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Chapter 36 Questions and Answers on the Evidence of Disputes over House Sale and Demolition (2)
Developers generally sell based on the building area of ​​the house.The construction area of ​​a house includes the construction area of ​​the suite and the shared area. The construction area of ​​the suite is the sum of the usable area of ​​the suite, the area of ​​the wall inside the suite and the construction area of ​​the balcony.The so-called shared area is the construction area of ​​the entire house minus the interior construction area of ​​the entire house, and deducts the construction area of ​​the basement, business houses, carports, and civil air defense projects that have been sold or leased as independent space.Divide the public construction area of ​​the whole house by the sum of the internal construction areas of the whole house to get the public construction area apportionment coefficient of the house, and the public area that should be shared by each house buyer is the public construction area apportionment coefficient multiplied by Take the building area within the suite.

Article 20 of the "Measures for the Administration of Sales of Commodity Housing" stipulates that if the price is calculated according to the building area or the building area of ​​the suite, the parties shall specify in the contract how to deal with the error 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:

(3) If the absolute value of the area error ratio is within 3% (including 3%), the house price shall be settled according to the actual value; (30) When the area error ratio exceeds the absolute value of 3%, 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 3 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 area error ratio is equal to the property registration area minus the contracted area, divided by the contracted area and multiplied by [-]%).

This situation often occurs in practice, the construction area of ​​the house has not changed or the change is very small, within the range of 3% stipulated in the contract, while the construction area of ​​the suite has decreased and the shared area has increased.In this case, the developer did not breach the contract and does not need to bear the liability for breach of contract, but it is obvious that the interests of the buyers have been damaged without any compensation, which is very unfair to the buyers.

There are two possibilities for this situation, one is the developer's normal error in the construction process; the other is the developer's malicious behavior in the accounting area.In the former case, it is the developer’s technical error in the construction process, which is a loss that should be borne by the developer itself. It is obviously wrong to let the buyer bear the unfavorable consequences; for the latter case, then It is a typical fraudulent behavior. If there is evidence, the developer should bear legal responsibility.

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How to avoid or reduce the loss of buyers?

First, when signing a house purchase contract, the buyer may request to sign a supplementary agreement with the developer in accordance with the provisions of Article 21 of the "Commercial Housing Sales Management Measures", agreeing that the building area of ​​the house remains unchanged but the scope of the error in the building area of ​​the suite, the ultimate Well it's around 1%.If the scope agreement is too large, it will lose the meaning of restricting developers.In this way, when the error of the building area in the suite is greater than the agreed range when the house is handed over, the buyer has the right to terminate the contract or require the developer to pay liquidated damages.

Second, the actual utilization rate of the house is stipulated in the supplementary agreement, that is, the ratio of the usable area to the construction area in the suite.Buyers can agree on the ratio initially promised by the developer, because the developer generally promises a relatively high utilization rate in order to attract buyers.If the developer agrees to sign such a supplementary agreement with the buyer, then for the buyer, there is no big risk in the area of ​​the house.

7. What should I do if I lose the purchase contract?
Huang bought a house in Chaoyang District of a certain city. After signing the house purchase contract, Huang lost the contract he kept.Huang heard that without a contract, he will not be able to apply for a house property certificate in the future, and if there is a dispute with the developer, he will not have any evidence in his hand.If this is the case, what should Huang do?
Analysis according to law
After the house buyer and the developer sign the house purchase contract, the contract is the legal certificate to prove that the house buyer has purchased the house.A complete house purchase contract generally has four copies: two for the developer, one for the record with the housing management department, and one for the buyer.If the buyer wants to apply for a bank mortgage, the contract owned by the buyer must be placed in the bank.When the developer handles the property right certificate of the house, he needs to get all four contracts to the housing management department before he can handle the property right certificate, and any one of them will not work.Therefore, home buyers must keep their home purchase contracts properly. If they are lost, they must take corresponding remedial measures in a timely manner. The remedial measures taken in different periods are different, and can be roughly divided into the following three types:
[-]. Before the pre-sale registration of the house purchase contract, if the house buyer loses the contract, he only needs to void the remaining contract and sign a new contract with the developer.The fee that the buyer needs to pay is the cost of a contract.

