So how do you determine that the buyer and the seller have breached the contract? The lawyer reminded that the contract is still the main one. At the moment when the real estate regulation and control policies are escalating, buyers and sellers should try their best to have a clear agreement in the contract on how to deal with the changes in national policies.
Case 1: The transaction cost increases and the buyer wants to terminate the contract.
After the implementation of the Five Rules of Beijing, Xiao Zhang, who had been planning for two months, was in trouble. It is understood that before the New Deal landed, Xiao Zhang signed a house purchase contract with the owner Mr. Li. Xiao Zhang bought a small two-bedroom apartment under Mr. Li's name for 6.5438+0.8 million yuan and paid a deposit of 6.5438+0.8 million yuan. However, due to various reasons, Xiao Zhang and Mr. Li failed to complete the online signing before the New Deal landed. After the implementation of the New Deal, according to the regulation that the second-hand house pays 20% personal income tax, the transaction of this house needs to pay nearly 200,000 yuan personal income tax. According to the supplementary agreement signed by them, it is agreed that all taxes and fees involved in this transaction shall be borne by Party B, namely Xiao Zhang.
Faced with the sudden increase of nearly 200,000 yuan, Xiao Zhang felt that the cost performance was not enough to impress him to buy a house here, so Xiao Zhang communicated with the owner, Mr. Li, hoping to cancel the previous purchase agreement and return the deposit of 6,543,800 yuan he had paid. In this regard, the owner, Mr. Li, believes that since Xiao Zhang repented and asked to cancel the contract, according to the provisions in the supplementary terms of the contract, this is a fundamental breach of contract by Party B. Not only can he not refund the deposit of 65,438+10,000 yuan, Xiao Zhang should also pay him liquidated damages.
Xiao Zhang believes that the news says that the tax increase on second-hand housing transactions should be borne by the seller. If this nearly 200,000 personal income tax is borne by Mr. Li, he does not want to terminate the contract. But in fact, it was precisely because Mr. Li didn't want to bear the tax that he asked to cancel the contract. Mr. Li is also at fault, so we can't simply ask him for compensation. We should return the deposit to him.
The lawyer said:
The liquidated damages shall be implemented in accordance with the contract. Both parties can negotiate.
Yu Zhihong, a lawyer of Beijing Jincheng Tongda Law Firm, believes that in the House Purchase Contract and Supplementary Agreement signed by Xiao Zhang and Mr. Li, the responsibilities and obligations of both parties are clearly defined, and Article 3 of the Supplementary Agreement mentions that both parties agree that all taxes and fees involved in this transaction shall be borne by Party B and paid directly to the competent authorities. Moreover, when Xiao Zhang and Mr. Li reached a sales agreement, the national five articles had been promulgated and the local rules had not yet been promulgated. The contract was signed by the buyer and the seller with luck knowing that Beijing or relevant policies had been issued, so Xiao Zhang actually predicted the risk of tax increase.
According to Paragraph 3 of Article 4 of the Supplementary Agreement to this Contract, if Party B has any of the following circumstances, it will constitute a fundamental breach of contract, including "refusing to buy a house". Moreover, it is stipulated in this clause that Party B shall pay a penalty equivalent to 20% of the total house price to Party A within 15 days from the date of breach of contract, and all the money paid by Party B to Party A shall be used to offset the penalty, and the overpayment shall be insufficient. According to this clause, Party A, namely Mr. Li, does not need to refund the deposit of 6,543,800 yuan to Xiao Zhang, and even has the right to claim the remaining liquidated damages. However, due to policy factors, Xiao negotiated with Mr. Li in a friendly way to reduce the expenditure of liquidated damages.
Case 2: The seller who is not qualified for transfer requests to terminate the contract.
Two years ago, Mr. Cheng bought a villa in Shunyi District. At that time, the property ownership certificate of the suite had not been finally processed, so Mr. Cheng and the owner, Mr. Fang, reached an agreement to deliver the property to Mr. Cheng first, and when the property ownership certificate was processed, both parties were ready to handle the transfer procedures. At that time, the price of the house was about 12000 yuan/square meter.
After staying for two years, Mr. Cheng's heart has been hanging, because I heard that this kind of transaction law without real estate license is not protected. In March, Mr. Cheng got news from the developer that the project real estate license will be approved at the end of May, and finally the dust can be settled. However, the Beijing version of "Five Articles" has increased his uncertainty, and he is not qualified to buy a house.
Mr. Cheng is a Beijinger and has been single. At present, he lives with his parents in a set of three curies in the urban area, and his name is on the real estate license. According to the previous purchase restriction policy, he can have two houses under his name. However, according to the latest national five regulations, he can no longer buy a second suite.
Mr. Cheng hopes that the owner, Mr. Fang, can wait for him for a period of time, and then transfer the ownership after he is qualified to buy a house. However, Mr. Fang believes that this sales contract can no longer be fulfilled. It is Mr. Cheng's fault that leads him to hope to terminate the contract with Mr. Cheng, and he is willing to refund the house payment that Mr. Cheng has paid and not pursue Mr. Cheng's liability for compensation. However, Mr. Cheng doesn't think so. When they signed the contract, the property could not be traded. Mr. Cheng chose to pay most of Mr. Fang's expenses first, and then transfer the ownership after the real estate license came down. Now he is not qualified to buy a house. Why can't the master wait for him?
It is understood that the average price of the community where the house is located has risen to 24,000 yuan/square meter.
The lawyer said:
The seller has the right to demand the termination of the contract, and the buyer is not liable for breach of contract.
Lawyer Yu Zhihong believes that although the state does not encourage the transaction of second-hand houses without real estate license, the contract and supplementary agreement in this case were originally signed under the condition that both parties knew that the conditions were not met, and they were fully fulfilled with conditions. The additional conditions are: after the real estate license is completed, the seller has the right to transfer, and can go through the formalities of purchase and transfer; The buyer can handle the transfer formalities when handling the transfer formalities. Before the above conditions are met, the house can be delivered and paid, but the transfer formalities have not been completed, so this contract can be fully performed, which is the treatment of future rights and interests by both parties, so it has legal benefits.
If before signing the contract, the national policy has stipulated the qualification for purchasing a house, and the buyer knows that the national policy was lucky enough to sign the contract, resulting in the final failure to transfer the ownership, then the responsibility should be the buyer, and the national policy does not constitute force majeure. If the seller asks the buyer to bear the responsibility for breach of contract, the buyer will be very passive. However, if you are qualified before signing the contract, but you are unqualified due to changes in national policies during the performance of the contract, it is force majeure, and both the buyer and the seller can claim the automatic termination of the contract without being liable for breach of contract.
remind
The variable insurance policy during the regulation period shall be clearly stipulated in the contract.
Lawyer Yu Zhihong reminded that in view of the constant adjustment and change of national real estate control policies, in second-hand housing transactions, it is best for buyers and sellers to have a clear agreement on how to deal with the changes of national policies in the contract, and read the contract terms carefully, so as not to ignore the details just because it is a standard contract.
Take the sample contract for the sale of Beijing stock houses by Beijing Municipal Construction Committee as an example. Article 9 It is clearly stipulated that new taxes and fees need to be paid for policy reasons during the performance of the contract. In the supplementary agreement of a well-known intermediary company, there is also a specific agreement on the amount to be paid when this agreement cannot be fulfilled due to the purchase restriction policy. When signing the contract, the buyer and the seller can't choose to ignore all these terms, and should fill them in carefully after negotiation.
(The above answers were published on 20 15-06- 15. Please refer to the current actual purchase policy. )
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