On March 15 Consumer Rights Protection Day, Sina Second-hand House invited Mr. Jin Shuangquan, China brand barrister, vice president of China Real Estate Marketing Association and famous real estate lawyer, to answer legal questions in second-hand house transactions for netizens.
The following is an interview record:
Moderator: Hello, Sina users, welcome to Sina Live Room, and watch the special program 3. 15 of Sina Second-hand Housing.
It's March 15 again, and it's the peak season of the property market. Therefore, this year's special program of Sina Leju Second-hand House 3. 15 is "Happy Valley Man". Be careful about buying and selling second-hand houses. Today, in the studio, we invited Mr. Jin Shuangquan, a brand barrister from China, vice president of China Real Estate Marketing Association and a famous real estate lawyer, to answer legal questions about second-hand housing transactions for the majority of netizens.
Hello, lawyer Jin!
Jin Shuangquan: Hello!
What are the common second-hand housing disputes?
Moderator: 1. We know that the second-hand housing market in Beijing has been very hot in the past year, including recently. I believe you have also come into contact with many cases about second-hand housing transactions. Can you talk about what disputes have arisen in the second-hand housing transaction this year?
Jin Shuangquan: There are mainly the following types:
(1) Disputes caused by price fluctuations due to changes in real estate policies.
With the introduction of favorable policies, house prices may rise. At this time, there are many cases of seller's breach of contract. The seller usually claims that the contract is invalid without the consent of the spouse or other owners. With the introduction of the purchase restriction policy, house prices may fall. At this time, there are many cases of buyer's breach of contract, and the buyer usually asks to cancel the contract and return the house on the grounds that there are loopholes in the contract.
(2) Disputes caused by serial transactions.
For families who want to improve their demand, they need to sell their houses and use the money to buy new houses. When there are problems in the process of selling their house, such as the buyer fails to pay the house price on time, they will delay the seller in the process of buying. However, because there is no necessary causal relationship between selling a house and buying a house, it is difficult to claim compensation for the breach of contract.
(3)*** Disputes caused by real estate transfer.
The divorced party sells the property in order to transfer it, or the heir party sells the property in order to possess more property. Other obligees claim that the contract is invalid on the grounds of malicious collusion.
(4) Disputes arising from restricted transactions of special houses.
Such as military housing, central delivery housing, affordable housing, small property housing and other special types of housing, can not be listed or listed restrictions caused disputes.
What contract terms should I pay attention to when signing a contract?
Moderator: We found that many of the cases you mentioned were disputes caused by unclear contracts. Can you tell us what terms the buyer should pay attention to when signing the contract?
Jin Shuangquan: Choose your favorite house. After the two parties reach a preliminary agreement on the transaction content, they will sign a house sale contract as the most important step in the house sale. Here, buyers should be reminded of the following points:
(1) Verify the property owner and property status, and choose who to deal with.
Including: the signatory should be the property owner or the legally authorized agent of the property owner, and the authenticity of the power of attorney needs to be verified. The spouse of the property owner needs to issue a written certificate of consent to the sale. It is also necessary to verify whether the house is mortgaged, sealed up, and registered with opposition. , and whether the third party has the right of residence and whether the lessee waives the preemptive right. Whether other heirs agree to sell the inherited house. Also, if you find that the other person is a very difficult person during the conversation, you would rather not buy it than trade with him.
(2) Know your credit status.
Is there any qualification to buy a house in a restricted city? And their credit status in the bank, whether they meet the loan conditions and whether they can get the required amount.
(3) The contents stipulated in the sales contract shall be comprehensive and operable.
First of all, we should choose a professional real estate agent with perfect contract and the ability to take responsibility. Secondly, it is necessary to carefully study the contracts provided by real estate agents, because the turnover of agents is frequent, and not every agent is familiar with the process. The rights and obligations of both parties should be clearly defined in the contract, as well as the payment method, amount, time limit, and how to deal with the unapproved loan or the approved amount that fails to meet the expectations. What is most beneficial to the buyer is fund custody. It is also necessary to clarify the delivery period, release period, transfer period, account relocation period, and whether the furniture is within the price range. It is also necessary to stipulate a clear liability for breach of contract and so on. That is, when there is a problem, you can find the contract basis in the contract, so as to clarify the responsibility.
