First, the validity of the pre-sale contract of commercial housing that meets the conditions for the sale of existing homes.

If the seller signs a pre-sale contract to transfer the house without obtaining the pre-sale permit certificate of the commercial house, and the house has been completed and accepted before the end of the debate in the court of first instance, it can be considered as a commercial house for sale now. If the parties claim that the contract is invalid on the grounds that the seller has not obtained the pre-sale permit certificate of commercial housing, it will not be supported.

Second, the effectiveness and performance of the appointment contract

If the parties request to confirm that the reservation agreement is invalid on the grounds that the seller did not obtain the pre-sale permit certificate of the commercial housing when signing the reservation agreement such as the pre-purchase book and the letter of intent for house purchase, it will not be supported, except that the reservation agreement is recognized as the pre-sale contract of commercial housing.

After the conclusion of the appointment agreement, one party refuses to sign the house sales contract without justifiable reasons, and if the observant party brings a lawsuit to the court to ask the defaulting party to sign the sales contract, it is generally not supported.

Third, the effectiveness of signing a house sales contract based on fake mortgage.

The parties entered into the sales contract in order to obtain the fictitious fact of buying and selling houses with bank loans, and the parties did not express their true intention to buy and sell houses, so the sales contract of houses was invalid. If the parties fail to pay off the bank loan, the legal consequences of the invalid contract can be handled according to the provisions of Article 25 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Sales Contract Disputes.

Fourth, the effectiveness of the house sales contract.

The parties deliberately conceal the real transaction price in the house sales contract (including the online signing contract signed by both parties) in order to avoid the state tax supervision. This price clause is invalid, but the invalidity of this clause does not affect the validity of other parts of the contract. If the parties request to confirm that all the sales contracts are invalid on the grounds of evading state taxes, they will not be supported.

If the parties dispute the validity and performance of the house sales contract (including the online signing contract signed by both parties), it is called house sales after examination, but it is actually a legal act such as gift, which shall be handled according to the nature of the hidden legal act.

Five, the effectiveness of the purchase index transfer contract

When the parties sign a contract to transfer the purchase index of houses (including demolition and resettlement houses) to others, if one party claims that the transfer contract is invalid, it will generally not be supported, except that the parties transfer the purchase index of affordable housing and other policy-guaranteed housing.

Six, have no right to dispose of the validity and performance of the contract

If one spouse transfers the legally owned house registered in his own name without the consent of the other spouse, and the parties claim that the house sales contract is invalid on the grounds that the seller has no ownership or disposition right when signing the contract, it will not be supported.

The house mentioned in the preceding paragraph has been delivered but has not been registered for ownership transfer, which does not meet the constitutive requirements of bona fide acquisition stipulated in Article 106 of the Property Law, and the sales contract constitutes a legal impossibility. If the buyer requests to continue to perform the sales contract for registration of ownership transfer, the court shall explain that the buyer can claim to terminate the contract, and that if the buyer insists on not changing his claim, it shall rule to reject his claim. If the house sales contract is terminated, the bona fide buyer has the right to demand the seller to bear the liability for breach of contract, including compensation for the loss of house price difference.

The house mentioned in the preceding paragraph has been registered in the name of the buyer, but it does not meet other constitutive requirements stipulated in Article 1 Paragraph 106 of the Property Law. If the other spouse requests to recover the house according to these regulations, it shall be supported. The judgment time of "good faith" shall be subject to the buyer's application for transfer registration.

Seven. Litigation status and responsibility of the owner of the house * * *

If one of the husband and wife transfers the legally owned house registered in his own name, and the buyer requests to continue to perform the house transfer registration contract, the court shall examine whether the seller's (registered party's) behavior constitutes unauthorized disposition or unauthorized agency, and explain that the buyer can apply for adding the other spouse to participate in the lawsuit together with the defendant or a third party. If the buyer fails to apply, the court may notify the other spouse to participate in the lawsuit as a third person without independent claim. If the other spouse claims to take back the house on the grounds that the seller has no right to dispose of it, he may participate in the lawsuit as a third person with independent claim. If the other husband and wife express their consent to the seller's transfer of the house to the court, they may not participate in the litigation.

After examination, if the other spouse approves the seller's disciplinary action or there is evidence to prove that he agrees to perform it with his own actions, it constitutes joining the house transfer registration debt, and both husband and wife are judged to handle the house transfer registration procedures as buyers; If the seller's behavior constitutes the provision in Item (2) of Article 17 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (I) or Item (2) of Article 66 of the General Principles of Civil Law, the sales contract is binding on the other husband and wife, and both husband and wife are judged to handle the house transfer registration formalities for the buyer.

