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Chapter 48 Questions and Answers on the Evidence of Disputes over House Sale and Demolition (14)
For other indirect evidence, you can invite people who know the truth to testify. If the witness’s testimony is to be recognized by the court, it must at least meet the following conditions: 1. It must have no interest in Zhang. Even if Zhang’s relatives and friends know the truth It may not be recognized by the court due to its weak effect; 2. There must be more than two witnesses, and the effect of a witness’s testimony is difficult to counter the effect of original written evidence; 3. The witness must have witnessed the whole process of Zhang’s investment 4. Witnesses must appear in court to testify, and accept cross-examination and questions from both the plaintiff and the defendant, and there is no contradiction between the facts stated by the witnesses and between the witnesses and Zhang.

tips

Nowadays, unmarried men and women often spend money together to buy a house before they get married. In order to avoid house ownership disputes, they can apply for a notarization of house purchase capital contribution in advance.In the notarization of house purchase investment, the notary notaries how much the two parties paid when buying the house, so that the share of the house in the event of a dispute can be determined according to the contribution ratio.

53. How to preserve the evidence to protect the rights and interests of the other party when buying a house before marriage?
Zhao is not married yet, but Zhao and her boyfriend bought a house in the city center with a mortgage. The name of Zhao's boyfriend is written on the real estate certificate. Now Zhao's boyfriend proposes to borrow some money from Zhao's parents to repay the loan in advance.Zhao discussed with his boyfriend and said that the house should be considered as shared by both of them.So, what kind of procedures should Zhao take to protect his legitimate rights and interests?
Analysis according to law
Because the name of Zhao's boyfriend is written on the real estate certificate, so legally speaking, if there is no evidence to the contrary, this property belongs to his personal property before marriage.In the past, there were judicial interpretations that stipulated that the property owned by one party before marriage, if the two parties have lived together for a certain period of time, should be regarded as the joint property of the husband and wife.According to the current law, the property owned by one party of the husband and wife, if there is no special agreement, is still owned by one party.On this point, the relevant provisions of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (I) are consistent with the Marriage Law.

Therefore, in order to protect Zhao’s legitimate rights and interests, the two parties can sign an agreement stating how much Zhao paid and how much real estate he should occupy, and go to the notary office for notarization.

tips

Real estate notarization is a common notarization business with a wide range of contents, mainly including: notarization of real estate sales contract, notarization of real estate lease contract, notarization of real estate mortgage contract, notarization of commercial housing pre-sale contract, notarization of real estate inheritance, notarization of real estate gift, notarization of real estate transfer agreement , Notarization of real estate exchange agreement, notarization of real estate division agreement, notarization of house demolition (compensation, resettlement) agreement, notarization of house property right confirmation, notarization of power of attorney involving real estate, notarization of will and bequest support agreement involving real estate, preservation evidence involving house, And notarization of real estate affairs related to foreign countries, Hong Kong, Macao and Taiwan, etc.

Evidence tips for typical cases of housing sales and demolition

If the pre-seller changes the design without authorization, how does the buyer prove his rights?
trial key
If the pre-seller changes the design plan without authorization during the performance of the commercial housing pre-sale agreement, causing disputes, the pre-seller needs to prove the rationality and legality of the change.The buyer needs to prove the loss it suffered and the causal relationship between the loss and the other party's breach of contract.

