(Author: Yu, this article is reproduced from WeChat official account "Lou", Phoenix Real Estate has been authorized)
20 19, which can be called the "year of delivery" of Hangzhou property market.
According to incomplete statistics, the annual delivery is expected to be 145, up by half compared with last year. From May to June alone, there were 14 sets in the eight districts of the city, and nearly 10,000 suites were delivered.
Every delivery season, major developers are "fidgeting" and prepare months in advance.
After all, for property buyers, millions of houses are definitely one of the biggest events in life. When looking forward to repossession, can you not be angry when you find something wrong with the house?
For some small quality defects, in the upward period of housing prices, buyers often choose the "big belly can accommodate" approach, and basically will not "tear their faces" through consultation.
For example, in the future coastal check-out incident (pricing mismatch before and after), few people actually checked out.
But if you really encounter quality problems, can you check out smoothly or even get compensation?
There are many reasons for returning a house, but it should be noted that unless the house itself has serious quality problems, it will affect the owner's residence. Otherwise, it is not easy to check out without the consent of the developer.
Even if there is a problem with the quality, it may not be returned.
For example, because the height of the house is not up to standard, Lao Li successfully checked out and got compensation; Xiao Wucan can only knock out his teeth and swallow blood. Why?
Today, the story of the floor tells you how to better safeguard your rights and interests through the analysis of these two cases.
Part 1
Case 1: Unable to check out.
On October 20 12, 165438 10, Xiao Wu bought a single-family villa with a height of 2.8m as agreed in the contract. On 20 15 10, Xiao Wu received a notice from the developer to hand over the house and successfully took over the house.
In June 5438+February of the same year, when Xiao Wu renovated the house, he found that the height of the third floor was 2.8m, but it was 500px lower than the design.
On March 20 17, Xiao Wu sued the court on the grounds that the height of the house delivered by the real estate company did not conform to the design drawings, which constituted a fundamental breach of contract, demanding: 1 to terminate the commercial housing sales contract; 2. Return the purchase price and compensate for the interest loss.
The court rejected Xiao Wu's claim on the grounds that the quality of the house involved could be repaired, and Xiao Wu had exercised the right of rescission for more than one year within the scheduled time limit.
Case 2: Check out smoothly
Lao Li is much luckier than Xiao Wu.
On October 20 12, 1 1 year 10, Lao Li bought a townhouse with a height of 3 meters as stipulated in the contract. 20 14, 1 June, Lao Li found that some houses on the third floor were less than 3 meters high and refused to accept the house.
20 14 12, Lao Li submitted a written refusal to the real estate company on the grounds that the height of the third floor of the house did not meet the 3 meters agreed in the contract.
Because the real estate company refused to return the house, Lao Li sued the court, demanding: 1 to terminate the commercial housing sales contract; 2. Refund the purchase price and compensate for the loss of interest on the purchase.
The court found that the third floor of the house did not reach the height of 3 meters agreed in the contract, and the height could not be rectified due to design problems. The real estate company has constituted a fundamental breach of contract and decided to terminate the commercial housing sales contract:
The real estate company will refund the purchase price to Lao Li and compensate the interest loss from the date of delivery to the date of refund according to the benchmark loan interest rate of the People's Bank of China for the same period.
the second part
The same height is not up to standard, why is the court's decision completely opposite?
Before answering this question, let's clarify two concepts. First: What kind of quality problems can be detected?
Article 148 of the Contract Law stipulates that the buyer may refuse to accept the subject matter or terminate the contract because the subject matter does not meet the quality requirements, which makes it impossible to achieve the purpose of the contract.
Article 13 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Sales Contracts stipulates that if the buyer requests to terminate the contract and compensate for the losses because the quality of the house seriously affects the normal living and use, it shall be supported.
There are quality problems in the houses delivered for use. During the warranty period, the seller shall bear the maintenance responsibility. ...
According to the above-mentioned laws and regulations, we believe that the return of houses must meet the following conditions: (1) The quality of houses does not meet the agreed standards; (2) quality problems seriously affect the use of residential buildings; (3) The quality problem cannot be repaired or the purpose of use cannot be achieved after repair.
The standards of "serious impact" and "failure to achieve the purpose of use" here are quite high in actual cases, and most of them need professional opinions from qualified appraisal institutions to identify them.
For example, landscaping is not as good as publicity; The quality of hardcover is flawed, which is not a serious quality problem that seriously affects the use of residential buildings and cannot be repaired. If you can't achieve the purpose of the contract, it is impossible to check out.
However, if the foundation settlement, house inclination, cracking and deformation of load-bearing columns, walls, beams and slabs exceed the safety limit, and cannot be repaired or still exceed the safety limit after one repair, you can return the house.
