I. Introduction
Live and work in peace.
Ever since the poet Du Fu expressed the feeling that "a vast expanse of buildings makes the world happy", how many people in China have been struggling for this long-awaited dream ... Take Shanghai as an example: 1979, the per capita housing area was only 4.2m2, and the population with housing difficulties reached 800,000, accounting for 28% of the total number of urban families. Until 1987, there were still 16 thousand Shanghai residents living in an environment with per capita less than two square meters. Since the reform and opening up, China's urban and rural housing construction has entered a period of rapid development. From 1949 to 1978, the average annual housing area in cities and towns is only180,000 m2, which exceeds the urban 1980 and 475 million m2. By the end of the 20th century, the market mechanism has begun to play an important role in the allocation of housing resources, and basically formed a housing property right structure with individual property rights as the main body. From the perspective of new housing, the proportion of individuals buying commercial housing is close to 94%. Now, having a comfortable and beautiful "comfort zone" has become an urgent and realistic desire of modern people.
Commercial housing sales are divided into existing house sales and faster house sales. Auction sale refers to the pre-sale of commercial housing, which refers to the behavior of real estate development and operation enterprises (hereinafter referred to as "sellers") selling houses under construction to buyers in advance, and the buyers pay the deposit or house price. As the development of China's real estate market is lagging behind, the market system is not perfect, and the real estate legal system is not perfect, for the sale of existing homes, the pre-sale of commercial housing makes the buyer only obtain the expectation right of commercial housing when signing the contract, but not the actual ownership. Only when the developer delivers the house to the buyer after completion can the buyer enjoy the real ownership and the right to possess, use and benefit the house. Therefore, the risk borne by the buyer of the pre-sale contract of commercial housing is greater than that of the existing house sales contract. In recent years, with the increase in the purchase of commercial housing, there are more and more complaints from consumers about false advertisements, "shrinking" of commercial housing area and serious quality risks in the process of commercial housing sales, which has become one of the hot spots of consumer complaints. In order to protect the legitimate rights and interests of property buyers, China promulgated the Law of People's Republic of China (PRC) on Urban Real Estate Management, the Measures for the Management of Urban Commercial Housing Pre-sale, the Measures for the Quality Management of Construction Projects and the Law of People's Republic of China (PRC) Contract, and on March 24th, 2003, the Supreme People's Court passed the Interpretation on Several Issues Concerning the Applicable Law in the Trial of Commercial Housing Sales Contract Disputes. This judicial interpretation embodies the principle of party autonomy, agreement is superior to statutory and punitive damages. The buyer can exercise the right to cancel and dissolve the sales contract according to law, require the seller to return the paid house purchase price and interest, and bear the liability for breach of contract, repair and compensation not exceeding twice the paid house purchase price, which highlights the protection of the legitimate rights and interests of the majority of buyers. Below, the author tries to talk about the protection of the legitimate rights and interests of the buyer in the dispute case of commercial housing pre-sale contract from the following aspects.
Two, "five certificates" and the validity of the pre-sale contract of commercial housing
Pre-sale contract is different from entrustment contract. The so-called "construction contract" refers to a contract in which the parties agree that one party entrusts the other party to build a house and bear the expenses. The nature of construction contract includes "sales contract theory", "finished product supply theory", "contract theory", "mixed contract theory of contract and sales" and "mixed contract theory of contract, commission and sales". However, the pre-sale contract is similar to the general sales contract in terms of payment, delivery of the subject matter, guarantee of rights, guarantee of defects and liability for breach of contract, and belongs to the sales contract in nature. Pre-sale of commercial housing can speed up real estate financing and invigorate the real estate market. However, in the pre-sale of houses, there are many uncertain factors in the subject matter of the transaction, which makes the risks faced by the pre-buyers far greater than those of ordinary existing houses. For example, after some developers receive the house payment from buyers in advance, due to various reasons, the built projects cannot continue or even stop working, causing huge losses to buyers. Sometimes individual developers can't complete or hand over the house on time for various reasons, which leads to the failure of property buyers to stay or rent on time. Sometimes, after the property buyers pay the down payment, individual developers will use various excuses to raise the later payment, and even ask for a new down payment, which makes the property buyers feel at a loss. So this form is risky and speculative. In order to protect the legitimate rights and interests of buyers, China has strictly restricted the conditions and procedures for the pre-sale of commercial housing. Article 44 of the People's Republic of China (PRC) Real Estate Management Law stipulates that the pre-sale of commercial housing shall meet the following conditions: (1) All the land use right transfer fees have been paid and the right to use certificate has been obtained; (2) Holding a construction project planning permit; (three) according to the pre-sale of commercial housing, the funds invested in development and construction have reached more than 25% of the total investment in engineering construction, and the construction progress and completion delivery date have been determined. (four) to the real estate management department of the people's government at or above the county level for pre-sale registration, and obtain the pre-sale permit certificate of commercial housing. It can be seen that real estate developers should have "five certificates" for the pre-sale of commercial housing: state-owned land use certificate, construction land planning permit, construction project planning permit, construction project construction permit and commercial housing pre-sale permit.
