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Chapter 41 Questions and Answers on the Evidence of Disputes over House Sale and Demolition (7)
For ordinary house buyers, there is a certain time difference between buying a house and signing a house purchase contract. After some house buyers reserve a house, they fail to negotiate with the developer on certain contract terms and thus fail to sign the contract. Can the deposit be paid at this time? The recovery has a lot to do with the order book signed by the buyer.Therefore, before paying the deposit, the buyer should carefully check the order book provided by the developer and signed by the buyer.

If there is no sentence on the order book that states whether the deposit will be returned if the purchase contract is not signed successfully, the buyer can recover the deposit through legal procedures.If the order book says "The buyer should sign the house purchase contract with the developer within × days from the date of signing the order book, and the overdue deposit will not be refunded", the house buyer should be careful, because it means that the house buyer is not in In the case of signing a house purchase contract within the stipulated time, it is very likely that the deposit will not be recovered.Therefore, when a house buyer sees these terms that are not conducive to him, he should ask the developer to make appropriate revisions before signing.In addition, the buyer had better agree with the developer in the order book: "In the process of signing the contract, if the two parties fail to negotiate on the relevant contract terms, the developer should return the deposit."

26. If the note on the property certificate is not clear, can the property owner sue the Housing Authority?

In 2003, Ji bought a house, and the developer handled the property right certificate on his behalf, and submitted the invoice and other materials along with the application. According to the application, the Real Estate Administration Bureau of City Y issued a certificate of property rights, which recorded the area of ​​Ji’s main house and recorded an overhead floor, but did not indicate the area of ​​the overhead floor.Ji believed that he had the right to require the area of ​​the overhead floor to be indicated on the real estate certificate, so he filed an administrative lawsuit with the court. The Court of Y City made a first-instance judgment and supported the plaintiff's claim.

Analysis according to law
This case is an administrative lawsuit, which is what the common people call "the people sue the government".Administrative litigation refers to the litigation caused by citizens, legal persons or other organizations objecting to the administrative acts of administrative agencies.

In an administrative lawsuit, the plaintiff bears the following burden of proof: ([-]) to prove that the prosecution meets the statutory requirements, except that the defendant believes that the plaintiff’s lawsuit has exceeded the time limit for filing the lawsuit; ([-]) in the case of suing the defendant’s inaction, to prove the fact that he filed the application; ([-]) In the administrative compensation lawsuit brought together, to prove the fact that the loss was caused by the infringement by the accused act; ([-]) Other matters that should bear the burden of proof for the plaintiff.

According to Articles 32 and 43 of the "Administrative Procedure Law", the defendant bears the burden of proof for the specific administrative action taken, and shall, within ten days of receiving the copy of the complaint, provide the basis for the specific administrative action being sued. All the evidence and the normative documents on which it is based.If the defendant fails to provide evidence or provides evidence beyond the time limit without justified reasons, it shall be deemed that there is no corresponding evidence for the specific administrative act sued.If the defendant is unable to provide evidence within the time limit specified in the preceding paragraph due to force majeure or other legitimate reasons that are objectively beyond his control, he shall submit a written application to the people's court for delay in providing evidence within ten days of receiving the copy of the complaint.If the people's court grants the extension, the defendant shall provide evidence within [-] days after the just cause disappears.If it is provided after the time limit, it will be deemed that there is no corresponding evidence for the specific administrative action being sued.

In this case, when issuing certificates, the defendant has the duty to review all the materials submitted by the opposing party.However, although the defendant indicated the issue of an overhead floor when issuing the certificate, he did not verify the area according to his authority, which shows that the defendant had noticed the content of the certificate issued by the plaintiff, but did not examine it in detail.Therefore, if the defendant did not submit the relevant laws and regulations that do not need to record the area of ​​the overhead floor when issuing the certificate within the statutory time limit.Then the court may rule that the defendant shall indicate on the above-mentioned real estate certificate the area of ​​the overhead floor of the house owned by the plaintiff within a reasonable period of time after the judgment takes effect.

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Under what circumstances can ordinary people sue officials?Citizens, legal persons and other organizations may file an administrative lawsuit if they are dissatisfied with the following specific administrative acts:
(1) Those who refuse to accept administrative penalties such as detention, fines, revocation of permits and licenses, orders to suspend production and business operations, and confiscation of property;
(2) Dissatisfied with administrative coercive measures such as restricting personal freedom or sealing up, detaining, or freezing property;
(3) It is believed that the administrative organ has violated the management autonomy stipulated by law;

(4) Applying for permits and licenses issued by administrative organs that meet the statutory requirements, but the administrative organs refuse to issue or do not reply;

(5) The administrative organ refuses to perform or does not reply when applying to the administrative organ to perform its statutory duties of protecting personal rights and property rights;

(6) Those who believe that the administrative organ has not issued pensions in accordance with the law;
(7) It is believed that the administrative organ has illegally requested to perform its obligations;

(8) It is believed that the administrative organ has violated other personal rights and property rights.