[-]. After the pre-sale registration of the house purchase contract is completed and the bank mortgage is not started, if the house buyer loses the contract, the measure to be taken is to publish a statement in the newspaper that the contract is invalid. After the expiration, take the newspaper to do the pre-sale registration The agency applies for the cancellation of the signed contract, and then signs a new contract with the developer, and then goes for pre-sale registration.During this period, the buyer needs to pay the cost of publishing the statement, the cost of the contract, and the stamp duty of the new contract.

[-]. After the pre-sale registration of the house purchase contract has been completed and the bank mortgage has been handled, if the house buyer loses the contract, in addition to the procedures for the second case, the house buyer must also sign a change agreement with the bank that handles the loan , and put the new contract in the bank, because the original house purchase contract has been canceled and replaced with a new contract, that is to say, the contract number in the loan contract signed by the house buyer and the bank has changed, although the house purchase contract The content of the loan has not changed, but according to the "Contract Law", the loan contract has been changed, so it is necessary to sign a change agreement with the bank.The fees that buyers need to pay during this period are basically the same as those in the second case.

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What needs to be reminded for home buyers is that in the whole process of buying a house, the contract often needs to be handed over, and the loss of the contract does not always happen to the home buyer. Sometimes the developers, lawyers, and banks will lose the contract due to negligence. .Therefore, at the same time of handing over the contract, the other party must be required to issue a written certificate to prove that he has handed over the contract to the other party.Otherwise, once the loss is found, everyone will shirk responsibility from each other, and it will be the buyer who will suffer in the end.

8. Who should bear the burden of proof if there is a dispute over purchasing a house on behalf of someone else?
In February 2003, He's unit wanted to build a fund-raising house for employees. On February 2, He was entrusted by his brother-in-law Li who was working in other places, and bought a house in Li's name at his work unit.The house payment was delivered by He to the unit.Since then, He has renovated the house on behalf of Li. On November 2, 8, Li died on duty.After Li's funeral was settled, He asked Li's wife, Chen, to pay him the house payment on the grounds that he had paid for the house on behalf of Li, but Chen refused.He Mou then filed a lawsuit to the court, requesting the court to rule that Chen Mou pay all the house purchase money he advanced.During the trial, the court found that who paid the money, and neither party had sufficient written evidence, so who should bear the burden of proof in this case?

Analysis according to law
First of all, it is necessary to clarify the legal relationship in this case.In this case, the plaintiff, He Mou, involved two contractual relationships in the process of buying a house on behalf of the defendant: one is from the perspective of external relations, He Mou represented Li Mou to buy a house, and the relationship between the unit and the unit is a house sale contract; In terms of relationship, the relationship between He and Li is a civil agency relationship.As far as the housing sales contract is concerned, the parties can provide evidence to prove that the unit has received the housing payment, and there is no dispute in the external sales contract, so this case is not a sales dispute; There was a problem with the performance of the contract.

Secondly, it is necessary to clarify the rights and obligations of both parties to the agency contract.The rights and obligations of both parties in the domestic agency contract in this case: For the plaintiff, He, his right is to collect the house payment paid by Li. request.He’s main obligation is to represent Li to sign a housing sales contract with the unit, pay the house payment to the unit on Li’s behalf, and handle other matters related to the house purchase; for Li, his main obligation is to hand over the house purchase money to He , and then He Mou will hand over the money to the unit on his behalf. If He Mou advances the money during the agency process, Li Mou should actively pay He Mou.So who paid for this house, He or Li?