When signing the pre-sale contract of commercial housing, the purchaser should check whether the developer has all the above certificates and approval documents. Whether there is a complete document indicating whether the sale of commercial housing belongs to the category of legal transactions. Therefore, relevant laws, regulations and judicial interpretations stipulate that "the pre-sale contract of commercial housing concluded between the seller and the buyer shall be deemed invalid without obtaining the pre-sale permit of commercial housing". However, in practice, there are many complicated problems in the pre-sale of commercial housing. Although the real estate market is relatively standardized after the promulgation and implementation of the Urban Real Estate Management Law, the procedures for developers to pre-sell houses are still not perfect. Failing to obtain the pre-sale permit, land use permit, planning permit or paying the land transfer fee. The above situation is caused not only by the parties themselves, but also by the irregular behavior of government departments and poor regulation of the real estate market. If exceptions are not considered, it is not conducive to stabilizing the trading order, protecting the buyer to achieve the purpose of the contract, and it is also contrary to the basic principles of the contract law. Therefore, such problems should be dealt with according to the facts and cannot be easily identified as invalid contracts. As long as the relevant certificates have been obtained at the time of prosecution, the pre-sale conditions are met or approved by the relevant government departments, the validity of the sales contract will not be affected. After the Interpretation passed in March 2003 stipulated that "if the seller enters into a pre-sale contract with the buyer without obtaining the pre-sale permit of commercial housing, it shall be deemed invalid", it also stipulated a proviso: "However, if the pre-sale permit of commercial housing is obtained before the prosecution, it may be deemed valid." At the same time, Article 8 also stipulates that if the seller intentionally conceals the fact that he has not obtained the certificate of pre-sale permit of commercial housing or provides a false certificate of pre-sale permit of commercial housing, resulting in the invalidation or dissolution of the contract, the buyer may request the return of the paid house purchase price and interest, and compensate for the losses, and may request the seller to bear the compensation liability not exceeding twice the paid house purchase price. This provision not only helps to stabilize the trading order, but also helps the buyer to achieve the purpose of the contract, thus protecting the legitimate rights and interests of the buyer.
Third, the promise and contractual obligations of "uncompleted residential flats"
Now, some people call the "promise" of pre-sale advertisements made by real estate developers for commercial housing to be developed and operated as "uncompleted residential flats" promise. These advertisements or promotional materials are illustrated, which are like a paradise on earth for the houses sold and their surrounding environment, and are quite attractive to property buyers. However, in order to sell their commercial housing, some developers will use exaggerated advertising content to attract or even mislead consumers. For example, XX Garden is known as "elegant environment and fresh air", but even the green space construction there is not perfect; Xx community said that its location is only ten minutes away from a station, but in fact it is only the imaginary straight-line distance on the map, without considering the actual route at all; The promised car garage has become a bicycle garage; What nearby schools, hospitals, post offices, etc. How many years of long-term planning are needed ... Many buyers are shouting when they actually check in, but they feel that what is done is done and they are helpless. Nowadays, people are calling for honesty more and more. How to solve the problems of developers' arbitrary promises, arbitrary violations and cheating buyers according to law, so as to effectively protect the legitimate rights and interests of buyers? In this regard, we must first find out what legal effect the pre-sale advertisement has. According to the contract law, commercial advertisements, including commercial housing pre-sale advertisements, are only invitations to offer or invitations to offer, that is, they hope that the buyer will make an offer to buy their real estate, not a promise to the buyer. Therefore, it does not constitute an offer and cannot be used as an obligation of a sales contract. Property buyers can only consult the advertising content in detail, read the house design drawings and see its architectural pattern. Before buying a house, decide whether to buy it or not. If you decide to buy, when signing a written contract, you should try to re-agree the promise of "uncompleted residential flats" as the terms of the contract to make it binding; However, it is not under any circumstances that pre-sale advertisements are not legally binding. If the developer makes a specific commitment to the facilities, decoration standards, supporting facilities, greening and community public welfare of the public parts of the houses he sells in the advertisements and publicity materials outside the contract, it shall be regarded as an integral part of the contract or an obligation attached to the contract. If developers violate them, they should bear the responsibility for breach of contract. The judicial interpretation adopted by the Supreme People's Court also has clear provisions. First, vague and uncertain