27. How to register the ownership of the house in the sale of commercial house?
Shen's dispute was caused by the real estate certificate. On February 2003, 2, she spent 24 yuan to buy a house in a certain city developed by a real estate developer.The contract signed by the two parties stipulates that the real estate certificate shall be processed within one year; if it is overdue, a real estate developer will compensate according to the interest of the bank for the same period.Shen said that a real estate developer had verbally promised to obtain the real estate certificate in May 16, but until now, the house ownership registration has not been carried out, and the real estate certificate has not been obtained.

Analysis according to law
Real estate registration is a very procedural and technical act, so it needs to follow certain steps and regulations. The whole process, from application for registration to issuance of certificate, generally takes about 30 days.

1. Submit materials.Both parties (or their agents) in the sale of commercial housing should go to the real estate transaction center of the district or county where the housing is located, submit relevant materials, and fill in the application for real estate registration and the application for transfer of housing property rights.

2. Pre-registration (first review).If the relevant trading center finds it qualified after the preliminary review, it will send the real estate surveying and mapping department to prepare the map, draw the floor plan and cadastral map of the house.Those who fail the preliminary examination shall be returned to the applicant and the reasons shall be explained.

3. With pictures.The real estate title certificate must be accompanied by a cadastral map and a floor plan of the house. These drawings are the confirmation and calibration of the house and the corresponding apportioned land area. They must be drawn by the surveying and mapping department identified by the real estate management department and stamped with the official seal.The cadastral map and the floor plan of the house are in duplicate, one for the production of the real estate title certificate, and one for preservation in the real estate registration agency.

4. Pay taxes and fees (the relevant ratio here is just an example, and the specific regulations are different in different places, and the parties need to check the relevant local regulations).After confirmation by the real estate management department, the buyer can formally go through the formalities for the transfer of the property rights of the house and pay the relevant taxes and fees. (1) Deed tax: The deed tax accounts for 3% of the transaction price of the house.If an individual purchases an ordinary house for self-use, the tax is halved, and the individual actually pays 1.5%. (2) Stamp duty: Stamp duty accounts for 0.05% of the transaction price of the house and should be paid by both buyers and sellers.Stamp duty is collected by the tax department and sometimes by the real estate transaction center. (3) Transfer fee: The first transaction fee for domestic commercial housing is 0.08% of the housing transaction price, the buyer and the seller pay 0.08% respectively, and the real estate registration department collects it.For the first transaction of export commodity housing, the buyer shall pay 0.5% of the transaction price of the housing.

5. Review.Buyers submit housing transaction materials, identity certificates, and tax payment certificates to the real estate registration department, which will be reviewed by the registration department.

6. Making and issuing certificates.Buyers need to pay the cost of the real estate title certificate and the corresponding stamp duty.

In this case, the developer’s breach of contract was obvious, because the contract clearly stipulated the time limit for handling the real estate certificate, but the developer failed to complete the process within the stipulated time limit, so he could not shirk his responsibility.

tips

The real estate certificate does not have to be handled by the developer, as long as the developer submits the relevant materials for the property right certificate to the real estate exchange for record registration, and the developer issues payment and house purchase certificates to the owner, the owner can also go directly to the property right certificate .If the above-mentioned procedures are handed over to the developer, the owner can clarify the rights and obligations with the developer through an agreement.

28. How to deal with issues related to area surveying and mapping in house ownership registration?

Jiang pre-purchased a set of commercial housing with a total price of 48 yuan, and the contract stipulated that the construction area was 80 square meters.When moving in, the developer settled with Jiang for a building area of ​​78.13 square meters, and refunded part of the purchase price to Jiang.After moving in, Jiang always felt that the construction area of ​​the house was not 78.13 square meters.Therefore, Jiang entrusted a qualified real estate surveying and mapping unit to re-survey and map the area of ​​the commercial housing he lived in.Coincidentally, the surveying and mapping unit entrusted by Jiang was the same one entrusted by the developer.However, the surveying and mapping results of different surveying and mapping personnel of the same surveying and mapping agency are quite different. The surveying and mapping results indicate that the building area of ​​the house is 75 square meters.Jiang found the developer with this surveying and mapping result, but the developer ignored it.Jiang was helpless, and found a surveying and mapping unit.Only then did the surveying and mapping unit notice that the two different surveying and mapping results were produced by the same unit.

