legal master

Chapter 49 Questions and Answers on the Evidence of Disputes over House Sale and Demolition (15)
After the trial, the court held that the plan diagram of the community plan attached to the sales advertisements and promotional materials of the real estate developer showed the plan layout of the community, which was specific and clear. deemed an offer.Although the floor plan is not attached to the "Shanghai Domestic Sales Commodity Housing Pre-sale Contract" signed by the two parties, it should also be regarded as one of the contents of the contract, which is binding on both parties.The schematic diagram clearly indicates that "Ronghui Pavilion" is a dot-type high-rise building. Without the consent of the owners, the developer changed it to a slab-type building during the second phase of construction of "Jinding Palace", making "Chaoyang Pavilion" and " The distance between "Ronghui Pavilion" was reduced to 30.4 meters, which obviously violated the planning of the community and was a breach of contract.The developer mentioned that the planning was approved by the Municipal Planning Commission, but the court found out that the change of planning was also proposed by the developer first.Relevant departments make approval opinions based on the developer's report, and it is not mandatory changes by relevant government departments.In the final analysis, it is the developers who have changed the planning of the community according to their own development needs.

In the 1997 and 2000 versions of the contract, the two parties agreed on the amount of liquidated damages.The court then made a first-instance judgment that, for the owners who held the 1997 version of the house purchase contract, the developer should pay 5% of the total purchase price as liquidated damages; and for the owners who held the 2000 version of the house purchase contract, Liquidated damages of 3% of the total house price.

[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:

(38) The burden of proof borne by the [-] plaintiff owners

In this case, the 38 plaintiff owners filed a claim for the real estate developer to bear the liability for breach of contract, so evidence should be presented for the claim and the relevant facts and reasons.Specifically:
1. The plaintiff should prove that the real estate developer's advertisements are specific and clear, and should be regarded as part of the contract.Real estate developers can use as evidence the schematic diagram of the community plan attached to the sales advertisements and promotional materials, with a distance between buildings of 50 meters and a greening rate of 50%.

2. The plaintiff should prove that the real estate developer's unauthorized change of the design plan in the advertisement is a unilateral act, and it is not a compulsory act of the relevant government department, which constitutes a breach of contract.The real estate developer's change project approval materials when applying for the construction project planning permission to the Shanghai Municipal Planning Commission for the second-phase housing can prove that the change plan was first proposed by the developer, and it is not a government-mandated change.

([-]) The burden of proof to be borne by the defendant real estate developer
The defendant, the real estate developer, denied that it should bear civil liability, so it should provide evidence for the defense and relevant facts and reasons.

1. The defendant real estate developer should prove that the advertising materials it released were not specific and clear, and thus did not constitute an integral part of its commercial housing pre-sale contract.

2. The defendant real estate developer should prove that it was not his own behavior to change the design plan in the advertisement.Although the defendant provided the approval document from the Shanghai Municipal Planning Commission, it was not sufficient to prove the existence of government coercion.

【Legal Basis】

"Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Contracts for the Sale of Commodity Housing" (April 2003, 4)
Article [-] The sales advertisements and publicity materials of commercial housing are invitations to make an offer, but the seller’s explanations and promises on the housing and related facilities within the scope of the development planning of commercial housing shall be specifically determined, and the conclusion of the commercial housing sales contract and the determination of housing prices shall be of great importance. influence, it shall be regarded as an offer.Even if the explanation and promise are not included in the commercial housing sales contract, they should be regarded as the content of the contract, and the parties who violate it should bear the liability for breach of contract.

How should disputes over demolition, compensation and resettlement agreements be handled?

trial key
In a dispute over a demolition, compensation and resettlement agreement, if the parties have different claims on the scope of demolition, demolition period, form and standard of compensation for demolition, etc., they should provide evidence to prove their claims, otherwise they should bear the consequences of unfavorable proof.

