The article takes you to understand the "good service" of the second-hand housing transaction market
【Zhuhai lawyer, Zhuhai legal consultation, Zhuhai law firm, Jingshi law firm, Jingshi Zhuhai law firm】
Special statement: This article is reprinted from Beijing Jingshi (Chongqing) Law Firm
The author of this article is Feng Jianbo, a lawyer from Beijing Jingshi (Chongqing) Law Firm
What is "Good Service"?
What should consumers pay attention to when signing a second-hand housing transaction contract?
What is the court's determination of the validity of the Haozan Service Agreement?
Through the analysis and research of a number of judgment documents published on the China Judgment Network, Feng Jianbo, a lawyer from Beijing Jingshi (Chongqing) Law Firm, put forward professional legal opinions on "good praise service".
In recent years, as the real estate market has been declining and it has become more and more difficult to make transactions, Haozan service came into being.
Haozan service is a second-hand housing market, a real estate brokerage company uses its dominant position in information flow to increase exposure and increase popularity to provide customers with priority display and recommendation services and charge a certain percentage of a service product, so the service agreement signed by the two parties is called "Haozan service agreement".
1. Policy background
In 2019, six departments, including the Ministry of Housing and Urban-Rural Development, jointly carried out special rectification work on the chaos of housing rental intermediaries, and achieved remarkable results.
In 2021, eight departments, including the Ministry of Housing and Urban-Rural Development, continued to carry out rectification and regulation of the order of the real estate market, and the market supervision department was responsible for investigating and dealing with issues such as false and illegal real estate advertisements, illegal prices, and infringement of consumer rights and interests by using unfair format terms.
II. Statistics on judicial practice data
The search results of the article by entering the keyword "Haozan Service Agreement" through the China Judgments Network show that there are a total of 8 judgments, including 7 judgments and 1 other. From the analysis of the court trial level, there are 3 cases heard by the intermediate people's court and 5 cases heard by the basic people's court; In the past 3 years, there will be 4 in 2022, 2 in 2023, and 2 in 2024; In terms of geographical and court distribution, Guangdong Province ranked first in the country with 4 articles, followed by Jiangsu Province with 2 articles, followed by Shaanxi Province and Liaoning Province with 1 article each.
3. Judicial adjudication viewpoints
Adjudication point 1: The "Haozan Service Agreement" signed by the two parties does not violate the mandatory provisions of laws and administrative regulations, is legal and valid, and is legally binding on both parties, and both parties should fully perform their respective obligations.
Judicial case: The People's Court of Jiangbei New District, Nanjing, Jiangsu Province (2023) Su 0192 Min Chu No. 5253 held in the civil judgment of the first instance of the service contract dispute between a company and Zhou in Nanjing that the "Haozan Service Agreement" signed by the plaintiff and the defendant did not violate the mandatory provisions of laws and administrative regulations, was legal and valid, and was legally binding on both parties, and both parties should fully perform their respective obligations. In this case, the plaintiff provided a "good service package" for the property in the defendant's name, and during the service period, the property involved in the case signed a contract with an agreed intermediary company and completed the transfer procedures. The defendant's refusal to pay 1% of the transaction price of 1,370,000 yuan, i.e., 13,700 yuan, triggered the litigation in this case, so the plaintiff's claim for requiring the defendant to pay a service fee of 13,700 yuan is in line with the agreement and has a legal basis, and this court supports it.
Adjudication Opinion 2: The coexistence of the "Haozan Service Agreement" and the "Housing Sale Entrustment Agreement" are not significantly different in nature, the purpose of the contract is the same, only the commitment to promote the means is strengthened, and the service fee is charged, and the court needs to take the initiative to review whether it is reasonable and compliant.
