N9 avian influenza epidemic in 2013 were all identified as force majeure events under certain circumstances, and the novel coronavirus pneumonia epidemic has been identified as a particularly major public health emergency, which is similar to the 2003 The level of the "SARS" epidemic is the same. Since this epidemic has been identified as a particularly major public health emergency, not only ordinary people cannot foresee, moreover, medical experts with extensive medical knowledge cannot foresee it; since its outbreak, there has been no effective way to prevent its spread; although many patients have recovered from the hospital after treatment, the medical community has not yet determined the exact and effective treatment method, nor can it accurately judge the duration and end time of the epidemic, which is unpredictable, unavoidable and insurmountable by the parties concerned. Therefore, at the legal level, lawyers tend to believe that the new coronavirus pneumonia epidemic should be recognized as force majeure in law, but whether the parties to the contract are exempt from liability and the period of exemption must be specific to a certain contractual relationship, according to the actual performance of the contract, the degree of impact of the epidemic, causality and other comprehensive determination.

In order to realize the legal and well-founded exemption of real estate enterprises from liability for delayed delivery due to the epidemic, the following legal recommendations are made for the reference of real estate enterprises, taking into account our experience in building real estate legal services:

1. establish a contract ledger to distinguish between the signing time of the purchase contract and the agreed delivery time.

It is recommended that real estate enterprises sort out the contract signing time and agreed delivery time of each real estate development project that has not yet been delivered in the sales area, and for real estate development projects that may have overdue delivery, timely establish a contract ledger (see the table below) to distinguish the signing time of the purchase contract and the agreed delivery time.

2. collect and implement relevant evidence that the project is in normal construction progress and status before the outbreak.

Collect and sort out relevant evidence to prove that before the outbreak of the epidemic, the project has been in a state of normal construction according to the contract, and there has been no unauthorized shutdown, slowdown or other circumstances that may constitute overdue completion and delivery (I .e. if there is no epidemic, it is reasonably believed that the completion and delivery can be completed on schedule). The forms of evidence include but are not limited to: relevant evidence of node construction period completion, relevant evidence of construction progress payment, construction log, supervision log, etc.

3. to collect and implement relevant evidence that the epidemic poses a substantial obstacle to project construction and housing delivery.

Based on the different severity of the epidemic in different places, local governments have different measures to prevent and control the epidemic. According to the civil rules of proof, real estate enterprises have the obligation to provide evidence during the period when the contract cannot be actually performed due to force majeure and the contract cannot be performed due to force majeure.

1. Collect and sort out relevant notices, documents, official documents and correspondence information on epidemic prevention and control at construction sites, including but not limited to the state, Shandong Province, Jinan City and various districts and counties.

In addition to the government documents that have been issued so far, it is necessary to further follow up and sort out all kinds of relevant policy documents on the control of the epidemic situation in real estate construction projects issued by the competent departments of provinces, cities and district and county governments, as well as relevant notices and correspondence documents copied or sent directly to real estate enterprises. Real estate enterprises may also consider asking the competent government departments to reply in writing to the specific time and restriction requirements for the commencement and resumption of construction projects.

2. Focus on collecting relevant written evidence of specific restrictions and controls in the field of construction workers due to epidemic prevention and control.

In view of the fact that a large number of migrant workers are employed by construction units, they should properly handle the removal, detection and isolation of personnel returning from Wuhan and Hubei and those in close contact with them. It is suggested that real estate enterprises should require construction units to do a good job in the protection and management of construction sites in accordance with the requirements of the Emergency notice on strengthening the Prevention and Control of New Coronavirus epidemic issued by Jinan Housing and Urban and Rural Construction Bureau, provide written information such as the origin of migrant workers, their experience of entering and leaving Wuhan and their contact history with relevant personnel to real estate enterprises, as well as instructions and relevant photos and other materials on whether there is any need for personnel isolation in case of resumption of work. The materials will also be used as one of the evidences for real estate enterprises to apply legal provisions and contractual exemptions, especially for extending the exemption period for deferred delivery to include the expiration of 14 days of self-isolation.

3. After the government notifies the resumption of work, the real estate enterprise shall promptly request the construction units to resume work in writing, and after the resumption of work, if the epidemic control still leads to labor shortage, insufficient supply of materials, etc., the construction units and suppliers shall be required to issue corresponding certificates and provide objective evidence.

According to the "Emergency Notice on Strengthening the Prevention and Control of Novel Coronavirus Epidemic on Construction Sites" issued by Jinan Housing and Urban-Rural Construction Bureau, it is clear that "the commencement (including pile foundation construction) and resumption time of all projects in 2020 will be notified separately according to the relevant requirements of epidemic prevention and control". Based on this, it is reasonable to infer that the competent department will give another notice on the resumption time. At that time, real estate enterprises should promptly notify all construction units according to arrange the resumption.

