legal master

Chapter 35 Questions and Answers on the Evidence of Disputes over House Sale and Demolition (1)
Real estate sale
1. In real estate cases, how do judges make decisions in accordance with the rules on the burden of proof?

In 2002, Hai signed a contract with a real estate company to purchase commercial housing. The contract stipulated that the house should be handed over by the end of December of the same year. If the house was overdue for more than 12 days, Hai could terminate the contract.The real estate company notified Hai to take over the building when it was time to hand over the house, but there was no completion acceptance certificate, so Hai refused to take over the building. At the beginning of 30, Hai filed a lawsuit in the People's Court, demanding that the contract be terminated and the purchase price returned.Hai claimed that: In September 2004, he wrote to the real estate company, requesting to terminate the contract and refund the purchase price he had paid, but was rejected; The company requested to terminate the contract (with postal and telecommunications receipts as evidence), but the other party ignored it.During this period, Hai also made inquiries and complaints to the Construction Bureau and the notary office.During the litigation process, the real estate company admitted that it had received letters, phone calls and faxes from Hai, but denied that Hai made a request to terminate the contract in the letters, phone calls and faxes.Hai asked the other party to take out the received letters and faxes to read, but the other party said they did not save them.Under such circumstances, the real estate company believed that Hai could only confirm that he had contacted him, but could not prove that he had requested to terminate the contract in letters, faxes, or phone calls. Therefore, he requested the court to reject Hai's claim.

Analysis according to law
In this case, the question of great value for discussion is: when Mr. Hai has presented evidence to prove that he has negotiated with the real estate company on the contract many times, and the real estate company has also admitted that he has received letters, faxes and telephone calls from Mr. Hai, how should the judge respond? Ascertain and judge the fact that the contract between Hai and the real estate company was terminated, and how to judge according to the burden of proof.

The burden of proof refers to the risk of losing the lawsuit that the parties should bear when they cannot provide evidence to prove or the evidence provided cannot fully prove the existence of the facts of the case they claim, so that the authenticity of the facts of the case is unclear.The burden of proof not only restricts the result of the judgment, but also regulates the proof of the facts of the case and the submission of evidence.For example, the court serves a notice of proof to the parties and starts the investigation of the facts of the case, while the parties provide evidence and exchange evidence according to the burden of proof. The directional mechanism plays a centripetal role in unifying the litigation behaviors of all parties (including judges' adjudication behavior) in fact determination.

A basic concept that must be emphasized here is: when the truth of the case is unclear, it is only a last resort for judges to judge according to the burden of proof, and it is only a helpless last choice when there is no other way to determine the truth of the case.In this case, the judge may face the following options:

First, judge directly based on the burden of proof, and rule against Hai when he cannot fully prove that the contract has been terminated.

Second, based on Hai’s preliminary evidence and in light of the actual circumstances of the case, the judge conducted an investigation upon application or ex officio.For example, investigate the content of the fax with the Telecommunications Bureau and other agencies, and investigate the complaints with the Construction Bureau and other agencies that have accepted Hai’s complaint.In addition, since the real estate company actually controls the letters and faxes it receives, the judge can also order it to produce this key evidence.Then, the judge makes a judgment based on the facts ascertained.

Third, when the contents of the letters, faxes, and telephone calls could not be confirmed after the court investigation, and the real estate company refused to submit the letters and faxes with various excuses, the judge made a common-sense factual presumption based on empirical rules and combined with the preliminary evidence provided by Mr. Hai.

In this case, when the defendant has admitted to receiving the plaintiff's letter and fax, it is not enough to simply deny that the content of the letter is that the plaintiff notifies him to terminate the contract.Because, even as an ordinary person, he would not be so stupid as to believe the letters and faxes between a real estate development company and a home buyer, not to talk about the contract between them, but to talk about other meaningless things. topic, especially if there is no other legal relationship between the buyer and the real estate development company other than the relationship between the sale and purchase of the house.Who would believe the subterfuge if the real estate company said that the plaintiff chatted with him in letters and faxes about topics other than the contract?

