The legal risks and prevention of commercial housing sales contracts -- from the perspective of real estate development enterprises.

[Abstract]]On the basis of defining the legal characteristics of commercial housing sales contracts, this paper closely links with the practice of commercial housing sales transactions, combs many irregular behaviors of real estate development enterprises in the process of signing and performing commercial housing sales contracts, analyzes many legal risks arising therefrom, and puts forward specific measures and suggestions to prevent and control risks, hoping to standardize commercial housing transactions and prevent legal risks of commercial housing transactions.

Subject words]Commercial housing sales contract legal risk.   

 

Since the first public land auction in Shenzhen in 1987, China has vigorously promoted the reform of the housing system, and even the real estate industry has gradually become one of the pillar industries of China's national economy, which has been developed for more than 30 years. Especially in the last ten years, the state and local governments have continuously catalyzed the accelerated development of national real estate, and my country's real estate industry has entered the era of commercialization. In this major development process, as the most important two-party market subject of the real estate industry, the real estate enterprises of real estate product providers and the consumers (or investors) of real estate products are also growing and maturing. Nevertheless, we are fully aware that with the continuous improvement and development of my country's real estate market regulation and real estate policies and laws, real estate companies (providers of real estate products) and consumers (or investors) of real estate products still exist in real estate market transactions. Many irregular behaviors have resulted in many legal risks.

Generally speaking, real estate transactions mainly include land and housing expropriation, transfer and transfer of state-owned land use rights, mortgage and transfer of collective land use rights, sale or lease of commercial housing, transfer of real estate projects (transfer of real estate construction in progress or transfer of equity of project companies), etc. Commercial housing is one of the most common real estate transactions in the real estate market and one of the most important business operations of real estate enterprises. Due to the type of real estate transactions, the scope and the complexity and complexity of the transaction subject, this paper is limited to combing the real estate development enterprises in the commercial housing sales contract signing, performance process of many non-standard behavior, so as to analyze the resulting many legal risks, and real estate enterprises to prevent and control the commercial housing sales of a number of risks put forward specific measures and suggestions.

Basic Problems of 1. Commercial Housing Sales Contract
 

1, the definition of commercial housing sales contract.

Article 3 of the Measures for the Administration of Commercial Housing Sales (Order No. 88 of the Ministry of Construction) stipulates: "Commercial housing sales include commercial housing sales and commercial housing presale. The current sale of commercial housing refers to the behavior that the real estate development enterprise sells the commercial housing that has passed the completion acceptance to the buyer, and the buyer pays the house price. Commercial housing presale refers to the act that the real estate development enterprise sells the commercial housing under construction to the buyer in advance, and the buyer pays the deposit or house price. Article 16 of the" Commercial Housing Sales Management Measures "(Ministry of Construction Order No. 88) It stipulates:" When selling commercial housing, the real estate development enterprise and the buyer shall conclude a written commercial housing sales contract."

According to Article 1 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 (Fa Shi [2003] No. 7), a commercial housing sales contract refers to a real estate development enterprise that sells and transfers the ownership of the house to the buyer and the buyer pays the price, including commercial housing presale contracts and commercial housing sales contracts.

According to the above-mentioned laws and regulations, the main features of the "Commercial Housing Sales Contract" are: 1. The subject matter of the commercial housing sales contract is the houses under construction and completed, of which the houses under construction are commonly referred to as off-plan houses and uncompleted buildings, including those that have not been approved according to law. Houses that have been built or are under construction; houses that have been completed are built, including houses that have passed the acceptance by the relevant departments and houses that have not yet passed the acceptance. 2. The transfer of ownership of the subject matter is conditional on registration. Article 133 of China's Contract Law stipulates that the ownership of the subject matter shall be transferred from the time of delivery of the subject matter, unless otherwise provided by law or otherwise agreed by the parties. Article 9 of the "Property Law" stipulates that the establishment, alteration, transfer and elimination of real property rights shall be effective after registration in accordance with the law; without registration, it shall not be effective, unless otherwise provided by law.