Considering that the period during which the epidemic is effectively controlled cannot be determined, even if the competent government authorities allow conditional construction and resumption of work, it is not ruled out that the epidemic control measures will still lead to a shortage of migrant workers and insufficient supply of construction materials. It is recommended that real estate companies should require construction units and suppliers to promptly notify real estate companies and provide objective evidence in accordance with Article 118 of the the People's Republic of China Contract Law or the contract. The above notice and objective evidence can also be used as evidence for real estate enterprises to defend against the exemption of overdue housing in the future.

4. In the construction process, if the epidemic prevention and control obviously affects the construction period, the real estate enterprise shall also reflect truthfully and objectively through correspondence, project visa form, work contact form, meeting minutes, supervision log, etc. according to the objective situation and the contract agreement.

After the resumption of the project, if there are still situations such as large-scale personnel isolation and material shortage, the construction materials such as correspondence between the construction unit, supervision unit, supply unit and real estate enterprise and the formation of supervision log will reflect the impact of the epidemic on the construction progress to a certain extent, real estate enterprises shall require all construction units, supply units and supervision units to cooperate with previous letters, project visa forms, work contact letters, meeting minutes and other ways to truthfully reflect. These materials may also be used as relevant evidence for real estate enterprises to defend the exemption period for overdue delivery.

4. recommend that a notice of force majeure be sent to the purchaser in a timely manner and that relevant evidence be retained.

According to Article 118 of the "the People's Republic of China Contract Law", "If one of the parties is unable to perform the contract due to force majeure, it shall notify the other party in time to reduce the losses that may be caused to the other party, and shall provide proof within a reasonable period of time". It is recommended that commercial housing development companies promptly issue force majeure notices to buyers. The specific operation steps are as follows:

1. Make the text of the Force Majeure Notice on the New Coronavirus Pneumonia Outbreak, which can be referred:

Notice of Force Majeure on the New Coronavirus Pneumonia Outbreak

Dear XX Project Owner:

Hello!

First of all, thank you for your support and attention to XX Project (hereinafter referred to as "this Project") and our company. Due to the control of the novel coronavirus pneumonia epidemic and government administrative orders, the building where you purchased the house will be postponed/resumed after the Spring Festival in 2020, which has seriously affected the performance of the Commercial Housing Sales Contract between you and us. The specific notice is as follows:

Since the discovery of unknown pneumonia patients in Wuhan on December 8, 2019, the new coronavirus pneumonia epidemic has developed rapidly, and so far, the data on confirmed infections are still rising, with unprecedented severity and scope of impact. In order to strengthen the prevention and control of the epidemic, effectively reduce the gathering of people and stop the spread of the epidemic, the General Office of the State Council, the Department of Human Resources and Social Security of Shandong Province, the Department of Housing and Urban-Rural Development of Shandong Province and the Housing and Urban-Rural Construction of Jinan City have successively issued emergency notices on extending the Spring Festival holiday and delaying the resumption of work of enterprises, clearly stopping all construction projects in 2020, in addition, employees entering and leaving Wuhan and Hubei and those in close contact with them need to be sorted and isolated. In particular, the Jinan Municipal Bureau of Housing and Urban-Rural Development, in accordance with the requirements of the prevention and control of the epidemic in Jinan, issued the "Emergency Notice on Strengthening the Prevention and Control of the New Coronavirus Epidemic on Construction Sites", clearly "for the start of all projects in 2020 (including pile construction), the resumption of work time, in accordance with the relevant requirements of the epidemic prevention and control will be notified separately". According to Article 180 of the General Principles of the Civil Law and Article 117 of the Contract Law, the above-mentioned epidemic situation has constituted force majeure for both parties to perform the commercial housing sales contract. If the construction period is delayed, our company has the right to postpone the delivery date of the house for a period equivalent to the duration of the impact of such time and does not need to bear any responsibility for the delay.

In view of the fact that the epidemic is a continuous event, we are not sure how long it will last and when it will end. In this regard, we would like to explain the relevant matters to you in order to obtain your understanding. If you have any questions, please call our sales center. I wish you and your family a happy and happy family. We look forward to your and your family settling down in this project as soon as possible.

Attached with relevant certification materials

XX Co., Ltd.

XX, XX, 2002

2. Send the "Notice of Force Majeure on the New Coronavirus Pneumonia Epidemic Event" to the buyer by EMS postal express in a timely manner, and clearly indicate the words "Notice of Force Majeure on the New Coronavirus Pneumonia Epidemic Event" on the express details sheet; The receiving information shall be filled in the receiving information clearly stated in the Commercial Housing Sales Contract. Pay attention to requiring express delivery companies to provide written delivery receipts, after mailing, properly keep the mailing base, express delivery form and delivery receipt.