According to Article 1, Paragraph 2 of the Supreme People's Court's "Several Provisions Concerning Evidence in Civil Procedures": "Where there is a dispute over the performance of a contract, the party with the obligation to perform shall bear the burden of proof." Because the party denying the existence of rights The parties shall bear the burden of proof for the fact that the right is extinguished, and the contract obligation is extinguished by one party's performance, so the party with the obligation of performance shall bear the burden of proof for the fact that the contract is not performed or the fact that the contract cannot be performed: (3) The contract has been performed If the contract is completed, the party with the obligation to perform shall bear the burden of proof for the fact that the contract has been performed. (4) During the performance of the contract, if the creditor fails to notify the debtor due to division, merger or change of domicile, resulting in difficulties in performance, the party with the obligation to perform shall bear the burden of proof for the fact that the contract is difficult to perform. ([-]) When the party who should perform the debt first suspends performance due to the emergence of statutory reasons, it shall bear the burden of proof for the fact that the other party has one of the following circumstances: first, the business situation has seriously deteriorated; second, the transfer of property, withdrawal of funds , in order to evade debts; third, loss of business reputation; fourth, loss or possible loss of the ability to perform debts under other circumstances. ([-]) If the party with the obligation to perform the contract requests early or partial performance of the debt without prejudice to the interests of the creditor but is rejected by the creditor, it shall bear the burden of proof for the fact of early performance, partial performance and the fact that the creditor refuses.

In the agency contract between the plaintiff and the defendant in this case, according to the analysis of the above-mentioned legal relationship, Li has the burden of proof to prove that he has delivered the purchase price to He. Li and Chen's husband and wife dispose of the joint property, so the responsibility should be borne by Li's spouse, Chen.Now Chen cannot prove the above facts, so according to the provisions of Article [-] of the "Several Provisions of the Supreme People's Court on Evidence in Civil Procedures", he should bear the legal consequences of unfavorable evidence.

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The case also involved the burden of proof in the event of a dispute over agency rights.The person who claims the existence of rights shall bear the burden of proof for the facts of the case where the rights arise.Therefore, in any dispute arising from the power of agency, the party claiming the power of agency shall bear the burden of proof. (1) Evidence of the basis for the occurrence of the power of attorney.The basis for the occurrence of agency rights such as statutory agency, entrusted agency, and designated agency. (2) Evidence of the scope of the power of attorney.In terms of time, whether the agency right has been terminated; in terms of the scope of authorization, whether the authority of the agency has been exceeded. (3) Burden of proof for apparent agency.Apparent agency means that although the actor does not have the right of agency, the behavior of the principal has caused enough signs that the bona fide counterparty has objective and sufficient reasons to believe that the actor has the right of agency, so the principal should bear the consequences and A proxy for responsibility.In disputes arising from apparent agency, the person claiming the right of agency shall prove the following facts in the apparent agency: First, the perpetrator has committed an act of agency without authority.That is, although there is no agency right, the contract is signed in the name of the principal.Second, based on certain facts, the relative believes or thinks that the actor has the power of agency, and based on this understanding, he signs a contract with the actor.For example, the principal knows that the actor concluded the contract in his own name but does not deny it; the actor holds a letter of introduction from a certain unit, a blank contract, etc.Third, the counterparty must be subjectively good-faith and free from fault.Fourth, the contract signed between the agent without the right and the counterparty should meet the general conditions for the validity of the contract.

9. Do real estate advertisements have evidentiary effect in real estate disputes?
Aiming at the advertisement that the distance between the buildings in the community is 50 meters, and the greening rate of the community is 50%, some citizens of a certain city successively bought commercial houses in a certain community to live in.Unexpectedly, the developer changed the architectural plan two years later, and the distance between the buildings was only 30 meters.For this reason, dozens of homeowners filed lawsuits over commercial housing pre-sale contract disputes, requiring developers to pay a total of about 40 yuan in liquidated damages for unauthorized changes to the community planning.

Analysis according to law
There are many real estate disputes at present, and many house buyers regret listening to the advertisements. The actual housing conditions are quite different from the descriptions in newspaper advertisements.So, what kind of legal effect does housing advertisement have?What if the developer cannot fulfill the promise in the advertisement?Can homebuyers hold them accountable based on what's advertised?