2, the current effective commercial housing sales contract model text.

The Ministry of Housing and Urban-Rural Development and the State Administration for Industry and Commerce jointly issued the current "Model Text of Commercial Housing Sales Contract (presale)" (GF-2014-0171) and "Model Text of Commercial Housing Sales Contract (Current Sale)" (GF-2014-0172) on April 9, 2014. The current model contract text mainly has the following characteristics: first, on the basis of equally safeguarding the legal rights of both buyers and sellers and clarifying the obligations of both parties, pay more attention to the protection of the rights and interests of the buyer; second, prompt the problems that are easy to be ignored in the process of signing the contract, guide the buyer and seller to make commitments and inform the important matters of the contract; third, guide the buyer and seller to agree on matters that are not clearly stipulated by laws and avoid disputes; fourth, the liability for breach of contract between buyers and sellers is refined, and the applicability and operability of the contract are enhanced.

presale Model Text Catalog VS Model Text Catalog for Sale

Description

Description

Explanation of professional terms

Explanation of professional terms

Chapter I Parties to a Contract

Chapter I Parties to a Contract

Chapter II Basic Conditions of Commercial Housing

Chapter II Basic Conditions of Commercial Housing

Chapter III Price of Commercial Housing

Chapter III Price of Commercial Housing

Chapter IV Conditions and Procedures for Delivery of Commercial Housing

Chapter IV Conditions and Procedures for Delivery of Commercial Housing

Chapter V Treatment of Area Differences

hand drawn

Chapter VI Planning and Design Alteration

hand drawn

Chapter VII Commercial Housing Quality and Warranty Responsibility

Chapter V Commercial Housing Quality and Warranty Responsibility

Chapter VIII Contract Filing and Housing Registration

Chapter VI Housing Registration

Chapter IX Prophase Property Management

Chapter VII Property Management

Chapter X Other Matters

Chapter VIII Other Matters

From the above comparison, it is not difficult to see that the main difference between the presale model text and the current model text lies in the agreement of the terms of "area difference handling method", "planning and design change" and "contract filing. There is no doubt that due to design changes, construction deviations and other reasons, the delivery of commercial housing presale is different from the contract agreement to a certain extent, which determines that the content and matters involved in the presale model text are more comprehensive than the current model text. Therefore, the commercial housing sales contract referred to in this paper is mainly based on the analysis of the presale model text.

3, the main content of the commercial housing sales contract and the establishment of the contract.

The civil legal acts and civil liabilities related to the commercial housing sales contract shall be dealt with in accordance with the General Principles of Civil Law, the General Principles of Civil Law and other relevant provisions; the commercial housing sales contract is a special sales contract, and the establishment and validity of the contract shall be determined. The relevant provisions of the Contract Law shall apply. In this regard, Article 174 of the "Contract Law" clearly stipulates: If the law has provisions on other paid contracts, follow their provisions; if there are no provisions, refer to the relevant provisions of the sales contract. Therefore, the relevant legal provisions on sales contracts in the Contract Law can be applied to general commercial housing sales contracts. At the same time, in judicial practice, a contract that meets the following conditions is recognized as a valid contract: 1. The subject is qualified, and the parties should have the qualifications for contracting under the law. According to the general principles of civil law, the contracting party should have the general capacity to conclude a contract. 2. The expression of meaning is true, that is, the content of the contract is the expression of the expression of the person, which truly reflects the inner meaning of its effectiveness; 3. It does not violate the mandatory provisions of laws, administrative regulations or the public interest of society.