Reference case: Shenyang Hunnan District People's Court (2021) Liao 0112 Min Chu No. 20818 Shenyang Yijia Real Estate Brokerage Co., Ltd. and Liu Tianhao held in the first-instance civil judgment of the dispute over the entrusted agency sales contract between Shenyang Yijia Real Estate Brokerage Co., Ltd. and Liu Tianhao that the "Haozan Service Agreement" signed by the plaintiff and the defendant clearly stated that the two parties had signed the "Housing Sale Entrustment Agreement", and then the two parties signed another "Haozan Service Agreement", and the two agreements were not significantly different in the nature of the contract, and the purpose of the contract was the same. It was only the plaintiff's commitment to strengthen the means of promotion, and both agreements charged the defendant for services, and whether it was reasonable and compliant was within the scope of the court's review. During the trial, the plaintiff did not provide the court with the House Sale Entrustment Agreement, and in practice, after the defendant and the outsider made the transaction, it signed an intermediary service contract with the buyer and seller to replace it with Shenyang Lianjia Baoye Real Estate Brokerage Co., Ltd., instead of the plaintiff in this case, and the plaintiff did not give a reasonable explanation for this, and the plaintiff admitted in the trial that the intermediary fee paid by the buyer and the seller in the housing intermediary service at 1% of the transaction price was the market price, and the buyer and seller in this case had paid the intermediary fee of Shenyang Lianjia Baoye Real Estate Brokerage Co., Ltd. according to the market price. The plaintiff also sued the defendant to pay the service fee of Haozan (the service fee is 1% of the transaction price), as the plaintiff stated that it and Shenyang Lianjia Baoye Real Estate Brokerage Co., Ltd. are actually the same company, and the company group charged a total of two intermediary service fees for the plaintiff's purchase of the house, which violated the market price and law and violated the principle of fairness under the civil law; If the two companies are independent and only related companies, the court should not support the defendant's request to sign intermediary service contracts with other companies affiliated with the defendant, and this court has reason to suspect that they have circumvented the relevant laws and regulations, and their actions will disrupt the order of the real estate transaction market to a certain extent. On the other hand, from the perspective of evidence alone, the plaintiff failed to provide effective evidence that could prove that it provided the corresponding services in accordance with the Haozan Service Agreement, and that there was a direct causal relationship between the plaintiff's transaction and the services it provided.
4. Administrative cases
5. Lawyer's point of view
Feng Jianbo, a lawyer at Beijing Jingshi (Chongqing) Law Firm, believes that although in current judicial practice, the courts have different determinations on the validity of the Haozan Service Agreement, there should be a relatively authoritative adjudication view in the case database of the people's courts in the future, and maintaining the order of the real estate transaction market in accordance with the law is related to the vital interests of the people and the overall situation of economic and social development.
In the information age where traffic is king, real estate brokerage companies may be subject to corresponding administrative penalties for allegedly violating the "Consumer Rights Protection Law" and the "Anti-Unfair Competition Law" by charging "Haozan Service Fees" in violation of regulations.
According to the second paragraph of Article 19 of the Measures for the Administration of Real Estate Brokerage, real estate information services are part of the brokerage services, and "if two or more real estate brokerage institutions cooperate to carry out the same real estate brokerage business, they can only charge commissions according to one business, and shall not increase the fees to the client".
When signing a contract with a real estate brokerage company, consumers must pay attention to whether the intermediary fee includes the promotion of the Haozan agreement, and if their rights and interests are damaged, they can complain to the local market supervision and administration bureau to protect their rights, or they can entrust a professional lawyer to protect their rights through civil litigation.
Note: All pictures in the article are from the Internet
Lawyer Feng Jianbo, deputy director of the Youth Working Committee of Beijing Jingshi (Chongqing) Law Firm, is a cutting-edge lawyer, a master of law from a double first-class university, and a national second-level psychological counselor. He has worked as a senior executive of a large enterprise in Urumqi, Xinjiang for many years, and worked in the court for one year; In recent years, he has participated in a number of bankruptcy reorganization (liquidation) cases, involving more than 100 million yuan, and has represented more than 100 litigation and non-litigation cases in the field of civil and commercial law. He served as corporate legal counsel for a State-owned Assets Supervision and Administration Commission. At present, he serves as the legal counsel of a number of self-media and the public interest lawyer of the online legal service group of Canggou Township, Wulong County.
Intensive legal affairs in the field of civil and commercial law: marriage and family legal affairs, corporate legal affairs, new media legal affairs.
His academic papers include "Research on the Bearing of Civil Liability for Third Party Tort in Marital Relations", etc., and he has published hundreds of professional articles on new media platforms.