【case】

座落于惠州市桥东新南路1号之一的房产是原告黄某的私有房屋，于1984年9月1日领取房产所有证（编号为：房证字N0194744号），载明用地面积60.14平方米，建筑面积72.70平方米，建筑种类为二层混合结构楼房。1987年9月，原告向惠州市规划局申请修建楼梯间及一房，后将底层房屋出租给别人。2001年3月14日，惠州市规划局证明同意原告修建的房屋面积为31.2平方米。惠州市惠发城建发展有限公司（以下简称惠发公司）依据惠市经贸委资字（1998）008号《关于外资企业“惠州市惠发城建发展有限公司”的章程的批复》、惠旧改办（1998）1号《关于对桥东区新南路新公房改造工作的批复》、惠市府计资字（1997）189号、惠市经贸委字（1997）391号《关于独资经营惠州市惠发城建发展有限公司项目可行性研究报告的批复》文件，按照惠州市规划局联审图的范围，于1998年3月18日向惠州市房产管理局提出拆迁申请，于1998年3月25日依法领取了《房屋拆迁许可证》（编号为：拆许字（98）第12号）。1998年10月9日，被告惠州市房产管理局以惠市房拆（1998）02号《城市房屋拆迁公告》就拆迁范围、实施拆迁的拆迁人、拆迁期限、拆迁的补偿形式、标准等予以公告。原告所有的惠州市桥东新南路1号之一的房产被列入拆迁范围。此后，惠发公司与原告就拆迁补偿安置问题进行协商，未达成协议。2000年9月6日，惠州市惠发城建发展有限公司向惠州市房产管理局申请裁决。2002年2月4日，惠州市房产管理局作出惠市房裁（2002）1号《拆迁房屋裁决书》，裁决：申请裁决人拆迁被申请裁决人的房屋，属住宅用房，应补偿给住宅用房。以其房屋合法住宅建筑面积103.9平方米为依据，回迁安置按1：1的比例补偿，由拆迁人把在惠州市桥东新南路3号“惠展大厦”建筑面积为101平方米的A栋B梯303房屋补偿给被拆迁人。拆迁人补偿给被拆迁人房屋面积不足部分面积为2.9平方米，由拆迁人按照惠州欣力房地产评估事务所惠欣房估字（2001）第3601号的房地产估价报告，“惠展大厦”A栋B梯303房屋商品房价为1800元/平方米结算，即补偿5220元给被拆迁人；被申请裁决人提出的补偿要求不符合国务院《城市房屋拆迁管理条例》的规定，不予接受。原告不服被告作出的惠市房裁（2002）1号《拆迁房屋裁决书》，向法院提起行政诉讼。

The plaintiff made the following claims: 1. The ground floor of his house was rented out to others as a shop, and the house lease contract had been filed with the real estate management department, and the demolition should be compensated and resettled as a shop; 2. He had filed a complaint with Huizhou City Planning and Construction Bureau Regarding the application report requesting confirmation of the legality of the 72.44-square-meter building, before confirmation, the defendant went beyond the scope of administrative authority and determined that the 72.44-square-meter building was an illegal building.The remaining 72.44 square meters of real estate used by the plaintiff with unconfirmed construction area should be compensated; 3. The house lease relationship between the plaintiff and the original tenant was terminated, and Huifa Company should compensate itself; 4. Huifa Company should compensate For the insufficient area of ​​the plaintiff's house, the defendant did not adopt the price of the demolished house entrusted by the plaintiff to evaluate in the ruling, but adopted the price of the house to be exchanged entrusted by Huifa Company to evaluate, which was illegal.

Defendant Huizhou Real Estate Management Bureau argued that: 1. According to the Ministry of Construction’s Jian Fang Han Zi (1993) No. 23, the ground floor of the plaintiff’s private house was rented out to others for operation, and the nature of use had actually changed. After his private house was included in the scope of demolition and before the defendant made a house demolition ruling, he did not go through the registration procedures for the change of the property of use of the house.The "Real Estate Ownership Certificate" held by the plaintiff indicated that the house to be demolished was used as a residence, and the defendant's determination in the ruling based on this was correct that the house to be demolished was a residence and should be recognized; 2 square meters, as evidenced by the plaintiff’s real estate ownership certificate. The City Planning Bureau confirmed the area as 72.70 square meters on March 2001, 3. Therefore, the plaintiff’s legal building area is 14 square meters. For the unconfirmed building area of ​​31.2 square meters, The Municipal Planning Bureau did not approve it, and the plaintiff’s request for compensation has no basis; 103.9. The termination of the house lease relationship between the plaintiff and the original tenant could not reach an agreement. According to the provisions of Article 72.44 of the "Regulations on the Administration of Urban House Demolition" No. 3, there is no compensation The problem is that the plaintiff insists on exchanging the pavement area without any factual and legal basis; 20. As for the compensation for the insufficient area of ​​the plaintiff’s demolished house after exchange, the defendant decided to adopt the price of the house to be exchanged based on the market price of the house entrusted by Huifa Company Compensation to the plaintiff does not violate laws and regulations.

