China Consumers Association: Comment on the unfair format clauses in the top ten housing fields

China Housing Network News (Liu Min/Wen) On September 2 1 day, China Consumers Association official website released comments on unfair format clauses in the housing sector. China Consumers Association said that according to the Investigation Report on Consumer Cognition and Clue Collection of Unfair Format Terms, China Consumers Association invited lawyers from China Consumers Association to comment on unfair format terms in commercial housing sales, leasing, decoration, property and other related fields that consumers strongly reflected.

Details are as follows:

When the seller fails to perform his obligations, he is completely exempted from his down payment responsibility.

For example, before the formal pre-sale agreement is signed, if it cannot be sold due to the seller's reasons, the seller is not bound by any agreement and only needs to refund the deposit without additional interest and compensation.

China Consumers Association pointed out that according to the law, when the party who collects the deposit fails to perform its contractual obligations, it should not only return the deposit collected to the payer, but also compensate the payer for the same amount of deposit, that is, double the deposit. The provisions of this format clause completely evade the legal liability of the operator for non-performance, which is very unfair to the property buyers and violates the legal provisions.

When the commercial housing sales contract is inconsistent with the advertising content, the publicity will be regarded as an invitation to bid to avoid responsibility.

For example, when signing this contract, the buyer has made a comprehensive and detailed understanding through on-site inspection, access to relevant documents and other procedures, and the seller has no false or misleading promises and statements, so the buyer voluntarily purchases the property. The model houses, publicity materials and real estate advertisements seen by the Buyer on the spot are only used as invitations to offer, not as the contract basis for the Seller to deliver the house to the Buyer, and the contents of this contract shall prevail.

China Consumers Association said that when consumers buy commercial housing in the sales office, sales brochures, real estate models, model houses and other sales advertisements and promotional materials carefully produced by developers will have a great impact on consumers' purchase decisions. Developers make explanations and commitments to commercial housing and its ancillary facilities in sales advertisements and promotional materials to attract consumers to sign up for purchase. According to the law, if the contents of commercial advertisements and publicity meet the conditions of the offer, it constitutes an offer, and the developer has no right to unilaterally stipulate in the contract that the advertisements and publicity materials do not constitute the contents of the contract. When advertisements and promotional materials for selling houses constitute an offer, even if they are not written into the contract, the developer should fulfill the relevant obligations. Failure to perform as agreed constitutes a breach of contract.

The seller has the right of final interpretation, excluding the other party's rights and exempting himself from responsibility.

For example, drawings, materials, advertisements, etc. The contents provided by the seller to the buyer in the process of selling the house are for the buyer's reference only, and shall not be regarded as the terms of the contract unless otherwise stipulated, and the seller has the final interpretation right.

China Consumers Association said that the standard terms should fairly determine the rights and obligations of both parties, and when there are different understandings of the standard terms, it should make an explanation that is not conducive to the party providing the standard terms. A standard clause is invalid if it unreasonably relieves the responsibility of the provider of the standard clause and excludes or restricts the rights of the other party.

Expand the scope of application of force majeure and avoid delay in delivery.

If the commodity house is not delivered to the buyer for use within the time limit stipulated in the contract due to design adjustment, climate change and other reasons, the seller shall not be liable for breach of contract.

China Consumers Association pointed out that this clause is an abuse of force majeure. Force majeure is an unforeseeable, unavoidable and insurmountable objective situation. Design adjustment and climate change are not force majeure, but factors that should be fully considered before construction. If the operator fails to deliver the house on schedule due to design reasons, it is a breach of contract and shall bear the liability for breach of contract.

After the expiration of the house lease, the direct transaction between consumers and house owners is restricted.

If the lease expires and the contract is terminated within three months, Party A (the lessee) shall not conduct any transaction with the property owner on its own, otherwise it shall pay 200% of the monthly rent to Party B (the intermediary agency) as compensation.

