The promised loan has not been fulfilled.
The intermediary is responsible for the loss.
Wang wanted to buy Liu's real estate, so he asked the intermediary company about buying a house. Wang, worried about personal credit problems, consulted the intermediary company for many times whether he could apply for a house loan, and delivered the relevant information of personal credit information to the intermediary company.
After verification, the intermediary company clearly informed Wang that he could successfully handle the relevant house purchase loan. After signing the house sales contract and intermediary service contract with Liu and the intermediary company, Wang agreed that the intermediary company would handle the loan on his behalf. After the signing of the agreement, Wang paid the agency fee 15000 yuan and the seller a house purchase deposit of 50000 yuan. When Wang was ready to pay the down payment to Liu and apply for a bank loan, the intermediary company told him that the bank would not lend because of its credit problems.
The loan is not in place, the house sales contract cannot be fulfilled, and the deposit paid by Wang cannot be refunded. In the event of a dispute among the three parties, the negotiation failed. Wang sued the intermediary company to the People's Court of Donghai County, Lianyungang City, demanding the return of the intermediary fee and deposit of 65,000 yuan.
After the trial, the court held that the intermediary company was liable for Wang's losses according to law, and Wang also had a certain duty of examination and attention to whether he could apply for a bank loan to buy a house. Therefore, it was decided that the intermediary company should be liable for compensation according to 80% of the total losses, and the rest should be borne by Wang. The intermediary company refused to accept the appeal and appealed to Lianyungang Intermediate People's Court. After mediation, the intermediary company compensated Wang 50,500 yuan.
After the court, the judge said that whether the bank loan for the house purchase in this case can be successfully handled is an important consideration for whether Wang agrees to conclude a contract. The intermediary company did not provide enough evidence to prove that it had fulfilled its obligation of active investigation, nor did it explicitly suggest the risk that it might not be able to apply for a house purchase loan. It only tells Wang that he can apply for a house purchase loan after verification. This negligent behavior led to the wrong intention of the client Wang. Therefore, the intermediary company should be liable for the loss of the deposit and commission paid by Wang. Because Wang also has a certain obligation to examine and pay attention to whether he can apply for a house purchase bank loan, according to the principle of fairness and good faith, the court of first instance ruled that the intermediary company should bear 80% responsibility and Wang should bear 20% responsibility.
The house was sealed up and it was difficult to transfer ownership.
Seller's default commission payable
On 20 17, Li bought a house in Zhang, with intermediary company A as the intermediary, and the three parties signed a house intermediary sales contract. It is stipulated in the contract that after the contract is concluded, if the contract cannot be performed due to the responsibility of either party, the breaching party shall pay the agency fee agreed in the contract to the agency company. On the day of signing the contract, the buyer and the seller signed commission confirmation letters with the intermediary company respectively.
During the performance of the contract, because the house involved in the transaction was sealed up by the court, it was impossible to handle the house transfer procedures. Therefore, an intermediary company sued Li and Zhang to the people's court of Haizhou District, Lianyungang City, asking them to pay the commission.
After hearing the case, the court held that Zhang and Li respectively signed a commission confirmation letter with the intermediary company A, agreeing to pay the commission to the intermediary company A in the month of house transfer. At present, because Zhang's house was sealed up by the court, the contract cannot be fulfilled. According to the relevant provisions of the housing agency sales contract signed by the three parties, the defaulting party pays the agency fee agreed in the contract to the agency company, so Zhang should bear the civil liability of paying all the commissions. Therefore, according to the law, Zhang was sentenced to pay the commission to the intermediary company.
The judge reminded that this case also involves the validity of the contract signed by the judicial organ or the administrative organ to seal up the house according to law. According to Article 38 of the Urban Real Estate Management Law, if a judicial organ or an administrative organ decides to seal up or restrict the real estate rights in other forms according to law, it shall not be transferred. This clause is not mandatory and does not affect the validity of the house transfer contract, which is still valid. Therefore, both buyers and sellers and intermediary companies should pay attention to the examination of whether the ownership of the house is clear and whether there is a seizure, so as to avoid the adverse consequences of the contract being valid but unable to go through the formalities of property right change.
The intermediary service is defective.
Support agency fee refund.
Gao signed an exclusive house sales entrustment agreement with an intermediary company, and then the intermediary company facilitated Gao to sign a house sales agreement with Cheng. During the performance of the agreement, because the house has been signed online under Gao's name, it cannot be renamed in the original way, and disputes arise between the parties. Cheng filed a lawsuit in the People's Court of Haizhou District, Lianyungang City, and Gao also filed a counterclaim. After trial, the court decided to cancel the house sales contract between the two parties, and Gao returned Cheng's deposit of 30,000 yuan.
Later, Gao appealed to the court, demanding that the intermediary company return the agency fee and compensate it for the losses such as the case acceptance fee and lawyer's fee in the lawsuit. After trial, the court ruled that the intermediary company should return Gao's living expenses 1 1300 yuan within ten days from the effective date of this judgment; Reject Gao's other claims.
The judge introduced after the court that in the intermediary activities of house sales, the intermediary company, as a professional intermediary, should bear the duty of care that meets the requirements of the professional subject for the entrusted matters and intermediary services, and pay attention to reviewing and verifying the important information related to the transaction, such as the property rights of the house and whether the house has the conditions for buying and selling. In this case, the intermediary company should promptly verify whether the house involved has the conditions for renaming. Even if the intermediary company verifies that the house involved has not been signed online and has the conditions for renaming before signing the exclusive house sales entrustment agreement with Gao, it should verify the situation again before prompting the buyers and sellers to sign the house sales contract involved. Due to the failure to verify clearly, the contract for the sale of the house involved can not be fulfilled objectively, and the intermediary service provided by the intermediary company has major defects, so the intermediary fee collected shall be returned. However, the intermediary company did not intentionally conceal important facts related to the conclusion of the contract or provide false information, and should not be liable for other losses of the intermediary company.