3. If the construction or resumption of work, due to changes in the epidemic again have a substantial impact on the construction of the construction project, the real estate enterprise should also promptly issue a new notification letter in writing to the buyer. If the subsequent changes in the epidemic again cause substantial obstacles to the construction of the project, the real estate enterprise shall also send the relevant notice in writing again in accordance with the aforementioned process.

The 5. maintains a good communication mechanism with construction units, suppliers, etc., requiring them to provide objective evidence of force majeure leading to failure to perform, and for units that maliciously delay construction and overdue supply under the pretext of "government epidemic control", timely take corresponding measures.

 

1. The real estate enterprise shall require the construction unit and supplier unit that are unable to perform the contract to provide the real estate enterprise with written proof of force majeure.

Real estate enterprises shall guide construction units and suppliers that are unable to perform the contract due to epidemic control to provide written notice and objective evidence of inability to perform the contract and specific period to the real estate enterprises, and provide objective evidence of force majeure (such as geographical composition of migrant workers, current situation of migrant workers returning to the city, specific isolation and control measures taken by the government, upstream suppliers unable to stock up, logistics companies stopping operations, etc.), it is required that the relevant evidence must be specific, clear, objective and detailed to reflect the relevant situation.

2. In the name of "government epidemic control", units that delay the construction period and overdue supply shall be stopped and corrected in a timely manner by means of written urging and claiming liability for breach of contract.

As the project employer and material purchaser, the real estate enterprise shall take all reasonable measures to urge the opposite party to perform the contract as soon as possible, and minimize the adverse consequences of overdue completion and delayed delivery. If the relevant unit maliciously delays the construction period or supply under the name of "government epidemic control", the real estate enterprise shall promptly urge the other party to perform the contract according to the relevant contract, or claim the liability for breach of contract, and terminate the contract if necessary.

6. evidence collection to deal with the risk of delayed delivery.

In order to properly deal with the risk of delayed delivery due to the epidemic, real estate companies can collect evidence in advance from the following areas:

Collect notices and documents from national and local governments and competent departments on the resumption of work, as well as epidemic reports issued by authoritative departments such as medical institutions. For example, the notice of the general office of the State Council on extending the Spring Festival holiday in 2020, the emergency notice on delaying the resumption of work of enterprises in the province by the Department of human resources and social security of Shandong Province, the emergency notice on the prevention and control of new coronavirus infection pneumonia epidemic by the Department of housing and urban rural development of Shandong Province, and the emergency notice on strengthening the prevention and control of new coronavirus epidemic on construction sites by Jinan housing and urban and rural development bureau.

This real estate enterprise or other real estate enterprises to the competent authorities to inquire about the opening of the resumption of work documents, etc.

The list of personnel returning to Wuhan and Hubei and those in close contact with them, information of relevant personnel, description of the situation and isolation photos, etc. are reflected in the case of resumption of work issued by the construction unit.

Correspondence and corresponding objective evidence issued by construction units and material suppliers reflecting the inability to perform contractual obligations due to the epidemic.

Supervision logs and information notes issued by the supervision unit reflecting the delay in the performance of contractual obligations by the construction unit and material supply unit due to the epidemic and the substantial impact on the construction period.

The "Commercial Housing Sales Contract" containing the force majeure exemption clause for the corresponding deferred delivery.

Letter of notification of force majeure sent to property buyers, postal courier slip and receipt.

The 7. properly arranges the delivery period of the newly signed Commercial Housing Sales Contract during the epidemic based on a reasonable estimate of the impact of the construction period.
 

In view of the newly signed Commercial Housing Sales Contract after the outbreak of the epidemic, in view of the fact that real estate enterprises should have foreseen the possible impact of the epidemic on the construction period, and according to the relevant provisions of the General Provisions of the the People's Republic of China Civil Law and the the People's Republic of China Contract Law, the objective situation of force majeure must occur after the establishment of the contract and before it is performed, so the newly signed Commercial Housing Sales Contract after the outbreak does not apply force majeure in principle to be exempted, the real estate enterprise shall properly arrange the delivery period of such contracts according to the reasonable estimate of the construction period, and the purchaser shall give a written explanation of the exemption of the real estate enterprise from the liability of the real estate enterprise under such circumstances.

Business introduction: As the advantageous business of Zhongcheng Qingtai (Jinan) Law Firm, urban construction real estate legal affairs has formed a mature business system in the non-litigation and litigation services of urban construction legal affairs disputes and other disputes. At present, it has provided professional and full-process legal services for many large-scale real estate projects in Shandong Province and Jinan City. The service clients include Zhonghai Real Estate, Greentown Real Estate, Longhu Real Estate, Country Garden, Greenland Real Estate, Jinke Real Estate, Jindi Real Estate, Luneng Real Estate, Lushang Real Estate, Golden Real Estate, Jinan Xicheng Investment and Development Group Co., Ltd., Jinan Urban Construction Group Co., Ltd., etc.