Now that Mr. Hai has provided preliminary evidence on the facts of the case, that is, he had contacted the other party by letters, faxes, and telephones many times before the lawsuit. The other party also admitted that there was such contact, but denied the fact that it was involved in the termination of the contract.Therefore, the judge must judge at this time: whether the multiple contacts between Hai and the other party involved the termination of the contract.The judge should make a corresponding judgment based on the important preliminary evidence provided by Hai, combined with common sense of life and rules of thumb.If Hai could not even provide the preliminary evidence of his previous negotiation with the other party on the contract issue, and the judge could not learn the fact through necessary investigation methods, then there is no doubt that the judge should make a judgment based on the burden of proof and rule that Hai lost the case.

tips

This case involves the completion acceptance certificate when taking over the building.At present, the acceptance certificate for construction projects is generally no longer issued, but the completion acceptance record form is replaced. In some places, developers are required to issue both the construction project acceptance certificate and the completion acceptance record form when handing over the house.Therefore, if the developer fails to have the construction project acceptance certificate or completion acceptance record form when delivering the house, the house does not meet the statutory conditions for delivery, and the buyer can pursue the developer’s liability for breach of contract according to the contract.

2. It is suspected that there is a problem with the formation time of the house purchase documents. Can the writing time be identified?
Plaintiff Liu claimed that I purchased a commercial house from the defendant in July 2003.All the money has been paid to the defendant, but the defendant only issued a receipt to me. I asked the defendant for an invoice many times, but the defendant refused for various reasons.

The defendant, a real estate company, argued that our company had already prepared the purchase invoice, but the plaintiff did not pay the down payment according to the time stipulated in the contract, and has owed our company more than 6000 yuan in interest and liquidated damages.Due to repeated negotiations between the two parties, our company agreed to the plaintiff to pay interest and liquidated damages of 2000 yuan. The plaintiff also recognized and issued an IOU. However, because the plaintiff has not fulfilled this obligation on time, the house purchase invoice has not been handed over to the plaintiff.The plaintiff is still required to hand over the house purchase invoice to the plaintiff after paying the arrears.

Plaintiff Liu believed that the part of the IOU above the IOU was not my handwriting, but the signature underneath was mine.So, how to determine the evidentiary effect of the IOU and the house purchase receipt in this case?Can the plaintiff request handwriting identification to prove the falsity of the IOU?
Analysis according to law
In this case, although Liu has a receipt as evidence, the most important thing is that the other party has an IOU with Liu's autograph on it. Therefore, the receipt in Liu's hand cannot prove that he does not owe the other party money.If Liu wants to prove this point, other relevant evidence is needed to prove it.That is, Liu must find a way to prove that the receipt in his hand is the "liquidated damages" mentioned in the IOU.Otherwise, Liu is likely to lose the lawsuit.

For handwriting identification, the author thinks it doesn't play much role.Because the signature is Liu's autograph after all.If the content on the IOU and the writing time sequence of the signature can be identified, it will be more beneficial to Liu.That is to say, if it can be identified that the signature on the IOU is first and the written content later, this is against the convention, and if this is the case, it can support Liu's claim.

tips

Due to the high complexity and high risk of writing time appraisal, there are only a few companies in the country that can do writing time appraisal, so the fees are relatively high. No local identification could be found.The general appraisal fee is more than several thousand yuan, so you must be mentally prepared when preparing for this appraisal.

3. In the face of house shrinkage, how to find evidence in a lawsuit?

The plaintiff stated that the area of ​​a commercial house purchased in 2003 was 109.54 square meters. After purchasing the house, the plaintiff asked the relevant department to measure the actual area of ​​the house. The result was that the actual area was only 106.71 square meters, a decrease of 2.58%.The plaintiff negotiated with the developer several times, asking it to return the overcharged house payment, but was rejected. Therefore, the plaintiff requested the court to order the defendant Real Estate Development Corporation to return the overcharged house purchase price of 13584 yuan and pay interest according to the relevant bank interest rate standards.

Analysis according to law
The "Commercial House Sales Management Measures" that came into effect on June 2001, 6 stipulates that for pre-sale houses priced by units (units), real estate development companies should attach the floor plan of the house to be sold to the contract.The plan shall indicate the detailed dimensions and agree on the margin of error.When the house is delivered, the housing type is consistent with the design drawings, and the relevant dimensions are also within the agreed error range, and the total price remains unchanged; if the housing type is inconsistent with the design drawings or the relevant dimensions exceed the agreed error range, the treatment method is not stipulated in the contract , the buyer can check out or re-negotiate the total price with the real estate development company.If the buyer checks out, the real estate development company shall bear the liability for breach of contract.