In the case, Xiao Wu is a single-family villa, which can be repaired after inspection and basically cannot be checked out; And Lao Li's townhouse can't be repaired, so he can check out.
the third part
But this is not enough to explain why Lao Li won the case and Xiao Wu was rejected.
Therefore, we must understand the second legal concept: the time limit for exercising the right of revocation.
The law gives the parties the right to terminate the contract when there are agreed or legal reasons. However, if one party does not exercise the right for a long time while obtaining the cancellation right, the contractual relationship between the two parties will always be in an uncertain state.
Therefore, from the perspective of transaction efficiency and transaction safety, Article 95 of the Contract Law limits the time limit for exercising the right of cancellation:
"The time limit for exercising the right to terminate is stipulated by law or agreed by the parties. If the parties fail to exercise the right at the expiration of the time limit, the right will be extinguished. If the law does not stipulate or the parties have not agreed on the time limit for exercising the cancellation right, and the other party fails to exercise it within a reasonable time after being urged by the other party, the right will be extinguished. "
As the above provisions do not specify the specific time limit, Article 15 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts (hereinafter referred to as Judicial Interpretation of Commercial Housing Sales Contracts) stipulates that "according to the provisions of Article 94 of the Contract Law, if the seller delays the delivery of the house or the buyer delays the payment of the house purchase price, and fails to perform it within a reasonable period of three months after being urged, one party requests to terminate the contract.
If there is no law or agreement between the parties, the reasonable time limit for exercising the right of cancellation is three months after the other party's demand. If the other party fails to ask for a notice, the cancellation right shall be exercised within one year from the date of the cancellation right; If it is not exercised within the time limit, the right of revocation shall be extinguished. "
That is to say, the longest time for one party to request to terminate the commercial housing sales contract after discovering the other party's breach of contract is 1 year. And according to the law, the period of 65,438+0 years is the scheduled period. If the obligee fails to exercise his rights within the time limit prescribed by law, his rights shall be excluded and shall not be suspended, interrupted or extended for any reason.
In practice, there is still controversy about how to apply Article 15 in the judicial interpretation of commercial housing sales contracts, that is, whether 1 period is applicable to all situations of revocation rights that seriously affect the use of houses, such as housing quality problems, or only to cases of delayed delivery of houses/delayed payment of house purchase money?
Refer to Article 1 of the Guiding Opinions of Guangdong Higher People's Court on Several Issues Concerning the Trial of Disputes over Commercial Housing Sales Contracts. "When the people's court tried the first-instance and second-instance dispute cases of commercial housing sales contracts concluded after the implementation of the Urban Real Estate Management Law, the second paragraph of Article 15 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes stipulated the time limit for exercising the right to terminate the contract. However, unless the other party is really unable to perform the main obligations of the contract. "
In my opinion, unless the parties really can't fulfill the main obligations of the contract, such as the unqualified main structure of the house, the serious quality problems of the house that can't be repaired or the purpose of use can't be achieved after the repair, the provisions of the second paragraph of Article 15 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes about the agreed period of exercising the cancellation right within 1 year should be applied.
Therefore, Lao Li was able to return a house as he wished and get compensation because he filed a lawsuit as scheduled within the specified year.
However, Xiao Wu took over the house in June 20 15, and did not bring a lawsuit to the court until June 20 17. The time has exceeded the maximum effective exercise period of one year, and he naturally cannot get the support of the court.
Lawyer reminds
1, the house shall be inspected and accepted in time upon delivery.
House inspection is the most critical step for buyers to collect houses. Pay attention to the following points when filling in the delivery acceptance form:
(1) truthfully fill in the quality problems existing in the house and indicate the rejection; (2) Write the repair time negotiated with the development company and the delivery method notified by the development company again after repair in the blank space of the acceptance form; (3) Ask the development company to provide the house acceptance certificate in duplicate, and keep one for yourself.
Before the house is repaired, the buyer has the right to refuse to go through the subsequent handover procedures such as paying relevant taxes and signing property management documents.
2. If quality problems are found, the right to terminate shall be exercised in time to prevent the loss of rights.
When concluding a contract for the sale of commercial housing, the buyer shall pay close attention to and supervise the performance of the other party in time. Once the cause of breach of contract occurs, exercise the right of rescission in time to avoid the loss of rights and the inability to safeguard legitimate rights and interests.
The law does not protect the rights of people who sleep deeply.
Author:
Lawyer Yu, studio of civil and commercial difficult cases of Zhejiang Zeda Law Firm.
Special statement: The articles published above only represent the author's own views, and shall not be regarded as any form of legal opinions or suggestions issued by Zhejiang Zeda Law Firm or its lawyers.