【Judgment】

After the trial, the court held that: First of all, the fact that the plaintiff rented out the ground floor house to others can be ascertained.However, the "Real Estate Ownership Certificate" held by the plaintiff indicated that the house to be demolished was used as a residence, and the defendant's determination in the ruling that the house to be demolished was a residence was correct and should be recognized.The plaintiff’s filing of the house lease contract with the real estate management department cannot be used as a legal basis for the change in the nature of house use.Therefore, there is no legal basis for the plaintiff to claim that shops must be used as compensation for the demolition of his house.Secondly, the defendant had notified the plaintiff in writing to provide legal and valid proof of the construction area of ​​the rest of the house before making the ruling on house demolition, but the plaintiff failed to provide a legal and valid legal basis.Therefore, the plaintiff should not be compensated for the construction area of ​​the rest of the property that has not been confirmed.Thirdly, because the plaintiff did not provide the defendant with relevant evidence of terminating the lease relationship with the house lessee or relocating the house lessee, the defendant’s ruling to exchange the property area in the residential building at a ratio of 1:1 was legal.Finally, as for the compensation for the insufficient area of ​​the plaintiff’s demolished house, the defendant decided to adopt the price of the house to be replaced commissioned by Huifa Company to compensate the plaintiff based on the market price of the house. This is the defendant’s exercise of discretion in accordance with the law and does not violate the law , regulations.

[evidence hint]

According to the principle of sharing the burden of proof in the Administrative Litigation Law and in light of the specific circumstances of this case, the plaintiff and the defendant should respectively bear the following burden of proof:

([-]) The plaintiff Huang should bear the burden of proof

In this case, the plaintiff, Mr. Huang, filed a series of claims, so evidence should be presented for these claims and relevant facts and reasons.Specifically:
1. The plaintiff should prove that he rented out the ground floor of his private house to others for operation, the nature of use has actually changed, and he has gone through the registration of house use change; Registration procedures for changes in the nature of use.Neither of the above two cases could be proved by the plaintiff.

2. The plaintiff should provide legal and valid certificates for the construction area of ​​the rest of the property, but the plaintiff failed to do so.

3. The plaintiff should prove that it terminated the lease relationship with the house lessee and resettled the house lessee, but the plaintiff could not provide relevant evidence.

4. The plaintiff should prove that it is illegal for the defendant to determine the price of the house to be exchanged as compensation for the demolished house based on the market price of the house.

([-]) The burden of proof that the defendant Huizhou Real Estate Management Bureau should bear
In response to a series of lawsuits filed by the plaintiff Huang, the defendant Huizhou Real Estate Administration rebutted.Accordingly, the defendant shall bear the burden of proof as to the following facts:
1. The defendant should prove that the ground floor of the plaintiff’s private house is leased to others for operation, and the nature of use has actually changed, but he has not gone through the registration of the change of house use. After his private house was included in the scope of demolition and before the defendant made a decision on house demolition, he did not make up the house Registration procedures for changes in the nature of use.Therefore, the plaintiff's house should be compensated as a residence rather than a shop.This can be proved by the "Real Estate Ownership Certificate" marked by the plaintiff.

2. The defendant should prove that the Municipal Planning Bureau did not approve the plaintiff's unconfirmed building area of ​​72.44 square meters, and the plaintiff's claim for compensation has no basis.This can be proved by the relevant documents of the Municipal Planning Bureau.

3. The defendant should prove that the plaintiff and the original tenant did not reach an agreement on the termination of the house lease relationship, so there is no issue of compensation.The plaintiff's insistence on changing the pavement area has no factual and legal basis.Given that the plaintiff did not provide evidence to support this contrary claim, the defendant naturally did not have to satisfy its claim.

4.对于原告被拆迁房屋调换后面积不足部分的补偿金，被告根据房屋市场价格，确定采纳惠发公司委托评估的拟调换房屋价格补偿给原告，并不违反法律、法规。2002年2月4日，惠州市房产管理局作出的惠市房裁（2002）1号《拆迁房屋裁决书》和惠州欣力房地产评估事务所惠欣房估字（2001）第3601号的房地产估价报告可以作为有利证据。

【Legal Basis】

"Regulations on the Administration of Urban House Demolition and Relocation" (June 2001, 6)
No.20 The amount of monetary compensation in the four items shall be determined by the real estate market evaluation price according to the location, purpose, construction area and other factors of the demolished house.Specific measures shall be formulated by the people's governments of provinces, autonomous regions, and municipalities directly under the Central Government.

No. 20 Article 20 Where house property rights are exchanged, the demolisher and the demolished shall calculate the compensation amount for the demolished house and the price of the exchanged house in accordance with the provisions of No. [-] Article [-] of these Regulations, and settle the price difference of the property right exchange.

Demolition of attachments of non-public welfare houses does not require exchange of property rights, and the demolisher will give monetary compensation.

No.20 Article [-] When demolishing a leased house, if the demolished party terminates the lease relationship with the house lessee, or if the demolished party resettles the house renter, the demolition party shall compensate the demolished house.

If the demolished person and the house lessee fail to reach an agreement on the termination of the lease relationship, the demolisher shall exchange the house property rights of the demolished person.The house whose property rights are exchanged shall be leased by the original house lessee, and the demolished person shall sign a new house lease contract with the original house lessee.

(End of this chapter)