According to China Consumers Association, consumers have paid for the opportunities provided by the intermediary or the media services provided for the conclusion of the contract by concluding a lease contract with the owner of the house through the intermediary, and the contractual purpose of the intermediary has been realized. After the lease term expires and the contract is terminated, the consumer has the right to negotiate with the owner of the house directly to re-conclude the lease contract, which does not belong to the situation of using the trading opportunities or media services provided by the intermediary agency to bypass the intermediary agency and directly conclude the contract as stipulated in Article 965 of the Civil Code. The intermediary agency has no right to restrict it, let alone ask the consumer to pay remuneration, liquidated damages or compensate for the losses.

There is a problem with the decoration construction, and the material cost is passed on to consumers.

For example, during the renovation period, materials purchased by Party A (consumers) are constructed by Party B (decoration company). In case of quality problems due to Party B's construction, Party B shall be responsible for the labor costs and Party A shall be responsible for the materials during the warranty period.

China Consumers Association said that in the decoration process, after the construction caused quality problems, it is often necessary to dismantle some or all of the original decoration materials for re-construction. In the process of demolition, the original decoration materials will be partially or completely damaged. The materials purchased by consumers belong to their own property, and the losses caused to consumers by the unqualified construction quality of operators shall be borne by operators. This clause lightens the responsibility of the operator and belongs to the unfair format clause.

The setting standard of liquidated damages is too low, and the operator's default cost is small.

If the construction party breaches the contract and the project is overdue, it shall pay liquidated damages to consumers in RMB 20 yuan every day.

China Consumers Association said that the setting of liquidated damages should be based on the principle of making up for actual losses. The amount of liquidated damages agreed here is low, which obviously cannot make up for the actual losses caused by the inability to move in in time (such as extending the lease term and increasing the lease cost), and it is suspected of excluding consumers' right to claim the liability for breach of contract and reducing the operator's liability for compensation.

The advance payment is regarded as deposit or liquidated damages, and will not be refunded when the contract is terminated, which increases the responsibility of consumers.

For example, except for force majeure, if Party A (the consumer) unilaterally terminates the contract and the advance payment has been paid, Party B (the operator) will not return it; If this causes losses to Party B, Party A will bear all the losses of Party B. ..

Another example is that if Party A (consumer) breaches the contract, the money paid by Party A will be compensated to Party B as liquidated damages.

China Consumers Association said that the advance payment is not a deposit in legal concept, and the "deposit penalty" cannot be applied to the agreement in the contract terms that the consumer terminates the contract and the paid advance payment will not be refunded. It is an unfair format clause that the operator unilaterally stipulates that when the consumer terminates the contract, he will not refund the paid advance payment or compensate the operator for the paid goods as liquidated damages, which increases the responsibility of the consumer. In addition, when the contract is terminated and the liability for breach of contract is assumed, the liquidated damages shall not exceed a reasonable amount.

Property companies charge management fees but do not bear civil liability for failing to fulfill their management obligations.

For example, the management of vehicles by the realty service enterprise under this agreement only refers to the management of the driving and parking order of vehicles, and does not undertake the obligation of keeping vehicles. In case of property losses such as vehicle damage, loss, property theft or personal injury or death, the property service enterprise shall not be liable if the responsible party bears criminal or civil liability.

China Consumers Association pointed out that property service enterprises should fulfill their legal or agreed reasonable management obligations when collecting parking fees from owners. This clause stipulates that the property service enterprise shall not bear any reasonable responsibility for property losses or personal injuries such as vehicle damage and loss, property theft, etc. In the property management area, those who belong to the property service enterprises are exempted from their own responsibilities and legal obligations.

In addition to the property management fees, the owners should also share the public expenses and increase the responsibilities of the owners.

If the comprehensive property service fee does not include public energy consumption such as landscape water system, the water and electricity charges for the operation of landscape water system shall be shared according to the actual consumption.

China Consumers Association said that the property management area should include public facilities and venues in residential areas such as landscapes. Therefore, the water and electricity costs such as greening maintenance, garden pools and fountains in the property management area should be included in the property management service fee and should not be shared with the owners.