Eight, the effectiveness of false housing sales contracts

If the seller transfers the house without authorization in the name of the owner of the house (for example, forging the identity certificate of the owner, looking for someone with similar appearance to impersonate the owner, etc.). ), he can refer to Article 48 of the Contract Law to determine that the house sales contract is invalid, and the contract is not binding on the owner of the house unless the buyer has evidence to prove that it constitutes an agency by estoppel as stipulated in Article 49 of the Contract Law.

If the buyer thinks that the legitimate appearance of the seller's agency right cannot be attributed to the owner of the house, it does not constitute agency by estoppel as stipulated in the preceding paragraph.

Nine, the validity of the contract in the series of sales

In the series of house sales, the invalidity of the previous house sales contract does not necessarily affect the validity of the latter house sales contract, and the court should determine it according to whether the latter house sales contract has other legal invalidity. However, whether the buyer of the subsequent sales contract can obtain the housing rights shall be handled in accordance with the provisions of Article 106 of the Property Law on bona fide acquisition.

X. identification and treatment of house purchase under name

If the borrower brings a lawsuit against a famous person (registrant) and confirms that the house belongs to him, the court shall explain to him that he can bring a lawsuit against the contract and ask the famous person to handle the house transfer registration formalities for him.

Policy-guaranteed housing as stipulated in Article 16 of Guiding Opinions of Beijing Higher People's Court on Several Issues Concerning the Application of Laws in the Trial of Disputes over Housing Sales Contracts (Trial) includes affordable housing, two-bedroom housing and other housing that guarantees housing difficulties for low-and middle-income families. If the borrower requests to go through the house transfer registration procedures, and the original purchase contract for affordable housing purchased under the borrower's name was signed before April 1 1 day, 2008 (inclusive), it can be handled with reference to the provisions in paragraph 2 of Article 6 of the above guidance.

In the dispute of house vacating, if the defendant takes the relationship between the two parties as the defense reason, the court shall explain that it can file a counterclaim to handle the house transfer registration procedures. If the party insists on not counterclaiming, he should try to judge whether his defense is established.

XI。 Handle the request to continue to perform the contract

If the parties request to continue to perform the house sales contract, but there is no specific content in the litigation request, the court shall explain to the parties and ask them to change the litigation request to clarify the specific content, such as paying the house purchase price, delivering the house, and handling the house transfer registration. And inform them that there is a risk that it is impossible to perform the contract only because it is unclear to continue to perform the contract; If the parties insist on not changing, they can make corresponding judgments at the request of the parties and inform them that they can sue for new disputes on specific performance.

Twelve, commercial housing does not meet the delivery conditions.

If the buyer requests the delivery of the commodity house, but the house has been completed but has not gone through the completion acceptance procedures, which does not meet the statutory mandatory delivery conditions, the seller may be judged to organize the completion acceptance of the project within a reasonable period of time, and the qualified house will be delivered to the buyer, except that the sales contract cannot be performed permanently.

If the buyer agrees to take over the commercial house after knowing that it does not meet the statutory or agreed delivery conditions, and then claims liquidated damages for late delivery on the grounds that the house does not meet the delivery conditions, it will not be supported, but the buyer has the right to ask the seller to improve the delivery conditions of the house according to the legal provisions or the contract, and claim the actual losses caused by not meeting the delivery conditions.

The model text of the commercial housing sales contract stipulates that the seller shall "pay the liquidated damages within 30 days from the actual delivery date of the house". If the seller actually delivers the house late, the buyer shall claim liquidated damages for late delivery according to the performance period agreed in the contract; If the house is not actually delivered within the time limit, the buyer claims to pay liquidated damages for the overdue delivery, and the seller raises a defense on the grounds that the performance period agreed in the contract has not expired, it will not be accepted.

Thirteen. The buyer refuses to accept the commodity house.

The house delivered by the Seller conforms to the commercial housing sales contract and statutory mandatory delivery conditions and quality standards. If the buyer refuses to take over the house on the grounds that there are superficial defects in the quality of the house, and demands the seller to bear the responsibility for late delivery and breach of contract, it is generally not supported, except that the buyer does have evidence to prove that there are functional quality defects in the house at the time of delivery, which seriously affect the normal living and use. The buyer's acceptance of the house does not affect the seller's warranty obligation for the quality defects of the house.

Fourteen Confirm that the house transfer registration has not been handled due to the "Seller's reason"

As stipulated in the Commodity House Sales Contract, the buyer entrusts the seller to apply for the certificate on his behalf. If the seller fails to register the house transfer to the buyer's name within the contract or legal time limit for obtaining the certificate, it shall bear the liability for breach of contract for overdue obtaining the certificate, unless the seller has evidence to prove that the overdue obtaining the certificate is caused by the buyer's failure to pay relevant taxes or provide relevant certificates.