Analysis according to law
The registration of house ownership is mainly to confirm the status of the right, and the right is closely related to the house, so the area of ​​the house is an important factor affecting the scope of the rights of the parties.Jianfang [2002] No. 74 "Notice on Issues Concerning the Calculation of House Construction Area and Registration of House Ownership" stipulates that the name of the real estate surveying and mapping unit performing the survey and the building area of ​​the house should be indicated in the attached drawings of the house ownership certificate. (mark the size on the map) and the shared building area shared by the house, and the part of the house that has the function of use but the floor height (height) is less than 2.20 meters, the ownership of the corresponding rights should be clearly defined in the house ownership registration.The principles generally followed when dealing with issues related to area surveying and mapping in house ownership registration include:

(1) When applying for house ownership registration, the applicant should submit the house area surveying and mapping results.Housing right holders and housing rights applicants should entrust real estate surveying and mapping units to measure the housing area before applying for housing ownership registration.According to the relevant provisions of the "Management Measures for Real Estate Surveying and Mapping", the real estate surveying and mapping unit is responsible for the quality of its completed real estate surveying and mapping results.

(2) If a real estate development enterprise or an applicant for housing rights holds the surveying and mapping results of the surveying and mapping unit's actual measurement of the housing area announced by the surveying and mapping service hall to apply for ownership registration, the city, district and county housing ownership registration department shall accept the application.Where there is no justified reason to refuse to accept the registration application, the competent government agency will issue a notice of criticism, and will designate the relevant registration department to accept the applicant's registration application.

(3) The surveying and mapping results of the house area submitted by the applicant shall be directly used in the house ownership registration after the registration department examines them in accordance with relevant regulations.The surveying and mapping unit shall be responsible for whether the surveying and mapping results of its real estate are completed after the completion and acceptance of the house, whether the house it surveys meets the conditions for urban planning approval, and whether the apportioned public building area it measures is consistent with the sales (pre)sales contract of commercial housing, etc. .In the registration of house ownership, the surveying and mapping unit shall bear corresponding responsibilities for problems caused by the quality of real estate surveying and mapping results.

(4) If the owner of the house sells the complete set of commercial houses, affordable houses, and public houses purchased by him, and the party concerned applies for the registration of house ownership after the transaction, the purchased house will not be re-measured, and the buyer will submit a photocopy of the original house ownership certificate The registration department directly fills in the house registration form according to the area in the original house ownership certificate, and handles the registration procedures after reviewing according to relevant regulations.If there are no attached drawings or attached tables in the house ownership certificate of the sold public housing, the attached drawings and attached sheets will not be reprinted when handling the transfer registration.

In this case, the owner and the developer can negotiate to entrust another surveying and mapping unit to conduct surveying and mapping, or appeal to the court to apply to the court for re-surveying and mapping, and use the new surveying and mapping report approved by both parties as evidence to resolve the dispute.

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Pay attention to what is the basis for the buyer to ask someone to survey and map the area of ​​the house they live in?The No. 83 "Real Estate Surveying and Mapping Management Measures" jointly issued by the Ministry of Construction and the State Bureau of Surveying and Mapping is the legal basis for house buyers to ask someone to survey and map the area of ​​the house they live in. The "Management Measures for Housing Surveying and Mapping" stipulates that if the housing obligee or other interested parties request housing surveying and mapping, they shall entrust a real estate surveying and mapping unit to conduct real estate surveying and mapping.A real estate surveying and mapping unit shall, in accordance with the "Surveying and Mapping Law of the People's Republic of China" and the provisions of these Measures, obtain a "Surveying and Mapping Qualification Certificate" specifying the real estate surveying and mapping business issued by the administrative department of surveying and mapping of the people's government at or above the provincial level.

29. How to prevent numerical ambiguity in real estate contracts?

Haimou signed a commercial house pre-sale contract with a real estate company, and the contract stipulated that "every household is equipped with a video intercom. If there is a breach of the contract, the real estate agent will compensate twice the difference in equipment prices."When the real estate agent handed over the house, Hai found that there was only one intercom in the house, not a video intercom, and the price difference between the two was 1692 yuan.For this reason, Hai sued the court, and required the real estate company to compensate the difference of 3384 yuan, which was double the original price of the equipment, according to the contract.