Article 16 of the Measures for the Administration of Commercial Housing Sales (Order No. 88 of the Ministry of Construction) stipulates: "The commercial housing sales contract shall specify the following main contents: (1) the name or name and domicile of the parties concerned; The basic conditions of the (II) commercial housing; The sales method of the (III) commercial housing; The determination method and total price, payment method and payment time of the (IV) commercial housing price; (V) the delivery conditions and date; (VI) decoration and equipment standard commitment; (VII) the delivery commitments and related rights and responsibilities of supporting infrastructure and public facilities such as water supply, power supply, heating, gas, communications, roads, greening, etc.; (VIII) the ownership of property rights of public supporting buildings; the handling of differences in (IX) areas; (X) handling of property rights Registration related matters; (11) Methods for resolving disputes; (12) Liability for breach of contract; (13) Other matters agreed by both parties." It should be noted that Article 12 of the Contract Law also stipulates: "The content of the contract shall be agreed upon by the parties and generally includes the following clauses: (1) the name or name and domicile of the parties; the subject matter of the (II); the quantity of the (III); the quality of the (IV); the (V) price or remuneration; the time limit, place and method of performance of the (VI); the (VII) of liability for breach of contract; (VIII) method of dispute resolution. The parties may conclude a contract by reference to the model texts of various types of contracts."

According to the above regulations, we believe that the main contents of the commercial housing sales contract stipulated in the Measures for the Administration of Commercial Housing Sales are not all the elements of the establishment of the contract, such as the liability for breach of contract, dispute resolution clauses, etc., but the main contents involving the main body, target, quantity, quality, price and performance of the contract should be the elements of the establishment of the contract, such as the main body of the contract, the target (commercial housing), the housing price (housing), if the contract does not have these establishment requirements and cannot be supplemented, or if a factual contract cannot be formed in accordance with Articles 36 and 37 of the Contract Law, the commercial housing sales contract is not established.

4, commercial housing sales contract registration record whether affect the validity of the contract.

my country's commercial housing sales contract registration and filing system was created in the "the People's Republic of China City Real Estate Management Law" promulgated on July 5, 1994. The second paragraph of Article 44 stipulates: "Commercial housing presale shall report presale contracts in accordance with relevant national regulations. The real estate authority and the land authority of the people's government at or above the county level are registered and filed." This laid the legal basis for the registration and filing system of commercial housing presale contracts. Article 10 of the Measures for the Administration of the presale of Urban Commercial Housing promulgated on November 15, 1994 stipulates: "For the presale of commercial housing, the development enterprise shall sign a commercial housing presale contract with the purchaser. The presale shall, within 30 days from the date of signing the contract, go through the registration and filing procedures with the real estate administration department and the land administration department of the people's government at or above the county level with the commercial housing presale contract." This makes the registration and filing system concrete in the form of departmental regulations.

Article 6 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" stipulates: "If the parties request to confirm that the contract is invalid on the grounds that the commercial housing presale contract has not been registered and filed in accordance with the provisions of laws and administrative regulations, they will not Support. If the parties agree to go through the registration and filing procedures as the conditions for the entry into force of the commercial housing presale contract, from its agreement, but one of the parties has fulfilled the main obligations, except for the other party to accept." Therefore, the registration and filing is the administrative measures implemented by the state on the presale of commercial housing, rather than the premise of the establishment and entry into force of the "commercial housing sales contract". If the "commercial housing sales contract" is not registered and filed, its effectiveness will not be affected. The provisions of the judicial interpretation are also fully consistent with the provisions of Article 9 of the (I) of the Supreme People's Court on the Interpretation of Several Issues Concerning the Application of the the People's Republic of China Contract Law.

Legal Risk and Prevention of Non-standard Behavior in the Process of Signing 2. Commercial Housing Sales Contract
 

1, the sale of existing housing applicable to the "commercial housing presale contract" text of the risk prevention.

In practice, there are many reasons such as the original buyer's default check-out and other reasons, the house was already an existing house when it was sold separately, but because the house was previously sold in the construction committee and other government departments for the presale permit filing, although it is an existing house sale, it still needs to be In accordance with the "Commercial Housing presale Contract" for online signing and filing.

