The roof of the new house is leaking. Can I not take the house?

When the new house is handed over, the water pipe leaks from time to time. Owners will think that this situation does not meet the occupancy standards, thus refusing to accept the house as agreed in the contract, and will require the developer to bear the liability for breach of contract for overdue delivery, as well as compensate for the losses such as property fees and heating fees already paid. Will the court support this request?

1. In judicial practice, the court is very cautious about the determination of developers' overdue delivery. The owner refused to repossess the building and asked the developer to bear the responsibility of overdue delivery. The court may not support it.

The reason is that, from the perspective of the purchase contract, some courts will think that as long as the two basic conditions agreed in the contract are met, the house can be handed over: the delivery conditions agreed in the contract are met; The developer's notice is in place.

In practice, according to the purchase contract, "five parties are qualified" or the house has a completion acceptance record form, which can prove that the main structure of the house is qualified and has the delivery conditions agreed in the contract. The developer sent the "Notice of Occupancy" to the owner as agreed, that is, fulfilled the obligation of informing others to hand over the house.

The local (Dalian) court adopts the principle of strictly following the contract when dealing with the leak. As long as it is not the quality problem of the main structure, the owner has no right to unilaterally refuse to accept the house.

2. If the owner can't refuse to repossess the building, how can he protect his rights?

1) According to the above ideas, whether the owner actually repossesses the building or not, at the judicial level, the owner's request for the developer to pay overdue liquidated damages will not be supported. The key point of rights protection is that the owner should make a good acceptance record with the developer, fix the leaked on-site evidence (clear and complete pictures and videos) and ask the developer to repair it; If the residential use is affected, the developer may be required to compensate for the losses.

2) In fact, as long as the contract is not terminated, after the delivery of the house, it will not affect the owner's request for the developer to repair the house as agreed, and bear the responsibility of compensating for the losses.

According to Article 10 of the Interpretation of Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Contracts (hereinafter referred to as the Judicial Interpretation), the quality of the house seriously affects the normal living and use, and the buyer's request to terminate the contract and compensate for the losses should be supported.

This provision applies to "the quality problem seriously affects the residence". For example, when handing over the house, it is found that the problem of water leakage is more serious. For example, according to the photos and maintenance records on the spot, the bathroom pipes were exposed on the day of handing over the house, and other rooms were damaged in a large area because of water leakage, which can prove that it is impossible to move in normally on the date of handing over the house as agreed in the contract, especially in a finely decorated house. Then, there is a factual basis for the owner to claim compensation from the developer.

Therefore, although the house has the delivery conditions agreed in the contract, it may not be able to achieve the contractual purpose of buying a house-basic living use. Therefore, although the owner's refusal to repossess the building before asking for maintenance may not be supported by the court, there is no problem in compensating for the loss.

3. How to determine the loss amount or compensation standard?

One solution is that the developer and the owner reach an agreement, and the developer will compensate the owner according to the agreed compensation standard, and the developer will often convert the loss into a property fee to cover it.

If the owner does not agree with this plan, both parties can only solve it through litigation. The court will determine the amount of loss according to the defendant's breach of contract, the severity of housing quality and the performance of the contract. , combined with the housing area involved and the market rental price, this is also in line with the provisions of article 13 of the judicial interpretation. The amount of compensation for losses shall be determined by the competent department or real estate appraisal agency according to the rent standard of similar houses in the same lot.

Reference case: (202 1) Liao 02 Minzhong 1 138

4. Summary and recommendations

1) On the day of delivery, the owner must cheer up when he looks at the house on the spot. It is common for water pipes to leak and walls to crack. Remember to "take a photo as a souvenir" and make a record on the delivery record.

2) In case of large-scale leakage, take a video (as comprehensive as possible, including the personnel involved in the acceptance and the site situation), negotiate with the developer or the property management company, and refuse to sign the house delivery acceptance form when necessary.

3) In case of water leakage, the owner has the right to ask the developer to repair the leaking point and damaged furniture (such as hardcover delivery), and also has the right to ask the developer to compensate for the loss of not moving in as agreed. The loss standard can be compared with the rent of the delivered house.

4) Whether the property fee can be calculated according to the actual occupancy is controversial, so let's give it a try.

5) The most important thing is to choose brand developer products with good reputation, so as to avoid trouble in the future.