What should I do if I encounter a real estate dispute?
Moderator: You just talked about a lot of disputes, so I want to ask you, what should buyers do when they encounter these disputes?
Jin Shuangquan: Second-hand housing transactions are complicated and last for a long time, which usually takes three months or even longer. It requires the mutual cooperation of both parties and the intermediary for many times. Disputes are inevitable. When there is a dispute, the buyer needs to do two things. First, we should actively negotiate with each other through intermediaries to find out the causes of disputes and eliminate misunderstandings for disputes arising from misunderstandings; Don't intensify contradictions, try to ensure that the transaction can go smoothly. In case of disputes due to policy reasons, we can negotiate with the seller to change or terminate the contract on the basis of mutual understanding and accommodation. The second is to preserve evidence. Of course, if the seller breaks the contract, the buyer need not worry. Keep the notification letter or negotiation record of both parties, and actively use the law to safeguard their own rights and interests. Consult a professional real estate lawyer in time, make a good response plan, collect evidence, and make full preparations for litigation to prevent further losses. It is not the best way to complain to the real estate department or the public security department. It is difficult for the above-mentioned departments to intervene in civil disputes, but it will delay time.
Which houses cannot be traded?
Moderator: There is also a problem that buyers are very concerned about, that is, there are various types of houses in Beijing. What conditions need to be met to allow second-hand housing transactions, and what kind of houses are not qualified for second-hand housing transactions?
Jin Shuangquan: There are many kinds of houses in Beijing. Common ones are:
(1) commercial housing: as long as the developer has obtained the pre-sale permit for commercial housing. Even if there is no real estate license, such a house can also conduct second-hand housing transactions.
(2) Housing reform: listing and trading are generally allowed. However, if the original property unit is a central unit, such a house is a central delivery: the transaction of central delivery needs to meet the following conditions: ① the original property unit has established housing files; (2) Has obtained the house property right certificate; (3) there is a situation of exceeding the standard, but it has exceeded the standard in the original property unit; (4) Housing in special departments that do not involve national security and confidentiality, but in offices, teaching and research areas of party and government organs, scientific research departments, universities and other units, with the consent of the original property unit, some units only agree to trade within the scope of employees of the property unit.
(3) Military production rooms: Military production rooms are generally not allowed to be listed and traded unless the army approves the listing and trading.
(4) Public houses with the right to use: Public houses with only the right to use are divided into self-managed public houses and directly managed public houses. Individuals of such houses only have the right to use and cannot be listed and traded.
(5) Affordable housing. Such a house can be listed and traded in five years.
(6) Resettlement house: There may be two kinds of property rights: ① There is no formal state examination and approval procedures and no property right certificate, commonly known as "small property right"; (2) There are formal procedures for examination and approval of land use, such as renovation of dilapidated houses, renovation of green belts, renovation of old villages, etc., and property rights are "managed according to affordable housing", also known as second-class affordable housing, which can be traded.
(7) Low-rent housing: This kind of housing only has the right to use and cannot be listed and traded.
(eight) small property houses: refers to houses built on farmers' collective land without paying land transfer fees. The ownership of such houses is not protected by law and cannot be listed and traded.
(9) Self-occupied commercial housing: Beijing Municipal Commission of Housing and Urban-Rural Development launched on 20 13. This kind of housing shall not be listed within five years after purchase, and will be listed after five years.
Which houses can't apply for mortgage loans?
Moderator: Most people who buy houses in Beijing are buying houses by loans. Just now we talked about what kind of house can't be traded. Can you tell us what kind of house can't be mortgaged?
Jin Shuangquan: It must be clear that some houses cannot be loaned. So be sure to understand clearly before buying a house. Houses that cannot be loaned are: (1) those without real estate license; (2) Houses on collective land; (3) Very old houses that cannot be loaned for more than 30 years, and some even belong to dangerous houses; (4) Houses in the old city reconstruction; The local housing management department has closed the case and cannot apply for mortgage registration; (5) Houses mortgaged with land use rights; (six) houses that have been sealed up and frozen according to law.
Can the sale of second-hand houses bypass brokers?