If the contract for the sale of commercial housing does not clearly stipulate that the seller shall handle the house transfer registration for the buyer, that is, the seller shall complete the initial registration of the house 30 days before the expiration of the contract or the legal time limit for handling the house transfer, and submit the necessary supporting materials to the house registration authority, informing the buyer that he can apply for the house transfer registration by himself according to the contract or other reasonable means. If the seller fails to fulfill the above obligations, it shall bear the liability for breach of contract for overdue certification.

If the buyer fails to obtain the house ownership registration within the contract or legal time limit due to the administrative department, the seller's liability for breach of contract due to overdue registration may be reduced or exempted according to its influence.

Fifteen, at the same time treat the obligation to pay.

If the buyer asks the seller to deliver the house or handle the house transfer registration, it is stipulated in the contract that the buyer's obligation to pay the remaining house price should be fulfilled before or at the same time as the seller's obligation to deliver the house and transfer the house. If the buyer agrees to pay the remaining house price as agreed, but the seller refuses to accept it, the court should explain to the seller that it can counterclaim the remaining house price, and explain that the seller insists on not counterclaiming and refuses to perform the defense only on the grounds that the buyer has not paid the remaining house price. According to the buyer's claim, the court should decide: "When the buyer pays the remaining purchase price as agreed in the contract, the seller will deliver the house and assist the buyer to handle the house transfer registration procedures".

Sixteen, the order of the buyer's rights in the sale of several rooms

If several buyers in a house purchase request to continue to perform the house purchase contract, the order of rights protection shall be determined in accordance with Part II (II) of the Minutes of the National Civil Trial Work Conference and Article 13 of the Guiding Opinions of Beijing Higher People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over House Purchase Contract (Trial). The rights of the buyer who occupies the house during the period of house seizure cannot be opposed to the buyer who seized the house earlier; The buyer's right to record the pre-sale contract of commercial housing or the right to sign it online cannot be opposed to the buyer who legally occupies the house.

If the buyer requests to handle the house transfer registration, the court shall inform him that he can apply for preservation measures for the house. If necessary, the court may post seals or announcements on the sealed house, and extract and preserve the relevant property right certificates.

Seventeen, the exercise of the right to transfer registration of the third party.

If the house sales contract stipulates that the seller and the third person designated by the buyer shall handle the house transfer registration, the third person has the right to directly request the seller to handle the house transfer registration; The buyer may also require the seller to perform the contractual obligations to the third party designated by him, unless the third party refuses to accept it.

18. Performance of the house sales contract after the death of the seller.

If the seller dies after the signing of the house sales contract, the buyer has the right to ask the heir of the seller to continue to perform the contract debts, deliver the house, and handle the house transfer registration within the scope of inheritance. The court should make a judgment according to the buyer's claim: "The heir of the seller shall assist the buyer in handling the house transfer registration procedures".

Nineteen, housing use price loss and double indemnity.

The seller's breach of contract stipulated in Articles 8 and 9 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Laws in the Trial of Disputes over Commercial Housing Contracts leads to the dissolution of the commercial housing sales contract. If the buyer demands compensation for both the price increase loss of the house and the loss not exceeding twice the paid house price, he can support it, unless otherwise agreed in the contract. If the seller has evidence to prove that the sum of the two compensation amounts is excessively higher than the actual losses suffered by the buyer, the total compensation amount may be reduced as appropriate.

Twenty, at the same time advocate the handling of overdue delivery and the handling of liquidated damages.

If the seller violates the house sales contract and fails to deliver the house and handle the certificate, the buyer can support two liquidated damages at the same time. If the seller claims that the sum of the two liquidated damages is too high, the court can comprehensively consider the actual losses suffered by the buyer, the degree of the seller's fault, whether to use standard clauses and other factors, and choose a higher standard to support the liquidated damages during multiple breaches.

The commercial housing sales contract stipulates that the seller shall pay liquidated damages for the initial registration and transfer registration overdue, and if the buyer claims two liquidated damages at the same time, it shall be handled in accordance with the principle of the preceding paragraph.

Twenty-one, the judgment standard of excessive liquidated damages for overdue license

If the seller claims that the amount of liquidated damages for overdue registration agreed in the house sales contract is obviously too high, and the actual loss of the buyer cannot be determined after examination, the court may adjust the amount of liquidated damages within the standard range of three ten thousandths on the basis that the buyer has paid the house purchase price.

Twenty-two, the adjustment of liquidated damages claim and subsection claim shall be carried out separately.