After the trial, the court held that the real estate company failed to install a video walkie-talkie in the delivered house as agreed, and consumers had the right to choose to ask the real estate company to pay twice the price difference.However, the court also held that the "double" price difference should be interpreted as the original price difference, rather than "doubling" the price difference according to common understanding. The real estate company compensated Haimou for the price difference between the walkie-talkie and the video walkie-talkie, which was 1692 yuan.

Analysis according to law
Compensation for "doubling" the original price of the equipment usually means "doubling" the original price.How to understand the digital concept of "double"?From a mathematical concept, the "double" of the original price of the equipment is the original number of the original price, that is, 1692 yuan multiplied by 1 equals 1692 yuan.If the original price is "doubled", it will be twice the original price, that is, 2 yuan multiplied by 1692, equal to 2 yuan.

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In daily life, many people understand "doubling" as doubling the original number, not the original number.Therefore, when concluding a contract, it is often customary to agree on "original price" as "original price" and "double" as "double".People are advised to be explicit when entering into contracts and beware of numerical ambiguity.

Realtor
30. In the lease of illegal buildings, can the lessee prove that the lease contract is invalid and not pay the rent?
The plaintiff built a simple shed on the roadway originally used by a certain company without the approval of the urban construction department. In June 2003, the plaintiff rented out the simple shed on the roadway to the defendant for clothing business, and the two parties signed a lease contract for a facade house, with a lease term of one year.After the contract expired, the plaintiff wanted to take over the house according to the contract, but the defendant refused to check out on the grounds that the plaintiff had not obtained the property right of the house in accordance with the law and had no rental right.As a result, a dispute arose between the two parties, and the plaintiff brought it to court.

Analysis according to law
Illegal buildings include building additions and extensions, cooperative housing construction, random construction, etc.The rental phenomenon of illegal buildings is in short supply in some housing rental markets, and it is common in cities with higher rents.These houses include: due to the historical legacy of the land, the rental house cannot obtain a legal property right certificate; the rental house that illegally changes the land and house use; the building on the administratively allocated land for rent and the farmer's house entering the rental market Houses on base etc.According to the law, these houses cannot enter the leasing market for leasing business activities.

The simple shack built by the plaintiff was an illegal building because it had not gone through the relevant construction approval procedures with the urban construction department.The Ministry of Construction's "Urban Housing Leasing Management Measures" stipulates that houses belonging to illegal buildings cannot be rented out.The façade house lease contracts signed by the plaintiff and the defendant all violated this provision and should be invalid contracts.The plaintiff and the defendant violated the regulations and signed the house lease contract, and both parties are at fault.

According to the provisions of the civil law on the consequences of invalid contracts, all contracts that are confirmed to be invalid shall be returned.The party at fault shall compensate for the economic losses caused to the other party; if both parties are at fault, they shall bear the corresponding liability for compensation according to the magnitude of the fault; To bear.

tips

Now, most cities stipulate that the rental of houses must apply for a "Housing Leasing Permit", and no rental is allowed without a "certificate".Any unit or individual that leases a house within the urban limits of a certain city must register with the district or county real estate management department where the house is located and apply for a "House Leasing Permit" after the housing authority has determined that the ownership of the leased house is clear and free of disputes, and the structure of the house is safe. .

When applying for the "Housing Leasing Permit", the applicant must submit the following documents for verification: 1. Application for housing rental. 2. House ownership certificate or house purchase contract, new house license and other legal documents. 3. If the lessor is an individual, the owner's resident ID card should be submitted; if the lessor is a unit, the qualification certificate of the unit's legal representative or entrusted agent should be submitted. 4. If the house with property rights is rented out, it is necessary to submit the certificate or power of attorney of other co-owners agreeing to rent out. 5. If the lessor rents out multiple residential houses within the same district or county, he can apply for a "Housing Leasing Permit"; if he rents out non-residential houses, he needs to apply for a "House Leasing Permit" for one place, and the certificate indicates The location and quantity of rental housing.If it exceeds the scope of the certificate, a separate application for the "Housing Leasing Permit" should be applied. 6. If the lessor is a foreign-funded enterprise, a Sino-foreign joint venture, a Sino-foreign joint venture, a foreign citizen or a compatriot from Hong Kong, Macao and Taiwan, it shall be handled in accordance with the foreign-related real estate management regulations. 7. For the demolition or transfer of the leased house, the lessor shall hand over the "House Leasing Permit" to the issuing authority for cancellation.

31. What is new evidence in housing lease litigation?
(End of this chapter)