Moderator: From a legal point of view, what do you think of the role of second-hand housing brokers in second-hand housing transactions? Do you advise buyers to bypass brokers in housing transactions? As a professional lawyer, do you have any suggestions for buyers when choosing a brokerage firm?
Jin Shuangquan: Real estate agents and brokers have made great contributions to the country's second-hand housing market. Because the information does not match, the biggest role of the real estate agent is to talk about the people who want to buy a house and those who want to sell a house, and sign a sales contract together. Without them, the house cannot complete the transaction. So I think it is most important for real estate agents to provide housing information. His basic duties include: providing housing information, assisting in signing contracts, providing consultation and handling of various procedures in the transaction process, and coordinating communication.
I don't advise buyers and sellers to bypass brokers. Accepting the housing information provided by the real estate agent and bypassing him violates the principle of good faith. Without the coordination of brokers, it is difficult for both parties to complete the signing. (1) It is the greatest embodiment of value for brokers to provide real estate information for buyers. Since the service should be paid; (2) Non-professionals of both buyers and sellers are not familiar with the workflow of loan banks, transfer departments and tax departments and the whole purchase process, which will lead to a long processing time; The lack of basic trust between the two sides will lead to big contradictions because of some small differences, and if there is a middleman to mediate, the contradictions can be solved.
(3) Choosing a brokerage firm is the same as choosing a lawyer. To choose a larger company, the business knowledge training of the large company is relatively complete and the contract version is relatively perfect. Also pay attention to the choice of brokers, and choose brokers with relatively rich work experience to provide services.
How to put an end to false housing?
Moderator: What do you think of the responsibility of real estate agents? At present, the network false housing is prevalent. As a real estate agent, how can I publish in good faith?
Jin Shuangquan: People can't live without trust. Honesty management is the basic requirement of real estate intermediary industry, and it is also the most precious intangible asset. False housing information, complaints from buyers, and damaged reputation of intermediary enterprises. It is suggested that real estate agents insist on promoting real estate certification and resolutely resist fake housing! As an intermediary company, we should win customers with professional and high-quality services, put an end to falsehood, avoid the trouble and energy loss caused by false housing to customers in need, and also avoid the negative impact of false housing on the image of the real estate brokerage industry!
Moderator: Before the program of 3 15, netizens raised their own problems in second-hand transactions with Mr. Jin through Sina's official second-hand house WeChat. Let's ask Mr. Jin to help netizens answer it:
What should I do if I buy a second-hand house and find someone renting it?
Moderator: Netizen A: I just bought a second-hand house and found that the house is for rent, and the lease contract has not expired. What should I do?
Jin Shuangquan: You should ask the seller to issue a statement that the lessee waives the preemptive right and verify the authenticity with the lessee. If the lessee asks for a purchase, you should ask the lessee to issue a written certificate, then terminate the contract and ask the seller to bear the liability for breach of contract. If the lessee gives up, you should consider whether it is acceptable. After buying a house, can the lessee continue to rent it until the lease contract expires? If you accept it, you can continue to perform the sales contract. If it is not acceptable, the seller shall coordinate with the lessee to terminate the lease contract before continuing to perform it. If the seller can't coordinate, you can terminate the contract on the grounds of the seller's breach of contract. If there is no agreement in the contract, the contract can also be terminated on the grounds that the purpose of the contract cannot be achieved.
How to protect rights when you encounter one room and two sales?
Moderator: Netizen B: I found that the house I bought was "one room and two sales". How can I defend my rights? How can second-hand housing transactions avoid one room and two sales?
Jin Shuangquan: (1) Keep the evidence well and file a lawsuit in time; (2) investigate whether the house has been transferred to others and apply for sealing up the house; (3) Determine the litigation plan and goal, whether to continue to want the house or terminate the contract, and ask the seller to bear the liability for breach of contract. (1) If the transfer has been made, see if there is malicious collusion between the new buyers and sellers. If there is evidence, you can ask for confirmation that the business between them is invalid. If there is no malicious collusion, and the sales contract between them is valid, it will be difficult to obtain the house, and the seller can only be required to bear the liability for breach of contract. (2) If there is no transfer, we should strive for the actual legal possession of the house, and the person who occupies the house first is usually given priority protection. (3) If there is no transfer and the house cannot be legally occupied, the court will usually make a fair and reasonable determination by comprehensively considering the actual payment amount and order of each buyer, whether the online signing has been handled, and the order in which the contract was established. So it depends. If you can't get the house, you must change the requirements and ask the seller to bear the responsibility for breach of contract.