The main problem with the sale of existing houses, which is different from the delivery of future houses, is the buyer's recognition of the current situation of the house before purchasing the house, which includes but is not limited to the delivery conditions of the house area, floor height, type, orientation, structure (beams, partition walls, etc.), decoration standards, etc. Therefore, in the case that the above-mentioned "Commercial Housing presale Contract" needs to be signed due to the relevant requirements of presale filing and online signing, but the house is actually an existing house, in the signing of the text of the "Commercial Housing presale Contract, both parties shall confirm the measured area of the house in the supplementary agreement (no more price difference settlement), and make clear agreement on the delivery standards of the house type, floor height, orientation, structure, decoration, water, electricity and heat, etc., and the delivery time, so as to avoid the legal risk of delivery default upon signing the contract.

2, no contract basis for non-standard sales behavior and related legal risks.

Problems in practice:

(1) In the absence of any written "Letter of Intent to Subscribe" or "Commercial Housing Sales Contract" between the seller and the buyer, the seller will receive part of the buyer's money;

(2) In the case that the buyer has not signed the written "Commercial Housing Sales Contract", the seller shall first sign the "Commercial Housing Sales Contract" for the purpose of online signing for the record.

Legal risks:

(1) Lack of contractual basis for the performance of the rights and obligations of both parties

Under the above-mentioned circumstances, both parties have not directly concluded the Commercial Housing Purchase and Sales Contract. If part of the purchase payment is involved, it can be indirectly presumed that the purchase and sales relationship is established, but there is no contractual basis for the performance of the rights and obligations of both parties. Once the buyer does not cooperate in signing the written Commercial Housing Purchase and Sales Contract, the seller claims to require the buyer to pay, according to what standard, when and how to pay the remaining amount, there is no effective contractual basis for the liability for breach of contract and the dissolution of the buying and selling relationship between the two parties.

(2) There are certain obstacles to the revocation of online signature filing.

The online signing and filing is only an administrative means adopted by the government to avoid the sale of one house and two houses by real estate development enterprises. Only the online signing and filing does not have the legal effect of the establishment of the commercial housing sales contract. The online signing and filing of the commercial housing sales contract is often a unilateral act of the real estate development enterprise, and the cooperation of the buyer is not required. Generally speaking, the online signing and filing contract only reflects the specific information of the buyer and the house purchased, and does not reflect the buyer's approval and signing of the commercial housing sales contract for the online signing and filing.

The revocation of the online signature filing, although different from place to place, often requires the seller, the buyer to reach an agreement, or according to the litigation/arbitration proceedings under the effective judicial decision documents to be revoked. Therefore, once the online signing is filed, if the buyer maliciously does not cooperate with the signing of the written "Commercial Housing Sales Contract" according to the online signing and filing version and refuses to pay the house price, it will cause unnecessary trouble for the seller to cancel the online signing and filing contract.

3. Legal risks related to defective contracting

Problems in practice:

(1) The contact information and mailing address of the Buyer are not fully filled in;

(2) Not signed by the buyer or the principal, or even signed by the sales agent;

(3) The seller's review of the buyer's power of attorney is not strict, and the buyer's agent lacks the necessary authorization and entrustment procedures for signing the contract on behalf of the buyer;

(4) The seller does not collect the deposit in accordance with the Subscription Agreement;

(5) Registration error of online signature filing information;

(6) The buyer's information (copy of ID card, etc.) is not kept perfectly.

Legal risks:

(1) Lack of effective delivery methods, and the real estate development enterprise cannot perform the notification obligation to the buyer in accordance with the provisions of laws and regulations or the contract; (Corresponding to the first situation listed above)

(2) The validity of the Contract for the Sale and Purchase of Commercial Housing is defective; (corresponding to the second and third cases listed above)

No right to act, in accordance with the relevant provisions of the "Contract Law" and its judicial interpretation, it is generally believed that the "Commercial Housing Sales Contract" is in a state of pending validity at this time, and there are certain defects in its validity. It is suggested that in case of this kind of situation, it is necessary to take the form of written letter to urge the buyer to sign the "commercial housing sales contract" within the time limit, and to provide procedural remedy for the behavior signed by others. However, if the buyer does not cooperate, the litigation procedure can only be started again.

