In 2001, it was referred to as the “dispute dispute year†in the Beijing real estate market. In 2002, disputes over stay continued. Many real estate projects in the process of housing delivery, developers and home buyers "because of housing hate", and then "revenge." In addition to government regulations, policies, and frauds, some of the reasons for housing delivery disputes are due to the fact that developers and buyers cannot properly deliver and receive commercial housing. Then, what obligations should the developer undertake during the delivery of commercial housing? What problems often arise in the delivery of commercial housing? As the delivery of the two sides how to solve the problem in order to reduce the occurrence of delivery disputes? -
Four major obligations of developers in the delivery of commercial housing
Obligation I: Delivery of commercial housing eligible for delivery and use to buyers on time
According to Article 30 of the "Administrative Measures on the Sale of Commercial Housing," the real estate development company shall, according to the contract, deliver the commercial housing that meets the conditions for delivery to the buyer on schedule."
"Delivery of commercial housing eligible for delivery and use to buyers on time" has two meanings:
1. The developer is obliged to deliver to the purchaser a commercial house that meets the conditions for delivery and use. The conditions for delivery and use here include the statutory conditions for delivery and use and the contractual conditions for delivery and use.
At present, laws and regulations such as the "Contract Law" and "Commercial Housing Sales Management Measures" have formulated the corresponding statutory conditions for the delivery of commercial housing. However, in general, these provisions are not specific enough, and in practice, for commercial housing Delivery conditions are mainly based on the contract.
The developer shall deliver the commodity house to the purchaser in accordance with the agreed standards of the "Commercial Housing Sale Contract" and its annexes and supplementary agreements signed with the purchaser. The contractual conditions for delivery and use of the contract generally include: (1) the area, type, size and orientation of the commercial housing; The decoration, decoration and equipment standards of commercial housing; 3 water and electricity, gas, heating, etc.; 4 residential roads, greening, clubs and other ancillary facilities, all of which should have the conditions for delivery.
2. The developer is also obliged to deliver commercial housing to the buyers on time.
If the developer fails to deliver the goods on time, he shall bear the liability for breach of contract in accordance with the contract; if the developer fails to deliver the commodity house beyond the time limit specified in the contract, the purchaser has the right to rescind the contract.
Obligation 2: Present to the purchaser the documents of qualified acceptance of commercial housing and the actual measured area data of the housing
1. When the developer delivers the commercial housing, the developer shall show the homeowner a document that has passed the acceptance check.
According to Article 4 of the “Interim Provisions on the Completion of the Acceptance of Building Construction and Municipal Infrastructure Projects†of the Ministry of Construction, the “construction unit (developer) shall be responsible for the organization and implementation of the project completion acceptance work.â€
According to the provisions of the “Provisional Measures for the Administration of the Acceptance of Projects for the Acceptance of Buildings and Municipal Infrastructure Projects†of the Ministry of Construction, the developer shall, within 15 days from the date of acceptance of the completion of construction, submit to the competent administrative department of construction of the local people’s government at or above the county level where the project is located ( The following referred to as the filing agency) for the record. After the archival filing agency has received the complete completion acceptance filing document submitted by the developer, it will issue the "Construction Project Completion Acceptance Record Form" to the commodity house.
From the above provisions, we can see that the qualified documents for acceptance of commercial housing can be completed by the construction unit (developer), survey, design, construction, supervision, etc., after the acceptance of the completion project, and it can also be “ Construction Project Acceptance Record Form. In general, the latter is issued by the government’s administrative department of construction and its credibility is stronger.
If the developer and the purchaser have agreed in the contract that the delivery of the commercial housing must have the “Construction Project Completion Acceptance Record Formâ€, the developer must present it to the purchaser when the commercial housing is delivered. Otherwise, the purchaser has the right to refuse to accept the housing. The developer should Take responsibility for breach of contract for overdue delivery of the home.
2. When developers deliver commercial housing, they should also show the actual measured area data of the commercial housing to the purchaser.
According to Article 34 of the "Administrative Measures on the Sale of Commodity Housing," the real estate development enterprise shall, before the delivery of the commercial housing, entrust the entity that has the qualification for surveying and mapping of real estate to implement surveying and mapping. The results of surveying and mapping shall be reported to the real estate administrative department for examination and approval after being used for housing ownership. Registration."
For 期房, the commercial housing area stipulated in the “Commercial Housing Sale and Purchase Contract†is measured according to the design drawings. The mapping result after the completion of the commercial housing is different from the area data agreed in the contract. When the commercial housing is delivered, the developer and the purchaser deal with the area difference. Settlement is carried out according to the contract; in addition, the property management company also collects the property management fee based on the actual measured area of ​​the commercial house.
Obligation 3: Provide "Housing Quality Guarantee" and "House Use Instruction" to buyers.
According to Article 3 of the "Provisions on Implementation of Housing Quality Assurance Certificate and Housing Operation Manual System for Commodity Houses" of the Ministry of Construction, "Real Estate Development Enterprises must provide "Residential Quality Assurance Certificate" and "House Use Instruction" when delivering new commercial housing to users. ."
When the developer delivers the house, if he fails to provide the above-mentioned two documents to the purchaser, the purchaser has the right to refuse to accept the house, and the responsibility for the delayed delivery of the house is borne by the developer.