(2) In order to avoid the situation of selling one house and two houses, you can go to the housing management registration department where the house is located after signing the contract, and at the same time go through the online filing procedures of the house sales contract as soon as possible, commonly known as "online signing". It can effectively prevent the original owner from selling the house to others during the transaction.
Can I check out after signing the sales contract?
Moderator: Netizen C: I just signed a sales contract, and now I regret not buying it. Can I check out? What about breach of contract?
Jin Shuangquan: It is best to negotiate with the seller. If negotiation fails, legal reasons are needed. For legal reasons, such as Article 52 of the Contract Law, a contract is invalid under any of the following circumstances: (1) one party concludes a contract by fraud or coercion, which harms the interests of the state; (2) Malicious collusion that harms the interests of the state, the collective or a third party; (3) Covering up illegal purposes in a legal form; (4) damaging the public interest; (5) Violating the mandatory provisions of laws and administrative regulations. If the contract is invalid, you can of course check out. If it is not invalid, it depends on whether the seller has breached the contract. If there is a serious breach of contract, if the contract stipulates that the buyer has the right to terminate, he may exercise the right to terminate.
If there is no reason to cancel the contract and return the house, it may constitute a breach of contract, and it shall bear the liability for breach of contract in accordance with the contract.
What are the risks of yin-yang contract?
Moderator: Netizen D: What are the risks of the Yin-Yang contract for the sale of second-hand houses to buyers and sellers?
Jin Shuangquan: (1) Buyer's risk
(1) may invalidate the price terms. Article 52 of China's Contract Law stipulates that a contract that "maliciously colludes and harms the interests of the state, the collective or the third party" is invalid. Article 56 of the Contract Law stipulates that an invalid contract is not legally binding from the beginning. If part of the contract is invalid and does not affect the validity of other parts, the other parts are still valid. Yin-Yang contract belongs to the malicious collusion of the parties to harm the national interests, and the false price clause will be deemed invalid.
(2) it will bring trouble to the operation of your own house in the future, and you will have to bear the risk of high expenses when reselling it. Because the price recorded by the government is lower than the actual transaction price, if the buyer sells the house again in the future, the buyer may face the risk of bearing high personal income tax and other taxes.
(3) The seller shall not perform. When the online signing and loan between the two parties are handled at a lower price, the seller can't cooperate at any time, resulting in the inability to continue to perform the contract. If it is handled at the actual price again, it is necessary to re-sign the loan online, which may lead to the buyer's delay in payment and constitute a breach of contract.
(4) Risks of administrative punishment and criminal investigation. Once the tax evasion is detected by the tax authorities, it will be subject to administrative penalties such as overdue taxes and fines. If the amount reaches the standard, criminal responsibility can be investigated together with the seller.
(2) Risks of the Seller
(1) has laid a hidden danger for its own sales contract. Because the house price in the Yin-Yang contract is lower than the actual price, it is a false tax return, which harms the national interests. If the buyer reneges, it will cause losses to the seller when the house price falls, and there is also the risk that the house price cannot be fully recovered.
(2) If the buyer fails to pay the house price beyond the filing price on schedule, or maliciously requests to close the transaction at the filing price, the seller will be in trouble, and it will increase the cost of time and money through negotiation, dunning and prosecution.
(3) There are risks of administrative punishment and criminal investigation.
In short, the yin-yang contract of second-hand houses is risky for both buyers and sellers. Therefore, please give more consideration to friends who intend to sign the yin-yang contract of second-hand houses, and don't violate the principle of good faith and take high risks because of greed.
Moderator: I think the enthusiasm of netizens here is very high, but due to the limited time, today's question is here first. We also hope that this program can help netizens buy houses. 3 15, together with Mr. Jin, let you buy a house without worry! Thank you, Mr. Kim. This concludes today's program. Thank you!