The legal effect of housing advertisements is mainly analyzed according to the nature of advertisements.

Some developers will write certain clauses in the advertisement that promise buyers into the formal "house purchase contract". At this time, it is no longer an advertisement, but a contract clause, and its legal effect is clear and effective.But at the same time, there are also some advertising slogans that cannot or have not been turned into contract terms. Generally speaking, these advertisements only constitute an invitation to make an offer and are not legally binding.

What is an invitation to treat?Article 15 of my country's "Contract Law" stipulates that "an invitation to make an offer is an expression of intention to hope that others will make an offer to oneself. The price list, auction announcement, tender announcement, prospectus, commercial advertisement, etc. sent are the invitation to make an offer."The developer publishes the above-mentioned advertisement only to attract people's attention, and the sole purpose is to attract customers to call themselves and make offers.As for whether it is an "ideal residence" or a "preferred place to live in", it is entirely up to the customer to know and decide. The developer has not made any promises, so there is no need to take responsibility for it.

However, some advertisements are completely different, indicating the price, location, decoration conditions, property management conditions, supporting facilities and equipment, gifts or discounts, etc. We believe that these advertisements have constituted an offer and are legally binding . Article 14 of the "Contract Law" stipulates: "An offer is an expression of intention to conclude a contract with another person. Intention expresses restraint.” The advertisement that constitutes an offer is an expression of intention to conclude a contract with others, how is it different from the advertisement that constitutes an invitation to an offer we mentioned above?The difference between them lies in whether the content is specifically determined and whether the developer is bound by the advertisement. A general advertisement is only an invitation to make an offer, but if it really has important aspects such as housing quality, price, location or supporting facilities, gifts, etc. If it is clearly stated, and it is true that these aspects play a large role in the buyer's final purchase decision, then its content can be considered concrete.The contents of these advertisements are aimed at customers who purchase their houses, indicating that as long as the client signs a house sales contract with the developer and the two parties have no other intention to change the contents of the advertisement, the developer should be bound by the advertisement and provide the client with the information provided in the advertisement. benefits and convenience.

Article 15 of the "Contract Law" stipulates that "if the content of a commercial advertisement conforms to the provisions of an offer, it shall be deemed an offer." This kind of advertisement is no longer a simple invitation to make an offer, but a kind of offer.

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Since the content of the advertisement was not written in the contract, many problems were caused.The developer fails to fulfill its promise in the advertisement on the pretext that there is no stipulation in the contract, which is a performance that does not pay attention to commercial reputation.Therefore, it is recommended that the majority of house buyers should clearly write some of the conditions in the advertisement in the house purchase contract, so as to avoid unnecessary troubles and better protect their legitimate rights and interests.

10. How to provide evidence for the co-construction of houses?
Wei worked in a village committee. In March 1995, the village committee applied to the township land planning department to build 3 workshops on the former site of the village's pig farm.In August of the same year, the village committee appointed Wei to organize the construction.During this period, the village committee allocated 25 yuan in six installments for housing construction. At the end of 8, 6 workshops were built, but because there was no suitable project, the workshops were idle for 10 years. In August 1996, the village committee rented out the above-mentioned houses until now.

In 2003, Wei filed a lawsuit with the People's Court for the return of property, claiming that the above-mentioned factory building was originally approved by the village committee and lent him 10 yuan for building the house, but only declared in the name of the village committee; The village committee claimed that the house belonged to them, and they had no objection, but except for the payment from the village committee, the rest was their own investment in building the house, and the village committee should return it.

During the trial, the court found that: Wei and the village committee did not reach any written or oral agreement on the construction of the disputed house. Wei claimed that he had borrowed 10 yuan from the defendant to build the house, but did not provide corresponding evidence. The nominal investment of more than 18 yuan was used to build a house, and there was insufficient proof.

Analysis according to law
(End of this chapter)