【case】

Hainan Tongda Industrial Co., Ltd. (hereinafter referred to as Tongda Company) started construction in 1998 of "Legend of the South China Sea", which is a property right hotel project. The project mainly consists of ancient Roman hot spring baths, Apollo Center Hotel, Athena, Poseidon Apartment Hotel, etc. The composition of the main building. On December 1999, 12 and January 29, January 2000, and February 1, 3, Tongda Company signed the "Commercial Housing Purchase and Sales Contract" with seven people including He Mou, agreeing on the "Legend of the South China Sea" Apollo Center Hotel each house.If Tongda Company fails to deliver the house on time, it will pay liquidated damages to the pre-purchaser at 1% of the total purchase price.After He Mou and others signed the contract, they all paid the first installment according to the contract, and at the same time signed the "Supplementary Terms for Bank Mortgage Loan Handling" with the defendant respectively.During the construction process, Tongda Company submitted the "Application for Approval of the Feasibility Study Report of Hainan Crown Binhai Hot Spring Hotel" to the Hainan Provincial Development and Planning Department with Tongda Letter (8) No. 2, and the feasibility study report was attached. On January 18, 5, the Development and Planning Department of Hainan Province issued a reply in Qiong Ji Society (2000) No. 001, agreeing to Tongda Company to invest in the construction of "Crown Hot Spring Hotel". The project is still composed of the original main building.Afterwards, Tongda Company applied to the Qiongshan Municipal Government to confirm the legality of the construction of the "Crown Hot Spring Hotel" project with Tongda Wen (2000) No. 1, and the Qiongshan Municipal People's Government approved " It is agreed that Tongda Company will expand the recuperation and health care center into a crown hot spring hotel integrating tourism, vacation, leisure and recuperation."So far, the "Legend of the South China Sea", which is still under construction, has continued to be built under the name of "Crown Hot Spring Hotel". Tongda Company has also made appropriate modifications to the original "Legend of the South China Sea" design plan, but the overall layout has not been changed. On December 20, 2000, Tongda Company issued a "Letter to Customers" to buyers, stating that it had changed the original "general recuperation resort center" into a "five-star property-owned resort hotel" and correspondingly "increased investment , increased costs", the subject matter of the contract signed with the plaintiff "has undergone a fundamental change in nature", and the room cannot be delivered as scheduled, and the mortgage cannot be processed as scheduled, so it is required to adjust the price set in the original contract and use the "current price" Buy.After the letter was issued, some house buyers checked out, but He Mou and other seven people unanimously demanded that the defendant bear the responsibility for breach of contract and continue to perform according to the original contract. On December 26, 2001, Tongda Company issued a "Notice" to He and others, clearly stating that it was unable to perform at the price determined in the original contract, and was willing to bear the responsibility for failure to perform the contract.In desperation, He Mou and other seven people sued the court.

The plaintiff claimed that: after the defendant and the seven plaintiffs signed the "Commercial Housing Purchase and Sales Contract", the defendant failed to deliver the house before December 2001, 12 as stipulated in the contract, nor did the plaintiff apply for the real estate certificate as agreed.Not only that, the defendant also cited various reasons in the form of a "Letter to Clients" to terminate the effective "Commercial Housing Purchase and Sales Contract".The defendant's action violated the provisions of the "Contract Law", violated the principle of good faith in market transactions, and seriously damaged the legitimate rights and interests of the seven plaintiffs.For this reason, the seven plaintiffs jointly appealed to the People's Court: 18. Order the defendant to continue to perform the "Commercial Housing Purchase and Sales Contract" signed with the seven plaintiffs; Bear the litigation costs of this case.

The defendant, Tongda Company, argued that: after the signing of the "Commercial Housing Purchase and Sales Contract" signed by our company and the seven plaintiffs, our company partially performed its obligations in accordance with the contract, and carried out the project establishment and basic construction of "Legend of the South China Sea".During the construction process, due to market reasons, in order to improve the quality of "Legend of the South China Sea", the original general recuperation resort center project was changed into a five-star resort hotel.After being approved by the relevant government departments, our company officially changed the "Legend of the South China Sea" project to "Crown Hot Spring Hotel".Due to the change of the project, our company has correspondingly increased investment and increased costs.Therefore, the subject matter of the original contract no longer exists, and our company has actually been unable to perform the "Commercial Housing Purchase and Sales Contract" signed with the plaintiff.Therefore, on December 2001 and 12, 11, our company issued notices to the plaintiff that it could not perform the contract.In addition, our company's inability to perform the contract resulted in a breach of contract, and the liability to be borne is mainly the liquidated damages agreed in the contract, as well as the damages that the plaintiff can prove have a causal relationship with our company.

