Can the developer's liquidated damages for delaying delivery be compensated by property fees?

The developer's penalty for delaying the delivery of the house cannot be compensated by the property fee.

1. Lawyer believes that the relevant laws of our country clearly stipulate that the pre-sale party's late delivery of the house constitutes a violation of the pre-sale contract, and should bear the liabilities for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. The form of liability is generally to pay liquidated damages, and the amount of liquidated damages is determined according to the agreement of both parties.

If the two parties have not agreed on the amount of liquidated damages or the calculation method of loss compensation in the contract, the specific amount can be determined by referring to the following standards: in case of overdue delivery of the house, the rent during the overdue delivery period shall be determined according to the rent standard of similar houses in the same lot published by the relevant competent department or evaluated by a qualified real estate appraisal agency. If the parties demand a reduction on the grounds that the agreed liquidated damages are too high, they shall reduce them appropriately on the basis that the liquidated damages exceed 30% of the losses.

If the parties demand an increase on the grounds that the agreed liquidated damages are lower than the losses caused, the amount of breach of contract shall be determined according to the losses caused by breach of contract. Accordingly, the property owner may, in accordance with the contract, require the developer to bear the legal responsibility for overdue delivery and demand certain economic compensation.

2. Lawyers believe that it is illegal for developers to use property management fees to offset liquidated damages. First of all, property management fees and liquidated damages cannot be offset. Property management and developers selling houses are two legal relationships and different contract subjects. Legally speaking, "liquidated damages for delayed delivery" and "property management fee" cannot offset each other.

Secondly, the "debt transfer" must sign an agreement. Article 84 of the Contract Law stipulates the behavior of "assignment of creditor's rights" in contract assignment, that is, "if the debtor assigns all or part of the contractual obligations to a third party, it shall be approved by the creditor".

That is to say, if the developer pays the buyer the debt of "liquidated damages for delayed delivery" and transfers it to the property management company, the property management fee of 1 to 2 years will be offset, which must be agreed by the creditor-the owner of the house. Moreover, in judicial practice, it is generally necessary to obtain the consent of the debt assignee-the property management company.

3. The lawyer reminded the buyers that the developer's use of property management fees to offset the liquidated damages for delayed delivery may also infringe upon the legitimate rights and interests of other owners in the community. Therefore, property buyers should keep the written evidence of breach of contract related to the developer's overdue delivery when handling the check-in formalities, so as to get legal protection when further dealing with this problem in the future.