How to avoid risks in advance and guard against different types of "risk houses"? Yuan Pan, director of the Economic Department of China Youth Daily, and Hu Gang, a lawyer of Beijing Chaoyang Law Firm, discussed today's topic.
Let's take a look at several things that consumers have experienced about buying a house. The first thing is that Mr. Ma bought a school district house at a price higher than the average price in the same region 16%, and found that it was not within the scope of dicing; The second thing is that Ms. Wang bought a house of more than 3 million, and the seller's account could not be moved out; The third thing is that Mr. Han knew that there was a mortgage when he bought a house, thinking that it would be no problem for the seller to go through the prepayment procedures according to the contract. As a result, the house was sealed up and could not be traded ... These unexpected risks made consumers always feel nervous about the second-hand housing transaction.
Voice of the Economy: What are the main aspects and characteristics of disputes in the process of buying and selling second-hand houses?
Yuan Pan: First of all, regarding contracts, because we are building a contractual society, contracts are the most important basis for our rights protection. But in fact, the provisions of the format contract are still relatively shallow, or they are all beneficial to businesses. Because it is a model of the format contract provided by the merchant, if you want to make a special agreement with him, the cost will be high for consumers. First of all, he will not answer, especially at the stage of high housing prices. In addition, everyone's negotiating ability is different, so it is very important to refine this clause and protect their rights to the greatest extent.
At present, there are too many problems in the contract format. For example, in the three cases mentioned above, I think the provisions of the contract are not clear. If they were clear, consumers' rights protection would not encounter so many obstacles. If it is in the contract, such as the school district, have the two sides agreed that this is the school district? If not, what kind of responsibility should they bear? The format contract is made by the merchant, but the relevant competent department will issue a model text.
In my opinion, it is very limited to rely on businesses to consciously safeguard consumers' rights and interests, because they are unwilling to add more responsibilities and obligations to themselves. Therefore, government departments should play a role. It is this model text that requires you to have several things, such as this kind of house with specific needs, such as the school district, whether it is a second-hand house or a first-hand house. If you promise to have a school, but you don't, then what is the responsibility of the developer and the platform, and the contract must be detailed. Now, because there is no refinement, it has brought great confusion to consumers in the process of safeguarding rights. Even if other goods can't make such detailed words for the time being, the house should take the lead, because it is the most important property of residents, because it is worth hundreds of thousands, millions and tens of millions. In the face of such a big change in property rights, how to protect the rights and interests of consumers, the relevant departments should make great achievements in the contract. With this bill, we can have a sufficient basis in the process of safeguarding rights.
Second, in the second-hand housing transaction, the intermediary actually played a very big platform role. Why should we buy a house through an intermediary instead of asking ourselves? It is because the intermediary has a guarantee function. If something goes wrong, the platform should also play a role. Therefore, it is very important to clarify the responsibility of the intermediary, and he will bear joint and several liability. For example, after the second-hand house was sold, as a consumer, a contract was signed through an intermediary at that time, and both parties recognized it as a school district house, but in the end it was not. Since the intermediary bears the responsibility of ensuring the authenticity of the transaction information, it should bear the responsibility. Therefore, it is necessary to grasp these two links, one is the contract and the other is the third-party transaction, that is, the intermediary platform, in order to finally reduce the cost of consumer rights protection.
Let's sort out the cases The first one is about the school district. Mr. Ma wants to buy a school district for his children to go to school. The salesman of the intermediary company found a key primary school in Xicheng District of Beijing from the Internet. Teacher Ma read the past enrollment brochure of this primary school and bought this house at a price higher than the average price in the same area 16%. But as a result, when he asked, it was a tragedy. This is a scrawled house, which does not belong to the admissions brochure. So he sued the court and asked the intermediary company to compensate for the difference and refund the service fee.
After trial, the court held that the house sales contract signed by both parties did not stipulate that the house involved was any content of the school district. Therefore, the loss of price difference advocated by Mr. Ma cannot be supported.