(3) No "deposit" payment shall apply the "deposit penalty" to claim compensation for breach of contract; (corresponding to the fourth case listed above)

For example, in a commercial housing sales contract dispute case, although there is a clear agreement in the Subscription Agreement signed by both parties, the buyer shall pay a deposit of 50000 yuan, and sign a written Commercial Housing Sales Contract with the seller according to the time notified by the seller and pay the purchase price, otherwise the seller has the right to unilaterally terminate the Subscription Agreement and the deposit of 50000 yuan will not be refunded. In this case, the buyer paid a total of 300000 yuan for the house purchase, and the receipt issued by the seller was the "down payment for the house purchase", which did not specify or show that there was a deposit of 50000 yuan. Due to financial problems, the buyer failed to pay the house purchase price in full in accordance with the "Subscription Agreement" and signed a written "Commercial Housing Sales Contract" with the seller. The seller sued the people's court and demanded that the "Subscription Agreement" signed between the two parties be rescinded, and the deposit of 50000 yuan should not be refunded in accordance with the deposit penalty. The people's Court of Licheng District of Jinan City held that the seller's claim lacked the effective evidence support of "collecting deposit", and made relevant explanations during the trial. In view of this, after communicating with the real estate development enterprise and obtaining its consent, it withdrew the litigation claim of "applying deposit penalty to pay liquidated damages.

(4) Obstacles related to registration and correction of online signature filing; (Corresponding to the fifth situation above)

The online sign filing information is manually entered, and it is inevitable that the entered information is incorrect sometimes. In the context of the relevant regulations of Jinan City, except for "registration is indeed wrong", in other cases, the online signature filing can only be revoked based on valid judicial ruling documents under litigation or arbitration procedures. Through litigation or arbitration proceedings, it is bound to incur judicial costs (litigation fees, arbitration fees, etc. calculated on the basis of the total price of the house agreed in the contract for the sale of commercial housing). However, what is wrong with registration requires repeated communication and demonstration with the competent government department, and provide corresponding evidence to confirm it, which is judged by the competent government department from the perspective of evidence and facts.

(5) the lack of identity information proof materials, the exercise of claims to determine the other party's subject qualification caused by trouble and inconvenience. (corresponding to the sixth case above)

For example, in a private lending dispute case, the borrower only stated the passport number in the debit note, and there was no relevant ID card information, but the court filed a case to determine the defendant's subject qualification, the defendant's ID card information, household registration information shall prevail, only the passport number cannot be filed. In the case that the court has not filed a case (that is, there is no notice of acceptance of the case), the entry and exit administration organ generally does not allow lawyers to inquire about the specific registration information corresponding to the passport number, thus falling into a dead circle in which the identity information of the defendant cannot be determined.

In another commercial housing sales contract dispute, because the buyer did not retain a copy of the buyer's ID card at the time of sale, and the buyer was a foreign household registration, and he did not apply for a temporary residence permit in Jinan. Although he had an ID card number, he could not file a case due to the lack of a copy of the ID card., Can only go to the police station where the residence is located to obtain the household registration certificate letter. Originally, a copy of the ID card can be filed, because the lack of the copy increases the unnecessary cost and time cost of traveling in different places.

4. Legal risks related to the obligation to inform special house types

The special conditions of commercial housing may be manifested in various aspects, the most common ones are the influence of sunshine, the lack of local floor height, whether it is close to the special instrument equipment room, etc., as well as the influence of viaducts, roads and high-voltage lines in the external environment.

In judicial practice, the Supreme People's Court has a tendency to believe that the notification and reminder of the "special apartment type" should be the due obligation of the real estate development enterprise. If the real estate development enterprise fails to fully inform the "special apartment type" when selling the "special apartment type", it should The buyer is liable for damages. Regarding the amount of compensation, it can be considered that the real estate development enterprise should be notified but not notified, the transaction costs that cause the buyer to overspend or the portion of the loss caused to the buyer are determined.

What is "special" is not clearly defined in laws and regulations, and is usually mastered by judicial practice. However, the author believes that "special" should not be expanded, because there is no clear provision in laws and regulations, which also leads to the reverse application of "special" by buyers in practice, which increases the responsibility and burden of real estate development enterprises.