If the price is calculated according to the building area of ​​the suite or the building area, the parties shall specify in the contract how to deal with the discrepancy between the area agreed in the contract and the area registered in the property right.

If there is no agreement in the contract, it shall be dealt with according to the following principles:
(1) If the absolute value of the area error ratio is within 3% (including 3%), the housing price shall be settled according to the actual situation.

(2) When the area error exceeds 3% of the absolute value, the buyer has the right to check out.

If the buyer checks out, the real estate development enterprise shall return the house price already paid by the buyer to the buyer within 30 days from the date when the buyer proposes to check out, and pay the interest on the house price paid at the same time.If the buyer does not check out, if the property registration area is larger than the area stipulated in the contract, the buyer will make up for the part of the house price within 3% (including 3%) of the area error ratio; The property right belongs to the buyer.

When the property registration area is smaller than the area stipulated in the contract, the real estate development company will return the housing price to the buyer for the portion of the area error ratio within 3% (including 3%) of the absolute value; double return to the buyer.

The above-mentioned treatment methods for "shrinking area" agreed in the contract and those not stipulated in the contract provide a set of effective rules for better solving the problem of "shrinking area", which will greatly reduce the legal dispute.

tips

The national "Real Estate Measurement Standards" promotes the approval system for the pre-sale area. Before pre-sale of commercial housing, the developer must first obtain the approval and confirmation of the public area allocation method from the real estate commercial housing management department, and then go to the real estate surveying and mapping department to conduct pre-sale area calculations. Apply for a pre-sale permit for pre-sale.Whether it is the sales area of ​​commercial housing or the usable area of ​​commercial housing, only through property registration can it be recognized by the state and protected by law.The sales area or construction area of ​​commercial housing becomes the area of ​​commercial real estate right after the registration of property rights, and before registration, it must be re-checked by the real estate surveying and mapping department.Therefore, the nuclear test results of specialized surveying and mapping departments are important evidence.

4. Who shall bear the burden of proof if the owner thinks that the house height is insufficient?
In March 2003, the owner, Ms. He, signed a commercial housing sales agreement with a real estate development limited liability company to purchase a set of off-plan housing.In the annex to the contract, the condition of the house was stipulated, but there was no agreement on the height of the house.Ms. He accepted the house after paying the house payment as agreed, but later she found that the bedroom height of the house was only 3 meters and moved out.

Ms. He believes that the height of the house is only 2.4 meters, which does not meet the design requirements of the residential design code issued by the Ministry of Construction.For this reason, she took the developer to court in May 2004, requesting the court to order the developer to replace her with a house that meets the residential design specifications and quality, and compensate her for the economic loss of renting a house outside.

Analysis according to law
The key to this case lies in the design norms concerning the height of the building, because the two parties did not agree on the height of the building in the purchase and sale agreement, so from the point of view of the contract, it is impossible to prove that the developer has breached the contract.The developer believes that the house delivered by it meets the design specifications, and its house height does not violate the relevant mandatory regulations.If Ms. He wants to prove her claim, she should come up with the mandatory norms that prove the design of the building's floor height, and issue an appraisal conclusion.

根据国家质量技术监督局和建设部联合发布的《住宅设计规范》的有关规定，普通住宅层高宜为2.80m；卧室、起居室（厅）的室内净高不应低于2.40m，局部净高不应低于2.10m，且其面积不应大于室内使用面积的1／3；利用坡屋顶内空间作卧室、起居室（厅）时，其1／2面积的室内净高不低于2.10m；厨房、卫生间的室内净高不应低于2.20m。厨房、卫生间内排水横管下表面与楼面、地面净距不得低于1.90m，且不得影响门、窗扇开启。这里的层高是指上下两层楼面或楼面与地面之间的垂直距离。室内净高是指楼面或地面至上部楼板底面或吊顶底面之间的垂直距离。

tips

Here is a reminder for house buyers to pay attention to the fact that in the future when signing a house sales contract, you must consider your rights thoroughly, and write your own opinions into the contract in black and white to avoid suffering the same experience as Ms. He in the future.