Voice of the Economy: If both parties decide to buy or sell the school district house, should it be clearly stipulated in some supplementary clauses of this contract that buying this house means buying the school district house, and the purpose of signing the contract is to buy the school district house? Must there be such a supplementary clause?
Hu Gang: Yes. Indeed, as Director Yuan Pan specifically mentioned, the house has become one of the most important assets of residents, so consumers must be cautious if they want to buy a house. There are many ways and measures to show caution. For example, first of all, we should choose the model text related to housing sales issued by the local housing authority, which can generally be called the model text of housing sales contract. After the second model text is signed in kind, it is often necessary to sign a supplementary agreement or the specific agreement between the two parties will involve the last paragraph of the model text. In this specific agreement or a separate supplementary agreement, it is necessary to directly write the special needs of consumers, such as the requirement of school district housing, into the contract. If you want other special purposes, just write it directly, and don't simply listen to the unilateral verbal commitment of the housing agency or the owner.
Combing the second case, in May last year, Ms. Wang bought a house of Ms. Dong located in Xuanwumen West Street, Xicheng District, Beijing, with a total price of 3.05 million yuan. According to the contract, Ms. Dong should complete the formalities of moving out all the original accounts within 10 days from the date of house transfer, otherwise she will pay a penalty of 10% of the total house price and continue to perform the obligation of moving out all the accounts. As a result, after the transfer of the house, Ms. Dong's stepson's account has not moved out, and Ms. Wang sued the court. As a result, the court ruled that Ms. Dong paid part of the liquidated damages.
Voice of the Economy: In this case, the court ruled that the defendant was liable for breach of contract, but according to Ms. Wang's actual loss, it ruled that Ms. Dong, the seller, only paid part of the liquidated damages. She did violate the contract. Some people have no money to go to the account, why did she only pay a part of the liquidated damages?
Hu Gang: Personally, I think it has something to do with the contents of the contracts signed in those years. If the contract is just an agreement, such as the original owner, it will be over if one person moves out. If this person doesn't move out, how much penalty will he pay? In this case, the woman who signed the contract has moved out, but the buyer doesn't know that there may be another member of the house in this account. So she didn't think of the risk, which was beyond the contract. In this case, no contract is actually a real risk for the buyer. Based on the principle of fairness, the court ruled that the seller should bear part of the liquidated damages. Therefore, the buyer should pay special attention to the situation of this house and this multi-family house, because he actually has some ownership disputes. In this uncertain situation, I'm afraid there are many things to consider when agreeing on the contract.
Voice of the Economy: It is understood that this case has another feature. There is a saying that because this account does not actually affect the move-in of buyers in the house, buyers should not expect too much from the statement that the account has not moved out. Is this analysis reasonable?
Hu Gang: That makes sense, because strictly speaking, buying this house doesn't mean you have to move your registered permanent residence to this house. In fact, according to the central government's policy requirements on new urbanization, megacities like Beijing, Shanghai and Shenzhen have clear quantitative requirements for the control of registered population. So, just because you become a homeowner doesn't mean you can leave your hukou, so there is a difference between the two sides. But why did the court make such a judgment in this case? Because considering the actual situation, the buyer does have some real losses, and the seller should know that there are others besides the seller in the account of the house, but she concealed it and did not tell it, and there were some dishonest behaviors. Therefore, the court ordered it to pay a certain amount of liquidated damages to make up for the losses of consumers, and it was also a punishment for the seller's dishonest behavior.
Voice of the Economy: What matters should Ms. Yuan Pan remind consumers in this case, and what matters should be paid special attention to in the process of buying and selling second-hand houses?
Yuan Pan: In fact, we should be more considerate in the refinement of contracts, and don't bury hidden dangers, otherwise we will pay a high cost in the process of safeguarding rights.
Beijing Xicheng Court held a briefing, at which ten types of dangerous houses were summarized. In addition to the general sales contract, it also involves some other legal issues such as housing property rights, mortgage loans, principal-agent and intermediary activities, as well as policy issues such as household registration transfer and school district housing for the purpose of enjoying educational resources.
(The above answers were published on 20 17-02-07. Please refer to the actual purchase policy. )
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