According to the text of the "Commercial Housing Sales Contract", various real estate development companies have continuously revised and improved the contract terms in the process of commercial housing sales, and most of them have formed relatively fixed and complete contract terms. It is recommended that when selling "special apartment type" houses, the designer and construction must make detailed disclosure to the seller to ensure that the sales staff understand and master the special apartment type, and fully prompt and inform the buyers during sales, and write special circumstances into the supplementary agreement of the "Commercial Housing Sales Contract" or make a separate written notification reminder for the "Special Delivery Standard" clause when necessary, and require the buyer to sign the "Commercial Housing Sales Contract" at the same time, so as to avoid the relevant risks of real estate development enterprises when the house is delivered.

The legal risk and prevention of the unclear or wrong content of the contract for the sale of 3. commercial housing.

1, the provisions of the relevant legal risks in the case of unclear expression.

Problems in practice:

(1) The agreement on liability for breach of contract for overdue accreditation is ambiguous.

If the presale contract of a real estate development project stipulates that "the seller shall bear the property management expenses of the house from the 25th month after the delivery of the house to the actual processing of the real estate ownership certificate". Disputes arise between the two parties of the contract: in the process of handling the certificate of ownership of real estate, starting from distinguishing the relevant obligations of the seller and the buyer, the procedure of handling the certificate can be divided into two stages. The first stage is that the seller submits the materials needed for handling the certificate of ownership of real estate to the housing registration department and completes the initial registration (commonly known as large certificate), the second stage is to realize the ownership registration of the purchased house (commonly known as small certificate) after the buyer fulfills the obligations of relevant residential public maintenance funds and deed tax payment and submits other materials according to the requirements of the housing registration department. Through the above-mentioned division of the certification stage, it is not difficult to see that when the real estate development enterprise fulfills the various materials that should be submitted by it and realizes the initial registration of the house, the time for the buyer to apply for the small certificate is not controlled by the real estate development enterprise. Therefore, the "actual processing of real estate ownership certificate" seller and buyer from their own interests, the emergence of different understanding, resulting in the two sides of the responsibility for breach of contract to bear the node dispute.

(2) The agreement of "water and electricity meet the conditions of use" at the time of delivery is not clear.

If article 14 of the "commercial housing sales contract" of a real estate development project stipulates that "water and electricity shall meet the use conditions from the date of actual delivery of the house", in fact, when the house is delivered to the buyer, the residential area cannot be connected to the municipal 10KV official power supply due to the reason of planning the municipal power supply pipe network outside the red line (according to relevant regulations, the laying cost of the pipe network shall be jointly borne by the real estate development project and the government along the pipe network), therefore, the power supply of the residential area is still the temporary power supply during the construction of the project, and until the house is delivered to the buyer for two years, the residential area will be connected to the municipal 10KV official power supply to realize the municipal power supply. The buyer filed a first-instance lawsuit with the people's Court of Lixia District of Jinan City on the grounds that the electricity consumption of the house was overdue to meet the conditions for use, requiring the real estate development enterprise to bear the liability for breach of contract of overdue power supply for a period of two years (the standard agreed in the "Commercial Housing Sales Contract" is 20 yuan/day).

During the trial of the case, the main dispute between the two parties lies in how to understand the "conditions for use" stipulated in the "Commercial Housing Sales Contract": The real estate development company advocates that "conditions for use" is not for access to "municipal domestic electricity", even if construction Electricity does not hinder the normal use of electricity after the buyer moves into the house, and meets the standard of "conditions for use. In addition, the buyer has been paying the electricity bill according to the standard of municipal domestic electricity consumption. The difference between the electricity bill for construction and municipal domestic electricity consumption has been paid to the power supply company by the real estate development enterprise, which has not increased the burden of electricity consumption for the buyer. The real estate development enterprise shall not bear the liability for breach of contract of overdue power supply.

