«——·Preface·——»
Buying a home is a big deal, involving people's quality of life and property security.
In the process of buying a house, buyers should pay attention to check whether the developer has a legal pre-sale license, as well as the price, area, location, quality and other information of the house.
The pre-sale license refers to the license for the pre-sale of commercial housing obtained by a real estate development enterprise after obtaining the registration certificate of the sale of commercial housing or the registration certificate of the sale of commercial housing, and after being approved by the competent department of housing and urban-rural construction.
If the developer pre-sells commercial housing without applying for a pre-sale permit, is this behavior legal?
If it is not legal, how should buyers protect their legitimate rights and interests?
This article will analyze this problem through a real case and popularize relevant legal knowledge.
«——·Case Review·——»
Xiao Li is an office worker who wants to buy his own house in the city.
He saw a new property launched by a developer online called "Golden Garden", which is reasonably priced, has a superior location, and preferential policies.
He was moved, so he contacted the developer's sales staff and went to the sales office to see the model room. The salesman told him that this property is a pre-sale commercial house, and many people have already ordered it, if he wants to buy, he must pay a deposit as soon as possible and sign a subscription letter.
Xiao Li felt that this was a good opportunity, so he didn't think much about it, so he paid a deposit of 100,000 yuan and signed the subscription book.
The subscription letter stipulates the number, location, area, total price and other information of the house to be purchased by Xiao Li, and also stipulates the rights and obligations of both parties.
One of them reads: "Party A (developer) promises that it has obtained the relevant qualification documents such as the planning permit and construction permit of the project, and has presented it to Party B (Xiao Li).
Party A promises to obtain the pre-sale license of the project within this year, and promptly notify Party B to sign a formal commercial housing sales contract after obtaining it.
If Party A fails to obtain the pre-sale license on time or fails to deliver the right to use the house on time, Party B has the right to cancel this subscription and require Party A to refund the deposit and pay liquidated damages. ”
After Xiao Li saw this, he was a little puzzled and asked the salesperson why he didn't have a pre-sale license. The salesperson told him that this was because pre-sale permits would take some time to process, but it would not affect their normal sales and deliveries.
He also said that this clause is to protect Xiao Li's rights and interests, and if the developer cannot get the pre-sale permit or hand over the house on time, Xiao Li can cancel the subscription letter and get back the deposit and liquidated damages. Xiao Li felt that this explanation made sense, so he did not ask any more questions and signed the subscription book.
However, things did not go as smoothly as Xiao Li imagined. After half a year, Xiao Li did not receive any notice from the developer, nor did he see any progress in the real estate.
He calls the salesperson, only to find that the phone has gone down. He hurried to the sales office, but found that the sales office had closed its doors and was empty.
He felt very uneasy, so he went to the local real estate management department to inquire about the situation of this property. The staff of the real estate management department told him that this property was an illegal project, and the developer had pre-sold commercial houses without any pre-sale permit, and had been seized and fined.
They also told him that many buyers of the property had sued the developer in court, demanding a refund of the deposit and damages.
Xiao Li listened and felt that he had been deceived, very angry and helpless. He wanted to defend his rights, but didn't know what to do.
He wondered whether he could sue the developer directly in court and demand that he refund the deposit and compensate for the damages.
«——·Interpretation by Case·——»
This case involves two points of contention:
Is it legal for a developer to pre-sell commercial housing without a pre-sale permit?
If it is not legal, can Xiao Li directly sue the developer in court and demand that it refund the deposit and compensate for the loss?
According to Article 39 of the Law of the People's Republic of China on the Administration of Urban Real Estate:
"Pre-sale of commercial housing refers to the act of a development enterprise signing a contract for the sale of commercial housing with the buyer for the purpose of selling commercial housing before the completion of the construction project and collecting all or part of the housing payment after obtaining relevant qualification documents such as state-owned land use right certificates, planning permits, and construction project construction permits."