Obligation 4: Inform the buyer to check in and cooperate with the buyer to check and receive the house
The developer shall issue a “Notice of Stay†to the purchaser before the delivery date agreed upon in the contract and notify the purchaser in writing to receive the house. The “Notice of Staying†should generally include the following contents: 1The time and place of check-in; 2The documents and materials that the purchaser should bring; 3The description of the payment required by the purchaser; 4Remind the purchaser of the homeowner because of their own reasons. The legal consequences of check-in at the specified time and place; 5 basic processes and related precautions.
The "Notice of Stay" is issued by registered or express mail. When the purchaser comes to check in before the time specified in the check-in notice, the developer should organize the relevant person to cooperate with the purchaser to check and receive the house. If the inspection of the house is in accordance with the contract, the developer shall sign the “Delivery Checklist†with the purchaser. To inspect the problem of the discovery of the house, the developer shall ask the purchaser to fill in the “Repair List†and the organizer shall promptly return the repair and notify the buyer of the result of the repair. .
Three Problems in Delivery Process of Commercial Housing and Their Solutions
If the goods are not on the road, what should I do if I receive a "major ward?"
The “branch room†mentioned here includes two aspects. One is the quality of the commercial housing, and the other is the existence of the right to the commercial housing.
1. The existence of quality defects in commercial housing refers to the quality of commercial housing. At present, in the process of delivery of commercial housing, it is more common for home buyers to refuse acceptance of commercial housing.
The author believes that if a home buyer can refuse a house on this ground, it must first be based on the quality standards as stipulated in the “Commercial Housing Sales Contract†and the relevant contract liability stipulations in the contract. If the contract expressly stipulates that the delivered house cannot reach the contract The quality standards, buyers have the right to refuse to accept the house or rescind the contract, the purchaser can 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 contract cannot be achieved, the buyer may refuse to accept the subject matter or terminate the contract."
Article 35 of the "Administrative Measures on Sales of Commodity Housing" stipulates that after the delivery of a commodity house, if the buyer believes that the quality of the main structure is unqualified, it may entrust an engineering quality inspection agency to re-verify it in accordance with the relevant regulations. The verification is indeed a failure of the quality of the main structure. The buyer has the right to check out."
According to the above legal provisions, the author believes that for the delivery of commercial housing there are ground, wall cracks, partial water seepage, water leakage, door and window damage and other quality defects, because it generally does not lead to buyers can not achieve the purpose of the contract, buyers can not be rejected thereby Receive the house. However, this does not mean that developers do not have to bear responsibility for the delivery of houses with such quality defects. Developers who deliver quality buildings, depending on the specific circumstances, should bear responsibility for breach of contract, such as repairs, replacements, redo, etc., for repairs and replacements. The developer must also compensate the purchaser for damages if it causes losses to the buyers.
2. The existence of rights in commercial housing refers to the existence of mortgage rights and other rights in the delivered commercial housing.
Article 150 of the "Contract Law" stipulates that the seller of the object to be delivered shall have the obligation to guarantee that the third party may not claim any rights from the buyer. â€
"Article 151" of the "Contract Law" stipulates that "when the buyer knows or should know at the time of the contract that the third party has rights to the subject matter of the sale, the seller shall not assume the obligations of Article 150 of this Law. â€
Therefore, if there is a mortgage right or other rights for the commodity house delivered by the developer, if the developer does not explicitly inform him that he has set up other rights such as the mortgage right when the commodity house is sold, the house still exists when the commercial house is delivered. You can refuse to receive the house.
No management fee was paid when checking in. What if the developer does not give the key?
In practice, the developer hands over the key of the commercial house to the property management company, so that the purchaser can receive the house key from the property management company. The property management company often gives the purchaser the property management fee as a precondition for obtaining the house key. A lot of disputes.
The author believes that this practice is wrong. The purchaser and the developer sign a “Commercial Housing Sales Contract†and pay the developer a house price in accordance with the contract. The developer should deliver the house to the purchaser according to the contract (ie, deliver the house key). From the perspective of legal relationship, the property management company is only the agent of the developer, and the property management company cannot refuse to deliver the house key to the purchaser as long as there is no case in which the developer in the contract can refuse to deliver the house.
The property management company collects the property management fee based on the “Construction of House Use, Maintenance and Management†and the “Contract for Real Estate Managementâ€. The purchaser does not pay the property management fee. The property company may pursue the relevant laws of the purchaser according to the relevant clauses of the above contract. Responsibility, and can not be used as a reason to refuse to deliver house keys to buyers.
What if the purchaser fails to check in as scheduled?
In many projects, because of their own reasons, buyers did not check in according to the time specified in the check-in notice. As a result, the commercial housing failed to be delivered on time, and the cost of the property management fee and other costs incurred by the two parties during the period as well as the damage to the commercial housing were The controversy over the liability for the loss of the risk, resulting in a dispute.
According to Article 144 of the "Contract Law", the risk of destruction or loss of the subject matter shall be borne by the seller prior to the delivery of the subject matter and shall be borne by the buyer after delivery, provided that the law provides otherwise or the parties agree otherwise. Except." (carcass)
Therefore, due to the purchaser's own reasons, resulting in commercial housing failed to be delivered on time, the property management fees and other expenses incurred during this period should be borne by the purchaser, and the risk of damage and loss of the commercial housing is also borne by the purchaser. In order to reduce disputes that occur as a result, developers are advised to make explicit agreements with home buyers when signing a contract.
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