5. How to determine the measurement standard when there is a dispute over the area of ​​the house?

On August 2003, 8, the plaintiff paid 5 yuan to the defendant for the purchase of a house and purchased a set of commercial housing owned by the defendant.At that time, the defendant claimed that the area of ​​the house was 38 square meters. At the beginning of 97, other buyers in the building discovered that the actual area of ​​the purchased house did not match the area stipulated by the defendant when selling the house. The plaintiff sued for the return of the house, and the defendant returned the purchase price of 2004 yuan.

Analysis according to law
According to the national standard "Real Estate Measurement Specifications", the measurement standards of housing area are as follows:

1. The sales area of ​​commercial housing is the sum of the building area of ​​the apartment or unit purchased by the buyer (hereinafter referred to as the building area of ​​the apartment) and the public building area that should be apportioned.

The sales area of ​​commercial housing = the building area in the suite + the apportioned public building area.

2. The built-up area of ​​the apartment consists of the following three parts: (1) the usable area of ​​the apartment (unit); (2) the area of ​​the inner wall of the apartment; (3) the building area of ​​the balcony inside the apartment.

3. The calculation principles of each part of the building area in the suite are as follows: (1) The usable area in the suite (unit).The housing shall be calculated according to the method stipulated in the "Residential Design Code".For other buildings, it shall be calculated according to the method specified in the special building design code or by referring to the "Residential Design Code". (2) The area of ​​the inner wall of the set.There are two types of maintenance or load-bearing walls around the use space in each set (unit) of commercial housing, including shared walls and non-shared walls.The partition wall between each suite (unit) of commercial housing, the partition wall between the suite (unit) and the public building space, and the outer wall (including the gable wall) are all shared walls, and half of the horizontal projected area of ​​the total wall is included in the suite The area of ​​the inner wall.The horizontal projected area of ​​the non-shared wall is all included in the area of ​​the inner wall.

(3) The construction area of ​​the balcony in the suite is calculated according to the horizontal projected area between the periphery of the balcony and the exterior wall of the house.

(4) The formula for calculating the building area in the suite is: building area in the suite = usable area in the suite + wall area in the suite + building area of ​​the balcony in the suite.

4. The public building area consists of the following two parts: (1) Elevator shafts, staircases, garbage lanes, transformer rooms, equipment rooms, public halls and corridors, basements, guard rooms on duty and other functions that serve the entire building The building area of ​​public rooms and management rooms, etc.; (2) Half of the horizontal projected area of ​​the partition wall between the suite (unit) and the public building space and the outer wall (including the gable wall).

5. Calculation principle of public building area.Basements, carports, etc. that have been sold or leased as independent space should not be included in the public building area.The basement as a civil air defense project does not include the public building area.

The public building area is calculated according to the following method: the building area of ​​the whole building is deducted from the sum of the building areas of each set (unit) of the whole building, and the basement, carport and civil air defense works that have been sold or leased as independent space are deducted The construction area is the public construction area of ​​the entire building.

tips

Because the measurement process is long and the calculation is complicated, it is unlikely that the owner will participate in the measurement.In order to enhance transparency, the developer should have detailed information on the shared parts for the owners to check.If the buyer really has evidence and feels that the indoor area is small, he can apply for a review to the real estate property right department, request the original surveying unit to retest, and also apply to the higher-level surveying and mapping department for review.

6. What are the reasons for the "legal" shrinkage of housing area?
Xu bought an off-plan house two years ago, and the construction area agreed in the contract was 76 square meters.During property rights registration, it was found that the total construction area of ​​the house remained the same as originally agreed, but the usable area was reduced from 59 square meters to 56.8 square meters, and the shared area increased from 17 square meters to 19.2 square meters.Xu felt angrily that I couldn't measure whether the shared area had increased; the usable area decreased by 2.2 square meters, which was a real loss for us.According to the contract, the developer did not breach the contract and does not need to bear the liability for breach of contract.Shrinking housing area is legal, and home buyers can only be dumb and have nothing to say about their suffering.

Analysis according to law
(End of this chapter)