Some of the most common problems in housing transaction must be remembered
4hw.org: the disputes of house purchase and sale are the most reluctant to be encountered in the hearts of buyers. If you grasp some legal knowledge of house purchase and sale early, you can avoid these economic disputes. The following small edition of the housing transactions in the most common problems extracted out, for your reference only.
Buying a house is a matter of life and carelessness. The dispute of house sale is also one of the common civil disputes. So, what should we do in case of a house sale dispute? First of all, we should know some legal knowledge of house sale. The following editor specially extracts the most common problems of both sides of the house transaction, and gives risk tips for them, hoping to help both sides of the house transaction.
I. after the signing of the subscription (pre purchase) agreement, it is not allowed to refuse to sign the formal housing sales contract
In the current first-hand house sale, the general buyers have signed the "subscription letter" when they are looking at the house, and then they can't refuse to sign the formal "house sale contract" for the reason that they can't reach an agreement with the developers (such as delivery time, house price, floor orientation, etc.). However, if the buyer resolutely does not sign, the developer can not force the buyer to sign, but can claim compensation from the buyer. In practice, the deposit is usually confiscated. This rule also applies to the sale of second-hand houses.
Special tips:
When looking at a house, you can look at it at will, but you can't sign it at will. You must polish your eyes, buy a house rationally, and don't be easily induced or even misled by various promises of sales.
Relevant provisions:
1. When the parties sign the appointment contract, they already know the main terms of the housing sales contract to be signed in the future. If the party who refuses to sign the contract defends not to bear the liability for breach of contract on the ground that both parties cannot reach an agreement on the main terms, it will not support it.
2. If one of the parties fails to perform the contract signing obligations as agreed in the advance contract without any justifiable reason, the observant party requests the people's court to make a judgment to compel the signing of the housing sales contract without support. If the liability for breach of contract such as the deposit stipulated in the advance contract is obviously insufficient to make up for the loss of the observant party's reliance interest, and the observant party requests for additional compensation, it may be supported.
II. Price terms are invalid if 'Yin Yang contract' is adopted to avoid tax
In practice, in order to avoid a large amount of taxes and fees generated by the housing (mainly second-hand housing) exchange, some trading parties will adopt the "Yin-Yang contract" method to avoid taxes, that is, in addition to signing a real "housing sales contract", they will sign a fake "housing sales contract" with a lower price, and handle the transfer and tax declaration with this contract, which is called "Yin-Yang contract".
The false price terms arising from the "Yin-Yang contract" and the terms agreed in the real "housing sales contract" that need to facilitate the transaction in this way are invalid, and the real housing sales price shall be used to pay taxes and perform the contract. The increased taxes and fees shall be shared by the parties in accordance with the law.
Special tips:
The risk of signing 'yin-yang contract' is large, which is very easy to generate various disputes. Whether the buyer and the seller agree or not, this operation mode is invalid due to violation of the mandatory provisions of laws and regulations, which is not desirable.
Relevant provisions:
If the parties make up the transaction price in the housing sales contract submitted to the registration authority, the price clause shall be invalid. One party's request to perform the contract at the true transaction price shall be supported.
If the registration authority calculates or recovers taxes according to the real price, resulting in the increase of transaction taxes, and the parties cannot reach an agreement on the burden of the increased part of taxes, it shall generally be borne by the parties in accordance with the law.
III. If the seller does not cooperate with the loan, the buyer can choose to pay off the house price in one lump sum, otherwise, the seller will not be able to continue to perform the contract
If the buyer purchases the house with the mortgage loan, the buyer needs the seller's cooperation in handling the mortgage loan. If the seller deliberately fails to cooperate, it is difficult for the buyer to obtain the same loan letter from the bank, so the contract cannot be performed. If the buyer claims to continue to perform, it shall have the ability to perform, that is, it can make one-time payment or have such ability within a certain period of time. In addition, the contract cannot be required to continue to perform, but it can be required to terminate the contract and compensate for the loss.
Special tips:
In the event of the buyer's intentional failure to cooperate in the handling of bank loans, the buyer cannot blindly believe that he has chosen to continue to perform the contract, or even 'force the transaction' for innocent reasons. At this time, the choice of strategy is particularly important. Otherwise, the truth may prevail and suffer the legal defeat.
Relevant provisions:
If the parties agree that the payment method is to handle the house guarantee loan, the seller refuses to cooperate in the handling of the guarantee loan, and the buyer meets one of the following conditions, it may support its claim to continue to perform the contract:
1. Having paid off the purchase price in accordance with the contract, or agreeing to pay off all the purchase price in a lump sum within a reasonable period of time and having sufficient evidence to prove its ability to perform.
2. Agree to pay off the debts on behalf of others to eliminate the mortgage on the house, and agree to pay off the purchase price in a lump sum within a reasonable period of time and have sufficient evidence to prove that it has the ability to perform.
3. The loan commitment letter has been obtained from the bank, and the loan bank expressly agreed to issue the loan according to the commitment letter in the lawsuit.
In addition to the above circumstances, the buyer's claim for continued performance of the contract shall not be supported generally in accordance with the provisions of the first paragraph of Article 110 of the contract law on the fact that the contract cannot be performed.
IV. if the house sale contract is terminated due to one party's breach of contract, the observant party may not only require the other party to bear the liability for breach of contract according to the contract, but also claim for compensation for the loss of available interests
In the case of large price fluctuation in the real estate market, the liability for breach of contract set in the contract is often not enough to protect the observant party. Because it is profitable, the defaulting party would rather default than continue to perform the contract. However, if the available interests are protected, the default cost of the defaulting party will be greatly increased, which helps to maintain the security of real estate transactions.
Special tips:
In addition to respecting the transaction itself, the buyers and sellers should also respect the market rules. The extra gains or losses brought by the market rules must not be obtained or avoided through default, otherwise it is easy to lift a stone and hit its own feet.
Relevant provisions:
If a house sale contract is terminated due to one party's breach of contract, the non breaching party may require the breaching party to compensate for the loss of available interests such as house price difference or resale interests. When calculating the loss, it shall deduct the loss that the non breaching party has not taken reasonable measures to expand improperly, the benefit that the non breaching party obtains as well as the necessary expenses that need to be paid to obtain the benefit, and determine the loss by comprehensively considering the performance of the non breaching party, but shall not exceed the loss that the breaching Party saw or should have foreseen when signing the contract.