The court held that the "conditions for use" here should be interpreted as having official municipal electricity, for the following reasons: 1. The use of temporary power in residential areas does not meet the requirements of relevant administrative regulations and departmental rules. Article 24 of the "Regulations on Power Supply and Use" of the State Council Order No. 666 implemented on September 1, 1996 stipulates that the power facilities in newly-built communities can only be put into use after passing the inspection of power supply enterprises. The first and second paragraphs of Article 12 of the "Power Supply Business Rules" issued and implemented by the Ministry of Electric Power Industry Order No. 8 on October 8, 1996 stipulate: "For infrastructure sites, farmland water conservancy, municipal construction and other non-permanent electricity, Temporary power supply can be supplied. Except with the permission of the power supply enterprise, the temporary power supply period shall not exceed six months. If the extension or permanent formal power use procedures are not completed within the time limit, the power supply enterprise shall terminate the power supply. Users who use temporary power sources shall not transfer power to other users, nor shall they transfer power to other users, and power supply enterprises shall not accept their changes in power consumption. If it is necessary to change to formal electricity, it should be handled according to the newly installed electricity." 2. Temporary power supply and formal power supply there are some differences in technical parameters, compared with the formal power supply, the temporary power supply has insufficient power capacity, voltage instability, poor power reliability and other issues. The use of temporary power in residential areas is not enough to protect the normal life of residents. 3. According to the provisions of Article 41 of the the People's Republic of China Contract Law, if there are more than two interpretations of the standard clause, an interpretation that is not conducive to the party providing the standard clause shall be made. 4. The delivery conditions of the house involved in the case are agreed as "the completion and acceptance of the commercial housing monomer", which is not the comprehensive acceptance record certificate required by the real estate development department. Therefore, the agreement on public infrastructure in the contract should be strictly interpreted. The court finally ordered the real estate development enterprise to bear the liability for overdue power supply breach of contract.

2, the terms of the content of the agreement is wrong related to the relevant legal risks.

Under the relationship of commercial housing sales contract, the most important obligation of real estate development enterprises is to deliver to the buyer the houses that meet the requirements of laws and regulations and the standards stipulated in the commercial housing sales contract. Therefore, the provisions of the "housing delivery standard" in the commercial housing sales contract are particularly important, It is a direct reference basis to measure whether the real estate development enterprise fully and properly performs its obligations.

The agreement error referred to here refers to the fact that the relevant standards for housing delivery do not conform to the agreement of the Commercial Housing Sales Contract due to design changes or failure to construct according to the drawings. Instead, it refers to the fact that the contents of the relevant delivery standards for housing filled in at the time of signing the Commercial Housing Sales Contract do not conform to the design drawings. Generally speaking, the contents of the contract are filled in incorrectly!

As a buyer, in the commercial housing presale stage, the buyer's understanding of the basic situation of the commercial housing comes from the relevant information provided by the real estate development enterprise in the "Commercial Housing Sales Contract. Therefore, in the main terms related to the use function of the house, even if the real estate development enterprise has evidence to prove that the contract agreement is inconsistent with the design drawings, and it is not caused by the later design change or failure to carry out the construction according to the drawing, there is still the risk that the house may bear the legal responsibility and adverse consequences of the house not being delivered according to the commercial housing sales contract.

Other relevant legal risks and precautions of 4. commercial housing sales contracts.
 

1. If the purchase price is paid by mortgage loan, and the real estate development enterprise bears the stage joint and several guarantee liability to the loan bank, it should handle the pre-mortgage registration of the subject house, otherwise there is a greater risk.

The "Commercial Housing Sales Contract" is signed and filed under the name of the buyer. Before the real estate registration certificate is completed, the buyer's ownership registration status of the house is "contract filing". The Notice of the Supreme People's Court, the Ministry of Land and Resources and the Ministry of Construction on Several Issues Concerning Regulating the Enforcement of the People's Court and the Assistance of the Land, Resources and Real Estate Management Departments stipulates that the people's court may pre-seal up the houses purchased by the person subject to execution that have gone through the registration and filing procedures for commercial housing presale contracts, and at the same time stipulate that the effect of "pre-seal up" is equivalent, "Pre-seizure" was changed to "formal seizure". However, the relevant laws, regulations and judicial interpretations have no clear provisions on whether the people's court can directly auction the houses that have not been formally sealed up and in the state of pre seizure as the property of the buyers.