【Judgment】

The trial found that because the defendant Tongda Company had made certain adjustments to the plane layout and room structure of the Apollo Center Hotel, the room numbers determined in the original contract had changed.After entrusting relevant technical departments to appraise, the seven plaintiffs were clarified after comparing the old and new floor plans and on-site identification.

Finally, the court ruled as follows:

[-]. The "Commercial Housing Purchase and Sale Contract" signed by the plaintiff He and other seven persons with the defendant Tongda Company is valid;
30. The defendant Tongda Company shall deliver the original corresponding rooms of the Apollo Center Hotel of the Crown Hot Spring Hotel to the plaintiff He and other seven persons within [-] days from the effective date of this judgment;
30. The defendant, Tongda Company, shall pay liquidated damages to seven plaintiffs including He Mou at the rate of 5% of the total house purchase price within 232 days from the effective date of this judgment;

[-]. Other claims of the plaintiff are dismissed.

The case acceptance fee of RMB 25068 and the appraisal fee of RMB 3500 shall be borne by the defendant.

[evidence hint]

According to the principle of sharing the burden of proof in the "Civil Procedure Law", combined with the specific circumstances of this case, the plaintiff and the defendant in this case should respectively bear the following burden of proof:

([-]) The burden of proof that the plaintiff He and other seven persons should bear
In this case, seven plaintiffs including He Mou filed a lawsuit requesting Tongda Company to compensate them for their losses. Therefore, evidence should be presented for the lawsuit request and relevant facts and reasons.Specifically:
1. Seventh, the plaintiff should prove that the commercial house pre-sale agreement signed with Tongda Company is legal and valid.The "Commercial Housing Purchase and Sale Contract" signed by both parties can prove that the agreement is valid.

2. Seven plaintiffs should prove that Tongda Company changed the "Legend of the South China Sea" project to "Crown Hot Spring Hotel" after obtaining the approval of relevant government departments. "Commercial Housing Purchase and Sale Contract" signed with the plaintiff.

The appraisal conclusion in this case was entrusted by the court to the relevant technical department to identify the corresponding room numbers of the seven plaintiffs at the Apollo Center Hotel in the "Crown Hot Spring Hotel" and the corresponding room number of the "Legend of the South China Sea" purchased by the technical department, and the technical department measured the actual building area .Thus, it was determined that the subject matter for Tongda Company to continue to perform the contract still existed.

3. Seventh, the plaintiff should prove that the loss due to Tongda Company’s breach of contract was 1611596.50 yuan, that is, there is a causal relationship between this part of the loss and Tongda Company’s breach of contract.[-]. The plaintiff's payment certificate and the signed "Supplementary Terms of Mortgage" can show the actual amount of loss.The "Notice" issued by Tongda Company to the plaintiff indicated that it had breached the contract and caused losses to the plaintiff.

([-]) The burden of proof that the defendant Tongda Company should bear
1. Tongda Company shall prove that it officially changed the "Legend of the South China Sea" project to "Crown Hot Spring Hotel" after obtaining the approval of the relevant government departments.Due to the change of the project, Tongda Company increased its investment and cost accordingly.The subject matter of the original contract no longer exists, and Tongda Company has in fact been unable to perform the "Commercial Housing Purchase and Sales Contract" signed with the plaintiff.Relevant government approvals can prove the legality of project changes, but Tongda Company cannot fully prove that the contract cannot be fulfilled.

2. Tongda Company should prove that not all of the losses claimed by the seven plaintiffs were caused by Tongda Company's breach of contract.

【Legal Basis】

"Administrative Measures for the Sales of Commodity Housing" (April 2001, 4)
No.20 Article [-] Real estate development enterprises shall construct commercial housing in accordance with the approved plans and designs.After the commercial housing is sold, the real estate development enterprise shall not change the planning and design without authorization.

