Analysis of legal problems in the delivery of commercial housing

Lawyer Cai Yaozhong of Beijing Lao Si De Law Firm.

200 1 year is called "the year of occupancy disputes" in Beijing real estate market. In 2002, the occupation dispute continued. Many real estate projects in the process of housing delivery, developers and buyers "hate because of housing", and then "turn against each other." In addition to the imperfection of government regulations and policies, as well as the fraudulent behavior of some developers, the vast majority of housing delivery disputes are due to the inability of developers and buyers to deliver and receive commercial housing correctly. Then, in the process of commercial housing delivery, what obligations should developers undertake? What problems often appear in the delivery of commercial housing? As the delivery party, how to solve the problem through consultation, so as to reduce the occurrence of delivery disputes? ——

Four obligations of developers in the process of commercial housing delivery

Obligation 1: Deliver the commercial housing that meets the delivery conditions to the purchaser on schedule.

According to Article 30 of the Measures for the Administration of Commercial Housing Sales: "The real estate development enterprise shall deliver the commercial housing that meets the delivery conditions to the buyer on schedule according to the contract."

"Deliver the commercial housing that meets the delivery conditions to the purchaser on schedule" has two meanings:

1. The developer has the obligation to deliver the commercial housing that meets the delivery conditions to the purchaser. The delivery conditions here should include legal delivery conditions and contract delivery conditions.

At present, the corresponding legal conditions of commercial housing delivery have been stipulated in the Contract Law, the Measures for the Administration of Commercial Housing Sales and other laws and regulations, but in general, these provisions are not specific enough. In practice, the conditions of commercial housing delivery are mainly based on contracts.

The developer shall deliver the commercial housing to the purchaser in accordance with the standards agreed in the Commercial Housing Sales Contract signed with the purchaser and its annexes and supplementary agreements. The delivery conditions stipulated in the contract generally include: ① the area, apartment type, area and orientation of the commercial house; ② Decoration, fitment and equipment standards of commercial housing; (3) Water, electricity, gas and heating. (4) Supporting facilities such as roads, greening and clubs in residential areas shall meet the delivery conditions.

2. Developers are also obliged to deliver commercial housing to buyers on schedule.

If the developer fails to deliver the goods on time, it shall bear the liability for breach of contract in accordance with the contract; If the developer fails to deliver the commercial housing within the time limit, the purchaser has the right to terminate the contract.

Obligation 2: Show the buyer the documents that have passed the completion acceptance of the commercial house and the measured area data of the house.

1. When delivering the commercial house, the developer shall show the buyer the documents that the commercial house has passed the completion acceptance.

According to Article 4 of the Interim Provisions of the Ministry of Construction on the Completion and Acceptance of Housing Construction Projects and Municipal Infrastructure Projects, the construction unit (developer) is responsible for organizing the implementation of the project completion and acceptance.

According to the Interim Measures for the Administration of Completion Acceptance of Housing Construction Projects and Municipal Infrastructure Projects issued by the Ministry of Construction, the developer shall notify the county where the project is located within 15 days from the date of completion acceptance. If the developer and the purchaser agree in the contract that the Record Form for Completion Acceptance of Construction Project must be available when delivering the commercial house, the developer must show it to the purchaser when delivering the commercial house, otherwise the purchaser has the right to refuse to accept the house, and the developer shall bear the liability for breach of contract for overdue delivery of the house.

2. When the developer delivers the commercial housing, it should also show the measured area data of the commercial housing to the purchaser.

According to Article 34 of the Measures for the Administration of Commercial Housing Sales: "Real estate development enterprises shall entrust units with real estate surveying and mapping qualifications to conduct surveying and mapping according to the project before the commercial housing is delivered for use, and the surveying and mapping results shall be reported to the real estate administrative department for examination and approval before being used for housing ownership registration."

For the auction house, the commercial housing area agreed in the commercial housing sales contract is measured according to the design drawings, and the surveying and mapping results after the completion of the commercial housing are different from the area data agreed in the contract. When the commercial housing is delivered, the developer and the purchaser shall settle the area difference according to the contract. In addition, property management companies also charge property management fees according to the measured area of commercial housing.

Obligation 3: Provide the buyer with the house quality guarantee and the house use instruction.

According to Article 3 of the Regulations of the Ministry of Construction on the Implementation of Housing Quality Guarantee and Housing Instruction System for Commercial Housing: "Real estate development enterprises must provide housing quality guarantee and housing instruction when delivering new commercial housing for sale to users."

If the developer fails to provide the above two documents to the purchaser when delivering the house, the purchaser has the right to refuse to accept the house, and the responsibility for delayed delivery arising therefrom shall be borne by the developer.

Obligation 4: Inform the purchaser to go through the check-in procedures and cooperate with the purchaser to inspect and accept the house.

The developer shall send a notice of occupancy to the purchaser before the delivery date agreed in the contract, and notify the purchaser in writing to come and collect the house. The check-in notice should generally include the following contents: ① Check-in time and place; (2) Documents and materials that the purchaser needs to carry; (3) An explanation of the expenses that the purchaser needs to pay; (4) Remind the buyer of the legal consequences of not going through the check-in formalities within the specified time limit and place due to the buyer's own reasons; ⑤ Basic process and related matters needing attention.