In the dispute over the house sales contract, if the seller takes the excessive liquidated damages claimed by the buyer as the defense, it shall be handled according to the following circumstances:

(1) If the seller breaches the contract for many times and the buyer files a separate lawsuit for liquidated damages, and the court of first instance has dealt with it, the court of second instance shall comprehensively consider the specific circumstances of the previous case, the actual loss of the buyer, the compensation amount of the previous case and other factors to determine the compensation amount.

(2) If the buyer sues the seller in stages for the same breach of contract, and the court in the previous case has determined that the seller paid the liquidated damages, and the seller has evidence to prove that the liquidated damages determined in the previous case plus the liquidated damages claimed by the buyer in the latter case are higher than the actual losses, it shall rule that the buyer's claim is partially rejected until it is completely rejected.

(3) If the buyer claims liquidated damages for delayed performance or termination of the contract for the same breach of contract by the seller, and the court of first instance has determined that the seller shall bear the liquidated damages for delayed performance, the court of second instance shall deduct the amount of liquidated damages for delayed performance that the seller has already borne when supporting the termination of the contract.

Twenty-three Determination of limitation of action for liquidated damages

If the house sales contract stipulates that the liquidated damages that the parties should bear for violating the contractual obligations are a certain amount of one-time liquidated damages, the limitation period of action shall be calculated from the day after the expiration of the contractual obligations; If it is agreed that the liquidated damages are continuous liquidated damages paid on a daily (monthly) basis, the limitation of action shall be applied to each single creditor's right separately. If a party raises a prescription defense in a lawsuit, the protection scope of liquidated damages shall be two years before the date when the party files a lawsuit. If the limitation of action is interrupted or suspended during the period, the relevant provisions of the General Principles of the Civil Law on the interruption or suspension of the limitation of action shall apply.

Twenty-four, the handling of private lending and selling houses by agents.

The borrower of non-governmental lending relationship issues a power of attorney when borrowing money, authorizing the lender (or the third person designated by it) to sell the borrower's house. When the borrower fails to repay the loan, the lender (or the third person designated by it) transfers its house in the name of the borrower. The borrower's claim that the sales contract is invalid is generally not supported, unless there is malicious collusion between the lender and the buyer, or the buyer knows or should know that the agent actually has no agency right or abuses the agency right. The Lender shall promptly return the remaining amount after deducting the loan principal and legal interest from the house purchase money collected.

The Borrower thinks that the transfer price of the house agreed in this Contract is obviously too low, and in obviously unfair, the Borrower may exercise the cancellation right according to the provisions in Item (2) of Article 54 1 of the Contract Law. The transfer price is obviously too low standard can refer to the "the Supreme People's Court on the application of.

The court should strictly examine the contents of the power of attorney, whether the conclusion and performance of the sales contract conform to the market trading habits, whether the buyer actually pays the purchase price and visits the house on the spot, and the identity of the buyer.

Twenty-five, private lending and housing debt treatment

If the parties sign the contract before the expiration of the performance period of the private lending debt, and the borrower fails to repay it within the time limit, he is willing to pay off the house owned by himself (or owned by a third party with the consent of the third party) to the lender. The contract is actually the guarantee of the basic loan creditor's rights, and the legal relationship between the two parties should be recognized as private lending according to the true meaning of the parties. Lenders can choose to exercise the following rights: (1) Lenders who advocate repayment according to the original basic lending legal relationship shall be supported; (2) If the lender requires the borrower to handle the house transfer registration formalities under the premise of fulfilling the liquidation obligation, it shall be supported. If the value of the house exceeds the guaranteed basic loan creditor's rights (loan principal, legal interest, etc.). ), the lender shall return the remaining money to the borrower. The value of the house shall be subject to the time when the lender requires the borrower to handle the house transfer registration.

It is a change in the way of debt performance that the parties sign a contract to pay off debts with houses after the expiration of the performance period of private lending debts. The Lender's request to continue to perform the contract and handle the house transfer registration formalities shall be supported. If the borrower thinks that the debt repayment price is obviously too low and unfair, it can be handled with reference to the provisions of the second paragraph of Article 24 of this Summary.

Twenty-six, housing debt and mediation

If the parties file a debt dispute with the court and voluntarily reach an agreement to pay off debts with houses in the lawsuit, the courts at all levels should strictly follow the relevant provisions of the Emergency Notice of the Supreme People's Court on People's Courts Strictly Examining Various false litigation under Real Estate Control Policies, and intensify the examination of possible false litigation cases, and generally do not issue a formal conciliation statement to confirm the contents of the debt-paying agreement. If it is really necessary to issue a formal conciliation statement, it shall be reported to the competent vice president or president of the local court for review.