If the planning change approved by the planning department or the design change approved by the design unit leads to changes in the structural type, unit type, space size, and orientation of the commercial housing, or other conditions that affect the quality or use function of the commercial housing as agreed by the parties to the contract, the real estate development enterprise shall make the change. Within 10 days from the date of establishment, notify the buyer in writing.

The buyer has the right to make a written reply on whether to check out within 15 days from the date of arrival of the notice.If the buyer fails to make a written reply within 15 days from the date of arrival of the notice, it is deemed to have accepted the change of planning and design and the change of house price caused by it.If the real estate development enterprise fails to notify the buyer within the prescribed time limit, the buyer has the right to check out; if the buyer checks out, the real estate development enterprise shall bear the liability for breach of contract.

"Several Provisions of the Supreme People's Court on Evidence in Civil Procedures" (December 2001, 12)
Article [-] In a contract dispute case, the party who claims that the contract relationship has been established and becomes effective bears the burden of proof for the fact that the contract has been concluded and becomes effective; burden of proof.

In the event of a dispute over whether a contract is performed, the party with the obligation to perform shall bear the burden of proof.

In the event of a dispute over the power of agency, the party claiming the power of agency shall bear the burden of proof.

Does the developer's violation of the pre-sale commercial housing advertisement constitute a breach of contract?

trial key
If the developer violates the pre-sale advertising materials and causes disputes, if it can be proved that the advertisements and promotional materials are specific and clear, and have a significant impact on the purchase contract and house price, the developer will constitute a breach of contract.

【case】

Based on the advertisements that the distance between the buildings in the community is 50 meters and the greening rate of the community is 50%, in 2000 and 2001, some owners successively purchased the buildings named "Jindinglishe-Chaoyang Pavilion" (the first phase of "Jindinglishe") To move in commercial housing, real estate developers signed contracts with housing owners in 1997 and 2000, respectively, with the "Shanghai Domestic Sales Commodity Housing Pre-sale Contract". In February 2002, the developer started to build the second phase of "Jindinglishe", and on February 2 of the same year, posted the revised community planning floor plan and a construction start notice in the lobby of "Chaoyang Pavilion".Only then did the owners learn that the distance between the proposed "Ronghui Pavilion" and "Chaoyang Pavilion" has been reduced from the originally agreed 2 meters to 28 meters.For this reason, 50 homeowners filed a lawsuit in late March 30.4 over a dispute over the pre-sale contract of commercial housing, requiring the developer to pay a total of about 38 yuan in liquidated damages for changing the community planning without authorization.

In the face of the lawsuit, the real estate developer argued that when applying for the planning permission of the construction project for the second-phase housing, in order to meet the requirements of a modern community, it reported to the Shanghai Municipal Planning Commission to change the project approval, and changed the "Ronghui Pavilion" from the original point-style building planning. Approved for the slab building; the community planning is a request from the government, not my own responsibility.In the pre-sale contracts of the owners, although there is a schematic diagram of the plot of the community, the schematic diagram indicates that "this planning diagram is a scheme diagram in the planning stage, and the final approval document of the Jinding Planning and Land Bureau shall prevail."The developer emphasized that the floor plan in the pre-sale contract is not specific and should be subject to the approval of relevant departments. That's why the notice was posted in the lobby of "Chaoyang Pavilion" where the 38 owners live.As for the content of the distance between buildings less than 50 meters and the greening rate, there is no agreement in the contract, so my own behavior does not constitute a breach of contract to the owner.

The real estate developer stated that the change of the community plan was approved by the relevant department. When applying for the planning permission of the construction project for the second-phase housing, it was found that the original plan was unscientific, so it was integrated and consolidated for construction; the plots in the promotional materials are not specific. It is only one plan; the floor plan in the promotional materials is not attached to the contract as an annex to the contract, and it should be determined that the two parties have no agreement on the planning of the community.Even if it constitutes a breach of contract, it should be dealt with as a check-out according to the content of the contract.

【Judgment】

(End of this chapter)