However, in the current judicial practice, there is no lack of cases in which the house in the pre-sealed state is auctioned as the property of the buyer. For example, the purchase price of the house is paid by mortgage loan, and the real estate development enterprise still bears the phased joint guarantee liability to the loan bank for the mortgage loan of the buyer before the (pre) mortgage registration. During the period when the real estate development enterprise undertakes the periodical joint guarantee liability, the house is auctioned, and the buyer does not continue to repay the mortgage loan, which will bring serious economic losses to the real estate development enterprise. That is, after the house has been auctioned by the executive court, the subject of the cancellation of the "Commercial Housing Sales Contract" no longer exists (due to the auction ruling, the real right of the house is changed to the auction buyer), compensation can only be recovered from the buyer as a general claim, and is often difficult to achieve.

In view of the above, it is recommended that real estate development companies pre-mortgage registration of the "Commercial Housing Sales Contract" that pays for housing by way of loans. On the one hand, the enforcement court considers the setting of pre-mortgage registration before auctioning the house. Generally, the loan bank should be notified as an interested right holder, which can avoid the risk of the house being auctioned without the loan bank and the real estate development company knowing; on the other hand, it can be clearly stipulated in the loan guarantee agreement that the period of phased joint and several guarantee liability will end on the date when the pre-mortgage registration is completed, that is, after the pre-mortgage registration is completed, the joint and several guarantee liability will no longer be borne, which will greatly shorten the period during which the real estate development enterprise assumes phased joint and several guarantee liability and avoid related risks.

2. The legal risk that the use specified in the construction project planning permit (business office, apartment) is inconsistent with the use specified in the commercial housing presale permit (residential).

In practice, due to various reasons, there have been several cases where the purpose specified in the construction project planning license is inconsistent with the purpose specified in the commercial housing presale license. The real estate registration department handles the ownership registration and generally determines the purpose specified in the construction project planning license. If the real estate development enterprise fills in the text of the "Commercial Housing Sales Contract" according to the purpose specified in the presale license, it will cause the contract to be inconsistent with the purpose specified in the real estate registration certificate, and prone to disputes. Therefore, it is recommended that real estate development enterprises strictly review the various development and construction procedures obtained, and give priority to the signing of the "Commercial Housing Sales Contract" in accordance with the planning permission to avoid related risks.

3, the net sign filing contract printing date and the buyer's actual signing date there is a risk of difference.

The time of signing the contract, on the one hand, determines the time when the contract takes effect, on the other hand, it is often the time node for calculating the buyer's obligation to pay. Therefore, in order to avoid disputes, it is suggested to unify the printing date of the online signing and filing contract and the actual signing date of the buyer as far as possible.

4. The notification obligation in the signing and performance of the contract shall be effectively performed.

Taking the case of liability for breach of contract of overdue power supply as an example, the buyer claims that the liquidated damages calculated on a daily basis from the date of delivery of the house to the date when the power supply is connected to the municipal pipe network (official electricity). The court held that after the buyer moved into the house, because the electricity can be used normally, the buyer did not know whether the "power supply" met the conditions for use, the real estate development enterprise did not provide corresponding evidence to prove that it informed the buyer, or the buyer should know and approve, so the court did not support the real estate development enterprise's defense of limitation of action.

To sum up, real estate development enterprises may have a lot of risks in the process of signing and performing commercial housing sales contracts, and there is no end to risk prevention. However, if we take prudent and meticulous legal measures and strict process management in the process of signing and performing the contract, we can resolve and reduce most of the risks in advance and in the process, so as to avoid the risk of paying a large price after the event and even the risk of difficult relief after the event, so as to continuously promote the standardization of the market behavior and market order of commercial housing transactions.