The check-in notice should be sent by registered mail or express mail. When the purchaser comes to check in at the time specified in the check-in notice, the developer shall organize relevant personnel to cooperate with the purchaser to check and accept the house. If the house is inspected according to the contract, the developer should sign the "Delivery Acceptance Sheet" with the purchaser; If problems are found in the house inspection, the developer should ask the purchaser to fill in the maintenance form, organize personnel to carry out timely maintenance, and inform the purchaser of the maintenance results.

Three major problems in the delivery of commercial housing and their solutions

The goods are not on the right board. What should I do if I receive the "faulty room"?

The "defective house" mentioned here includes two aspects: one is the quality defect of commercial housing, and the other is the right defect of commercial housing.

1. The quality defect of commercial housing refers to the quality problem of commercial housing. At present, in the process of commercial housing delivery, it is not uncommon for buyers to refuse to accept commercial housing on this ground.

In my opinion, whether the purchaser can reject the house on this ground depends on the quality standards agreed in the commercial housing sales contract and the relevant liability for breach of contract. If the house delivered by the contract obviously does not meet the quality standards agreed in the contract, the purchaser has the right to refuse to accept the house or terminate the contract, then the purchaser may refuse to accept the house.

If there is no explicit agreement in the contract, according to Article 148 of the Contract Law, "If the quality of the subject matter does not meet the quality requirements and the purpose of the contract cannot be achieved, the buyer may refuse to accept the subject matter or terminate the contract."

Article 35 of the Measures for the Administration of Commercial Housing Sales stipulates that "after the commercial housing is delivered for use, if the buyer thinks that the quality of the main structure is unqualified, he may entrust an engineering quality inspection agency to re-verify it in accordance with relevant regulations. If the quality of the main structure is verified to be unqualified, the buyer has the right to return the house. "

According to the above-mentioned laws and regulations, the author believes that if the delivered commercial house has quality defects such as cracks on the ground and wall, local water seepage, water leakage, damaged doors and windows, it will generally not lead to the buyer's failure to achieve the contract purpose, so the buyer cannot refuse to accept the house. However, this does not mean that developers are not responsible for the delivery of houses with such quality defects. Developers should bear the responsibility for breach of contract, such as maintenance, replacement and redo, depending on the specific situation. Developers must also compensate property buyers for losses caused by maintenance, replacement and redoing.

2. The right defect of commercial housing means that the delivered commercial housing has other rights such as mortgage.

Article 150 of the Contract Law stipulates that "the seller has the obligation to ensure that a third party cannot claim any rights against the buyer on the delivered subject matter. "

Article 151 of the Contract Law stipulates that "if the buyer knew or should have known that the third party had rights to the subject matter of the sale when concluding the contract, the seller shall not bear the obligations of Article 150 of this law."

Therefore, if the commercial house delivered by the developer has other rights, such as mortgage, if the developer does not explicitly inform him that he has set other rights, and the defects still exist when the commercial house is delivered, the purchaser can refuse to accept the house.

What if the developer doesn't pay the management fee when he moves in?

In practice, developers give the keys of commercial houses to property management companies, so that property buyers can get the keys from them. However, property management companies often take whether property buyers pay property management fees as the premise to get the keys, which also leads to many disputes.

The author believes that this approach is wrong. The buyer signs a commercial housing sales contract with the developer, and pays the house price to the developer according to the contract. The developer shall deliver the commercial house to the buyer as agreed in the contract (that is, deliver the house key). Legally speaking, the property management company is only the agent of the developer. As long as the purchaser does not have the contract that the developer can refuse to hand over the house, the property management company cannot refuse to deliver the house key to the purchaser.

Property management companies charge property management fees according to the Convention on the Use, Maintenance and Management of Houses and the Entrustment Contract for Property Management. If the purchaser fails to pay the property management fee, the property management company can investigate the purchaser's corresponding legal responsibilities according to the relevant provisions of the above contract, but it cannot refuse to deliver the house key to the purchaser on this ground.

What if the purchaser fails to check in at the specified time?

In many projects, due to their own reasons, the buyers failed to go through the check-in formalities according to the time specified in the check-in notice, resulting in the failure to deliver the commercial housing on schedule. The responsibility of the two parties for the property management fees and other expenses during this period and the risk of damage and loss of commercial housing are controversial, which leads to disputes.

According to Article 142 of the Contract Law, "the risk of damage or loss of the subject matter shall be borne by the seller before delivery and by the buyer after delivery, unless otherwise stipulated by law or agreed by the parties." (italics)

Therefore, if the commodity house fails to be delivered on schedule due to the buyer's own reasons, the property management fees and other expenses incurred during this period shall be borne by the buyer, and the risk liability for the damage or loss of the commodity house shall also be borne by the buyer. In order to reduce the disputes arising from this, it is suggested that the developer clearly agree with the purchaser when signing the contract.