explanations and promises made in sales advertisements and promotional materials are invitations to offer, not contractual obligations. Property buyers need to renegotiate with developers, sign a standardized and detailed pre-sale contract for commercial housing, and make it a contract clause. For the contract style, please refer to the model text of Commercial Housing Sales Contract issued by the Ministry of Construction and the State Administration for Industry and Commerce. Second, developers' specific commitments to houses and related facilities within the scope of commercial housing development planning, such as facilities and decoration standards in public areas, supporting facilities in residential areas, greening and community public welfare construction, have a significant impact on the conclusion of commercial housing sales contracts and the determination of housing prices, and should be regarded as an offer, as an integral part of the contract or as an obligation attached to the contract. Even if there is no explanation and commitment in the commercial housing sales contract, it should be regarded as the content of the contract. If a party violates it, it shall bear the liability for breach of contract. In addition, many developers' sales advertisements or pictures are in inconspicuous corners, and there is a line with the same meaning: "The final interpretation right of this advertisement belongs to the developer, and the relevant data is subject to the final approval document of the government". According to the law, this format of goodwill notice cannot exempt the developer from the responsibility of good faith. As long as the content of the picture meets the offer conditions stipulated in the Interpretation, the developer should still be liable for breach of contract if it violates it. These regulations provide a strong judicial guarantee for protecting the rights and interests of property buyers and establishing a credible society.
Fourth, the Consumer Protection Law and the application of punitive damages.
China promulgated the Law of People's Republic of China (PRC) on the Protection of Consumers' Rights and Interests on June1993+1October 3/KLOC-0. Article 49: "If an operator commits fraud in providing goods or services, it shall increase the compensation for the losses it has suffered according to the requirements of consumers, and the amount of compensation shall be twice the price of the goods purchased by consumers or the cost of receiving services." The so-called "double indemnity". Whether the Consumer Protection Law is applicable to commercial housing sales cases is controversial. The viewpoint of applying consumer law holds that commercial housing itself is a typical commodity, and there is no basis for not applying consumer law, which can fully protect the legitimate rights and interests of buyers; Another view is that the real estate market was just starting when China's Consumer Law was formulated, and real estate such as houses was not taken into account at that time. Moreover, due to the large value of commercial housing, there may be double indemnity problem in the application of consumer law, which is not only unbearable for developers, but also difficult to define fraud. The judicial interpretation passed in 2003 stipulated the punitive liability in Articles 8 and 9, which provided a clear legal basis for disputes over commercial housing sales contracts and protected the rights and interests of buyers to the maximum extent. Its purpose is to investigate the civil liability beyond the scope of liability for breach of contract for the transaction behavior that the buyer cannot obtain the house because of the seller's malicious breach of contract and fraud in the process of buying and selling commercial housing. In this regard, Articles 8 and 9 of the Interpretation stipulate five situations: after the conclusion of the commercial housing sales contract, the seller mortgages the house to a third party without informing the buyer (Article 8); After the commercial housing sales contract is concluded, the seller sells the house to a third party; Deliberately concealing the failure to obtain the pre-sale permit of commercial housing or providing false pre-sale permit of commercial housing; Deliberately concealing the fact that the house sold has been mortgaged; Deliberately concealing the fact that the house sold has been sold to a third party or that the house has been relocated and compensated (Article 9). Under any of the above five circumstances, the purpose of the commercial housing sales contract cannot be achieved, or the contract is invalid, cancelled or dissolved, the buyer may request the return of the paid house purchase price and interest to compensate for the losses, or request the seller to bear the compensation liability of not more than twice the paid house purchase price.
Verb (abbreviation of verb) measurement regulations and "shrinking" of commercial housing area
The shortage of commercial housing area has always been a hot spot of consumer complaints. Therefore, the Ministry of Construction has formulated the Rules for the Calculation of Commercial Housing Sales Area and the Allocation of Public Building Area, and the national quality and technical supervision and management department has also formulated the Measures for the Calculation of Commercial Housing Sales Area, which has made corresponding provisions on the calculation methods, calculation and deviation of building area, interior building area, public building area that should be allocated reasonably, and sales area. Newly promulgated Measures for the Administration of Commercial Housing Sales and Model Text of Commercial Housing Sales Contract.