Based on this legal provision, we can draw the following conclusions:
It is illegal for the developer to pre-sell commercial housing without a pre-sale permit.
Because the developer has not obtained a pre-sale permit, it cannot carry out the pre-sale of commercial housing. The pre-sale permit is an important means to protect the rights and interests of buyers, which can prevent developers from maliciously delaying the delivery of houses, misappropriating funds, and changing projects.
If developers do not have a pre-sale license, it means that they have not passed the review and supervision of government departments, and there may be risks such as fraud, breach of contract, and breach of trust. Therefore, the developer's act of pre-selling commercial housing without a pre-sale permit violates the law and should bear the corresponding legal responsibility.
If it is not legal, Xiao Li can directly sue the developer in court and demand that it refund the deposit and compensate for the loss.
According to Article 52 of the Contract Law of the People's Republic of China, "if one of the parties fails to perform its contractual obligations or its performance of contractual obligations is not in accordance with the agreement, the other party may request its performance or take other relief measures." "According to this legal provision.
Xiao Li can request the developer to fulfill the contractual obligation, that is, to deliver the right to use the house. However, because the developer did not have a pre-sale permit and did not deliver the house on time, Xiao Li could not obtain the right to use the house, which constituted a situation where the contract could not be performed.
According to Article 94 of the Contract Law of the People's Republic of China, "if the purpose of the contract cannot be achieved due to force majeure or reasons attributable to one of the parties, the contract shall be terminated by itself." According to this law, Xiao Li can cancel the subscription with the developer and require the developer to return the deposit.
At the same time, according to Article 113 of the Contract Law of the People's Republic of China, "if one of the parties fails to perform its contractual obligations or performs its contractual obligations inconsistently with the agreement, causing losses to the other party, it shall compensate for the losses." According to this law, Xiao Li can also claim compensation from the developer for the losses caused by his breach of contract, including but not limited to: interest loss, rental costs, litigation costs, lawyer fees, etc.
«——·Conclusion·——»
Through this case, we can popularize the following legal knowledge:
When purchasing commercial housing, buyers should pay attention to check whether the developer has a pre-sale permit, as well as the price, area, location, quality and other information of the house.
If you find that the developer does not have a pre-sale license, do not easily pay a deposit or sign a subscription letter.
When signing the subscription document, the buyer should carefully read the content of the subscription document, especially the provisions on the pre-sale license, delivery time, liability for breach of contract, etc.
If there is something you do not understand or are not satisfied, you should consult or complain to the developer or relevant departments in time.
When the buyer discovers that the developer has violated the provisions of the subscription agreement, he shall promptly raise an objection to the developer and require him to make corrections or compensation.
If the developer refuses or prevaricates, the buyer can apply to the relevant department for mediation or file a lawsuit in court.
When claiming compensation, buyers should follow the principle of actual losses and refrain from excessive claims or vexatiousness.
If compensation for moral damages is sought, it should comply with the circumstances prescribed by law and provide corresponding evidence and reasons.
The developer's act of pre-selling commercial housing without a pre-sale permit is illegal and shall bear the corresponding legal responsibility.
If it is not legal, the buyer can directly sue the developer in court and demand that the deposit be returned and damages compensated.
We have also popularized the following legal knowledge:
When purchasing commercial housing, buyers should pay attention to check whether the developer has a pre-sale permit, as well as the price, area, location, quality and other information of the house.
When signing the subscription document, the buyer should carefully read the content of the subscription document, especially the provisions on the pre-sale license, delivery time, liability for breach of contract, etc.
When the buyer discovers that the developer has violated the provisions of the subscription agreement, he shall promptly raise an objection to the developer and require him to make corrections or compensation.
When claiming compensation, buyers should follow the principle of actual losses and refrain from excessive claims or vexatiousness. If compensation for moral damages is sought, it should comply with the circumstances prescribed by law and provide corresponding evidence and reasons.