After the intermediary looks at the house, skip the order.
The buyer shall bear the liquidated damages.
Chang signed a confirmation letter with the intermediary company, stipulating that the intermediary company will take care of the house. If the house is successfully purchased, it will pay 1% of the house transaction price as a commission. In addition, the two parties also agreed that if the entrusting party has accepted the services of the entrusted party after the first house inspection, and the transaction is reached directly or privately through a third party other than the entrusted party, it shall pay a penalty of 3% of the total real estate appraisal price.
After the signing of the agreement, after the staff of the intermediary company showed him the house involved, Chang reached a deal with the owner of the house involved through other intermediaries. The intermediary company will then often sue the Haizhou District People's Court in Lianyungang City, demanding that it pay liquidated damages.
After the trial, the court held that Chang had reached an agreement with an intermediary company to skip the private transaction of the other party and should pay liquidated damages to the trustee. Based on various factors, the court often compensates the intermediary company for liquidated damages of 6,543,800 yuan.
After that, both parties refused to accept the first-instance judgment and appealed to Lianyungang Intermediate People's Court. After hearing the case, the court of second instance held that the facts were clear and the applicable law was correct, so it rejected the appeal and upheld the original judgment.
The judge said that in this case, the prohibition of skipping orders in the house inspection confirmation signed by both parties was intended to prohibit the buyer from using the house information provided by the intermediary company, and the agreed content was binding on both parties. It is a breach of contract to reach a sales agreement with the landlord privately through other intermediaries after regular house inspection, and fail to provide evidence to prove that its housing information is not from the intermediary. Because the commission agreement between the two parties did not clearly distinguish the brokerage fee from the cost of handling house transaction loans, transfer procedures and other follow-up matters, the court made the above judgment by comprehensively considering the services actually provided by the intermediary company, the house price, the commission agreement and other factors.
Therefore, the key to measure whether buyers jump orders is whether buyers use the housing information and opportunities provided by intermediary companies to reach a deal. If the same housing information is released by several intermediary companies, and the buyer obtains the housing information through proper channels, he has the right to choose the intermediary company with low quotation and good service among many intermediary companies, which is not a breach of contract.
Relevant provisions of contract law
Article 97 If the contract has not been performed after dissolution, the performance shall be terminated; If it has been performed, according to the performance and the nature of the contract, the parties may demand restitution and take other remedial measures, and have the right to demand compensation for losses.
Article 424 An intermediary contract is a contract in which the intermediary reports to the client the opportunity to conclude a contract or provides media services for concluding a contract, and the client pays the remuneration.
Article 425 The trustee-trader has the obligation to truthfully report to the trustor the matters related to the conclusion of the contract.
Where a broker intentionally conceals important facts related to the conclusion of a contract or provides false information, which harms the interests of the client, he shall not demand a reminder and shall be liable for damages.
Related to the urban real estate management law
Article 38 The following real estates may not be transferred: (1) The land use right obtained by transfer does not meet the conditions stipulated in Article 39 of this Law; (two) the judicial organs and administrative organs have ruled or decided to seal up or restrict the real estate rights in other forms according to law; (three) to recover the land use right according to law; (four) without the written consent of other people, * * * owns real estate; (five) the ownership is controversial; (6) Failing to register according to law and obtaining the ownership certificate; (seven) other circumstances in which the transfer is prohibited by laws and administrative regulations.
Lao Hu's comments
In recent years, China's second-hand housing market has become increasingly active, and the proportion of transaction volume in the real estate market has been rising. However, in the process of buying and selling second-hand houses, the contradictions between related parties are also increasing, which has become a potential factor affecting social harmony and stability. Some houses have quality defects, or the houses sold are sealed up or detained by the relevant departments and cannot be transferred or transferred; Some of them can't get a house loan because of the buyer's credit problem. They are willing to buy a house but unable to buy it. Some buyers and sellers are very clever, using small things to get rid of the intermediary and "jump orders"; In addition, due to the carelessness of the intermediary company in the process of intermediary service, it failed to fulfill the obligation of careful control, which eventually led to the failure of the buyer and the seller to make a deal and caused economic losses to the client.
All these reflect that the second-hand housing market still needs further regulation. On the one hand, buyers and sellers of second-hand houses should strengthen the concept of honesty and rule of law, truthfully explain the quality of houses in the process of buying and selling, and do not exaggerate, conceal, collude or violate the agreement. On the other hand, second-hand housing agents should firmly establish the concept that reputation is more important than Mount Tai, further improve their professional ethics and business ability, master the laws, policies and knowledge related to the sale of second-hand housing, be diligent and conscientious about the entrusted matters of the clients, and earnestly safeguard the legitimate rights and interests of the clients. At the same time, the relevant administrative law enforcement departments should follow the principle of "whoever enforces the law will popularize the law", strengthen the training of legal knowledge and the spirit of the rule of law for housing intermediaries, attach importance to publicizing the laws and regulations on the sale of second-hand houses to the general public, and let buyers and sellers consciously use the rule of law to solve problems and disputes, so as to promote the healthy and orderly development of the second-hand housing market.