When the developer handles the delivery procedures for the new house, the owner is required to pay the property fee, otherwise the delivery procedure is not given, and some owners who buy a house may encounter such problems when receiving the house. An owner in Hefei was unwilling to pay the property fee and could not get a new house for a long time. Outraged, he sued the developer, Hefei Blu-ray Real Estate Development Co., Ltd., to the court. Recently, the Hefei Intermediate People's Court made a final judgment, and the developer "paid" for its wayward behavior and was ordered to pay more than 130,000 yuan in liquidated damages.
The owner does not pay the property fee The developer refuses to pay the house
On August 30, 2016, Zhang Ming (pseudonym), a citizen of Hefei, signed the Contract for the Sale and Purchase of Commercial Housing with Hefei Blu-ray Real Estate Development Co., Ltd. (hereinafter referred to as Blu-ray Company).
According to the contract, Zhang Ming purchased a house in the Yongjin Peninsula Community in Hefei High-tech Zone, with a total price of more than 2.11 million yuan. Zhang Ming paid by mortgage, the down payment should be paid to the developer before August 30, 2016, and the remaining house payment was used for mortgage loans. The contract stipulates that the developer should deliver the house before July 6, 2019.
After the contract was signed, Zhang Ming paid the house payment to the Blu-ray Company according to the agreement. In December 2018, Blu-ray Company notified Zhang Ming to go through the delivery procedures, and issued to Zhang Ming the "Details of Payment to be Paid", "Information required to be carried by the owner", "Confirmation of Property Transfer" and other materials issued to Zhang Ming with the words "Pre-collection of Property Service Fees" and "Payment of Property Service Related Fees". Due to Zhang Ming's refusal to pay the property fee, the delivery was not completed.
On July 25, 2019, Zhang Ming went to the community to handle the delivery of the house, and the Hefei branch of a service company showed Zhang Ming the entrustment procedures entrusted by blu-ray company to handle the delivery of the house, and told him to pay the property fee before delivery, because Zhang Ming refused to pay the property fee first, the service company refused to deliver the house to Zhang Ming.
Delayed delivery The owner sues the developer
In September 2019, Zhang Ming issued a "Letter on Housing Reminders" to Blu-ray Company, which stated: "I am a customer who buys a house. Your company notified the delivery of the house on December 20, 2018, I went to collect the house on time, but the delivery process finally your company did not give the key, this is the first time to receive the house. The second time I went to collect the house on July 25, 2019 according to the deadline stipulated in the contract, but in the end I was not given the keys." It was not until May 20, 2020, that Zhang Ming got the new house he bought.
Zhang Ming was very angry about the fact that he did not get the new house because he did not pay the property fee, and sued the developer Blu-ray Company to the Hefei High-tech District Court, demanding that Blu-ray Company bear the liability for breach of contract and pay a total of more than 130,000 yuan in liquidated damages for its late delivery.
Zhang Ming believes that he has been told to pay the property service fee first, and he refuses to pay the property fee, and the Blu-ray Company refuses to pay the house to him. Therefore, the responsibility for the failure to deliver the house on time lies with Blu-ray Company, which requires it to pay the property fee before it can receive the house, which is obviously in violation of the contract. Blu-ray's refusal to perform the contractual obligation to deliver the house has seriously infringed on his legitimate rights and interests, and he should pay liquidated damages.
Blu-ray Company believes that it has notified Zhang Ming to come to receive the house, it is Zhang Ming's own reasons that cause him to be unwilling to accept the house, he did not complete the house handover procedures according to the time notified by Blu-ray Company, it is deemed that Blu-ray Company has delivered, and the company does not have overdue delivery.
The developer defaulted and paid a penalty of more than 130,000 yuan
The Hefei High-tech Zone Court held that the "Contract for the Sale and Purchase of Commercial Housing" signed by the two parties is an expression of true intention, and does not violate the mandatory provisions of laws and regulations, and should be legal and valid, and both parties should strictly perform their respective rights and obligations in accordance with the contract. Since the contract stipulates that the seller should deliver the house before July 6, 2019, Blu-ray Company should deliver the house to Zhang Ming before that date.
Now Zhang Ming has paid all the house payment to Blu-ray Company, fulfilled all the contractual obligations, and the delivery time of the house agreed in the contract has long exceeded, Blu-ray Company is responsible for the failure of the house to be delivered on time, and should handle the house delivery procedures for Zhang Ming on schedule after receiving the house payment, but the Blu-ray Company requires Zhang Ming to pay the property fee first when notifying Zhang Ming to handle the delivery procedures and entrusting the property company to deliver the house, which in turn leads to the delay in delivery of the house involved in the case. The payment of property fees in advance was not stipulated in the contract for the sale and purchase of commercial housing between the two parties, whether the property fee was paid or not was a different legal relationship from the contract for the sale and purchase of housing, and the behavior of Blu-ray Company did not follow the principle of good faith, which constituted a breach of contract and should bear the liability for breach of contract.
Accordingly, the first instance held that Blu-ray Company should pay Zhang Ming a liquidated damages for late delivery of the house, which is based on the house payment paid by Zhang Ming, calculated according to the standard of two-tenths of a millionth of a day, and calculated from July 7, 2019 to the date of actual delivery of the house, that is, 134319 yuan.
The court of first instance ruled that Hefei Blu-ray Real Estate Development Co., Ltd. paid Zhang Ming 134319 yuan in liquidated damages for late delivery.
Add additional delivery conditions Developers should be careful
The reporter learned that after the first-instance judgment was pronounced, Blu-ray Company filed an appeal. The Hefei Intermediate People's Court held in the second instance that the payment of the property fee was not the premise or necessary condition for the parties to handle the housing handover procedures agreed in the contract between the two parties, so Zhang Ming failed to successfully collect the house, and Blu-ray Company was at fault. The second instance rejected the appeal and upheld the original judgment.
According to this, Li Jun, a lawyer at Anhui Yuansheng Law Firm, said that when handing over the house, some developers have added additional conditions such as paying property fees, and the owners often do not think much about them when facing these additional conditions, choose to accept the conditions, and take the house as soon as possible, however, in fact, some developers have added these additional conditions that are not stipulated in the purchase contract, "Paying the house on time is the responsibility of the developer, it is the obligation stipulated in the contract, and the payment of the property fee is the relationship between the owner and the property company, and the two are two legal relationships, which are two different things." ”
Li Jun said that the developer added additional delivery conditions to allow the owner to complete the conditions other than the contract before delivering the house, which must not be, after constituting a breach of contract, the owner can protect his rights and interests through litigation.
Source: Anhui Business Daily
Source: Anhui Traffic Radio