It is stipulated that commercial housing can be priced according to the interior construction area or construction area. The construction area of commercial housing refers to the horizontal projection area of the external wall of the house with a height of 2.20m (including 2.20m). The interior construction area is composed of interior (unit) usable area, interior wall area and balcony construction area.
(1) Calculation range of total construction area: 1. Single-storey houses with permanent structure, regardless of the height, are calculated as one floor, and the construction area is calculated as the peripheral horizontal area above the toe of the external wall; Multi-storey residential buildings are calculated according to the total construction area of each floor. 2. The passage through the house, the hall in the house, regardless of its height, is calculated as one floor. 3. Stair, elevator shaft, elevator shaft, garbage chute and pipeline shaft are all calculated according to the natural floor of the house. 4. Closed balconies and overhanging corridors are calculated according to their peripheral horizontal projection area.
(2) Calculate the range of half the construction area: 1. The upper cover, unclosed overhead corridor, columnless corridor and eaves gallery connected with the house are calculated according to half of the horizontal projection area of the periphery of the enclosure structure. 2 Independent columns, single-row columns, porches, carports, sheds, platforms and other permanent buildings shall be calculated according to half of the horizontal projection area of their upper covers. 3. Unclosed balconies and overhanging corridors are calculated according to half of their horizontal projection area.
(3) Scope excluding construction area: 1. Components, fittings, cantilevers, semi-columns, pedals, steps, etc. Stick out from the wall of the house. 2. Semi-cylindrical sunshade. 3. The roof, terrace, garden and swimming pool of the house.
(4)* * * Shared construction area: 1. Elevator shaft, pipe shaft, stairwell, garbage chute, power distribution room, equipment room, public hall, corridor, basement, guard room on duty, * * * own house and management room serving the whole house are all regarded as * * *. 2. The partition wall between the suite (unit) and the public building space, half of the horizontal projection area of the external wall (including gables), is * * * construction area.
(5) * * * construction area that should not be shared: 1. Basements and semi-basements attached to civil air defense projects. 2. Fixed parking spaces or special garages are rented or sold. Now many real estate developers are making a fuss about the housing area, and it is often the case that the measured area is smaller than the housing area on the drawing. Due to the huge purchase amount, this will cause great losses to buyers. Therefore, when buying a house, the temporary total construction area of the house for sale should be clearly stated in the contract, including the interior area and the pool area, and it is clearly stipulated that "the payment shall be made according to the temporary measurement area of Party A at the time of pre-sale, subject to the actual measurement area recognized by the real estate bureau". And that error ratio between the measure area and the temporarily measured area and its treatment principle. If the contract is not stipulated or clearly stipulated, Article 14 of the Interpretation clearly stipulates the handling principle: (1) If the absolute value of the area error ratio is less than 3% (including 3%), it shall be settled according to the actual price agreed in the contract, and the buyer's request to terminate the contract shall not be supported. (2) If the absolute value of the area error ratio exceeds 3%, and the buyer requests to cancel the contract and return the paid house price and interest, it shall be supported; If the buyer agrees to continue to perform the contract, if the actual area of the house is larger than the area agreed in the contract, the house price with an area error ratio of less than 3% (including 3%) shall be made up by the buyer at the agreed price, and the house price with an area error ratio of more than 3% shall be borne by the seller, and the ownership shall belong to the buyer; If the actual area of the house is less than the area agreed in the contract, the part with the area error ratio within 3% (including 3%) and the interest shall be returned by the seller to the buyer, and the part with the area error ratio exceeding 3% shall be returned by the seller to the buyer twice.
The Interpretation defines the area error ratio as 3%, which is two percentage points higher than the 5% stipulated in the Interpretation of the Supreme People's Court on Several Issues Concerning the Trial of Real Estate Development and Management Cases (Proposed Draft), which not only enhances the contract awareness of the parties, but also highlights the protection of the interests of the disadvantaged groups who purchase houses.
Six, quality defects and judicial relief
The quality of commercial housing is related to the buyer's future living environment and even the safety of life and property. For ordinary people who are eager to live and work in peace and contentment, it would be a bolt from the blue if they gave all their money or even borrowed money to buy a house. The Construction Law of People's Republic of China (PRC) and related laws and regulations clearly stipulate the quality of construction projects. These include: the quality of survey, design and construction must meet the requirements of national safety standards for construction projects; Buildings must ensure the quality of foundation works and main structures within a reasonable service life. When the construction project is completed, there shall be no quality defects such as leakage and cracking on the roof and wall surface. Construction enterprises should repair the quality defects found; The construction project delivered for completion and acceptance must meet the quality standards of the construction project; Construction projects implement quality warranty system, etc. According to the regulations of the Ministry of Construction, the development enterprise must provide the Residential Quality Guarantee and the Residential Instruction Manual when delivering the newly-built commercial housing for sale to users. The contents of the "Residential Quality Guarantee" include: the quality grade, foundation and main structure inspected by the engineering quality supervision department promise to undertake the warranty within a reasonable service life; The unit that the user applies for repair, the time limit for reply and handling; Under normal use, the warranty content and minimum period of each component. Real estate development enterprises shall bear the warranty responsibility in accordance with the provisions of the "residential quality guarantee". The "residential quality guarantee" can be used as the supplementary content of the commercial housing sales contract, and is actually the insurance certificate of the commercial housing. The quality guarantee shall indicate the warranty content and warranty period of each component under normal use. The warranty period of the whole commercial housing project and its internal facilities is different. According to Article 40 of the Regulations on Quality Management of Construction Projects, the warranty period of commercial housing starts from the date of completion, acceptance and delivery. The specific time limit is as follows:
(a) the basic equipment engineering, foundation engineering and main structure engineering of the building are the reasonable service life of the project specified in the design documents; (2) 5 years for roofing waterproof works, toilets, rooms and external walls with waterproof and anti-leakage requirements; (3) The heating and cooling system consists of two heating periods and cooling periods; (four) electrical pipelines, water supply and drainage pipelines, equipment installation and decoration works, for 2 years; The warranty period of other projects shall be agreed by the employer and the contractor.
The contents of "Instructions for Use of Residential Buildings" include: the description of the structure and performance of residential buildings, the types, performance and standards of various components (components), as well as the precautions for use, decoration and decoration, the description of the reserved location of equipment and facilities and the precautions for installation; Door and window types, structural types, distributed loads, load-bearing walls, thermal insulation walls, waterproof layers, balcony parts and other matters needing attention. At the same time, it is pointed out that the developer does not assume warranty responsibility for quality problems caused by improper use and decoration by users.
According to the provisions of relevant laws, regulations and judicial interpretations: (1) If the main structure of the house cannot be delivered for use due to unqualified quality, or if the buyer thinks that the main structure is unqualified after delivery, he may apply to the project quality supervision unit for re-verification. After verification, the main structure is unqualified, and the buyer requests to terminate the contract and compensate for the losses, which shall be supported. (2) If the buyer requests to terminate the contract and compensate for the losses due to serious quality problems affecting the use function of the house and the normal living use, it shall be supported. (3) The house delivered for use has other quality problems, and the seller shall bear the maintenance responsibility within the warranty period; If the seller refuses to repair or delays the repair within a reasonable period of time, the buyer may repair by himself or entrust others to repair, and the repair expenses and other losses during the repair period shall be borne by the seller. However, the explanation of "seriously affecting the normal residential use scope" is too standardized, which is not conducive to operation and needs further clarification.
Seven. conclusion
The 16th National Congress of the Communist Party of China clearly put forward the goal of "building a well-off society in an all-round way". Buying a house has become the first major event in people's daily life. At the same time, the geographical location, floor, orientation, greening and surrounding environment of houses have become the new fashion pursued by modern families. However, the real estate industry, which contains huge business opportunities, also has pitfalls and crises because of system defects such as laws and regulations. In addition, the purchase process is complicated, and the buyer is always in a weak position in the legal relationship of pre-sale of commercial housing. The concept of "substantive justice" in economic law requires special legal protection for property buyers. This paper only clarifies some vague understandings from the above aspects to provide reminders for buyers, so as to plan ahead and prevent problems before they happen. However, because the pre-sale of commercial housing involves many complicated legal issues, special protection should be given from different aspects such as administrative management, contract law protection measures and property law protection measures. I hope to arouse more discussion and concern in academic circles, protect the legitimate rights and interests of buyers to the maximum extent, and reduce the legal risk of buyers purchasing commercial housing in advance!