In real estate transactions, buyers and sellers or lessors should pay attention to guard against their own risks. Similarly, as a real estate intermediary company, we should also pay attention to guard against our own risks.

1. Capital risks such as custody deposit, mortgage deposit and down payment.

When one party breaches the contract, shall it be returned to the buyer, the seller or neither party? Can I deduct the deposit?

Take the deposit as an example. If there is no special agreement, the deposit generally kept in the intermediary company should be lent to the seller on the condition that the seller gives the original red real estate license to the intermediary company and several working days after the file is checked clearly. However, if one party breaches the contract during the transaction and fails to meet the termination conditions agreed in the contract, should it be returned to the observant party?

The buyer thinks it should be returned to the buyer. The reason is that if the seller breaches the contract, the deposit should be doubled, and the deposit entrusted to the intermediary company is actually paid by itself. The intermediary cannot give it to the seller and should return it to the buyer.

The seller thinks it should be returned to the seller for the following reasons: if the buyer defaults, the above deposit should naturally be handed over to the seller for confiscation; If the seller breaches the contract, it cannot be released to the buyer, because the seller has already issued a deposit receipt to the buyer, and the intermediary company has also issued a deposit escrow receipt to the seller, so the escrow deposit already belongs to the seller. That is to say, if the seller wants to double the deposit to the buyer, the buyer should also directly claim to the seller that the intermediary company has no right to pay the money belonging to the seller to the buyer.

At the same time, there is a more important question for the intermediary company, whether the intermediary company has enough evidence to prove which party is in breach of contract.

Therefore, in practice, when buyers and sellers file a lawsuit for breach of contract with the court, the defaulting party identified by the court according to the evidence may not be completely consistent with the judgment of the intermediary company. Therefore, when the intermediary company puts the deposit to the defaulting party identified by the court in advance, the court will judge the intermediary company and the defaulting party to bear joint and several liability from time to time.

Therefore, in order to reduce the risk of the intermediary company, the best way for the intermediary company is-no one will let go, no matter the seller or the buyer, of course, no commission will be deducted until the dispute between the two parties is finally decided by the court or arbitration institution, or both parties submit a dissolution agreement to the intermediary company.

Second, the commission risk of intermediary service fee payment and calculation.

Common disputes mainly include intermediary service fee disputes arising from private transactions between buyers and sellers (commonly known as "jumping orders"); Disputes over the payment and calculation of intermediary service fees due to the failure of the transaction caused by the breach of contract by one of the buyers and sellers.

When the buyer and the seller (lease) fail to pay the commission after the intermediary company provides the service, it has been explained in detail in the previous chapter and will not be repeated here. This chapter mainly discusses the calculation of commission and necessary expenses, and should pay attention to the following matters:

1. In the contract or letter of commitment, the buyer and the seller shall agree on the amount of necessary expenses not less than 20% of the commission. In the case of preventing one party from breaching the contract (not excluding the seller's breach of contract), there is no contractual basis for the intermediary company to charge the defaulting party the necessary fee when it cannot collect the commission.

2. For the time and conditions of commission payment, it is best not to add unpredictable or uncontrollable additional terms at will. For example, a salesman agreed in the contract that if the seller did not receive all the house payment before June 1, he would not have to pay the intermediary commission. As a result, the loan approval was delayed due to the tightening of bank credit at that time, so the seller did not receive all the house payment until June 3, and the buyer refused to pay the commission. Therefore, the intermediary appealed to the court to recover the commission from the seller, which was ultimately not supported by the court.

Three, the main risk of invalid housing sale or lease contract.

Such disputes are mainly caused by unqualified qualifications of buyers and sellers or defects in the subject matter of the contract. The common situation is that the property right of the house * * * Someone sells the house without the consent of others * * *; The house is included in the scope of demolition, and the seller's real estate license has not been issued, which leads to the legal consequences such as invalid house sales contract, inability to deliver performance or inability to handle transfer procedures, which leads the third party or buyer to sue the seller to the court, often demanding that the intermediary company be liable for compensation on the grounds of fault.

4. The performance risk of one party's failure to perform the default transaction.

If the buyer and the seller or the lessee breach the contract and the transaction cannot be performed, the intermediary company will often be listed as a third party for litigation. At this time, the intermediary company should pay attention to:

1. Does the intermediary company have any breach of contract, such as overdue release, overdue foreclosure, loss of important documents, etc. ? Is there a causal relationship between the intermediary company's default and one party's default? If there is no intermediary company, it will generally not bear legal responsibility.

2. The intermediary company shall send the performance reminder letter, notification letter and other documents in time, and pay attention to retaining the relevant evidence of one party's breach of contract or performance, so as to protect the performing party and guard against its own risks.

5. Transaction risks such as the house being sealed up, unable to redeem the house and unable to apply for mortgage.

If the transaction cannot be conducted due to the above objective or non-subjective intentional reasons, the intermediary company should pay attention to:

1. Let's see if we can try our best to take remedial measures to keep the transaction going.

2. If it is really not possible, do a good job of communication and explanation between the buyer and the seller, urge both parties to terminate the contract, resolve disputes, and find other trading opportunities.

3. Intermediary companies should fulfill the obligation of careful examination in the transaction process, such as checking the files in time, asking and printing the repayment list of the seller, the real estate and credit status of the buyer in time, so as not to be liable for compensation.

Six, employees do private orders, eat the difference, misappropriate funds or even abscond with money and other internal management risks.

In the intermediary companies, especially the rental bills, it can be said that the phenomenon of private bills has been repeatedly banned. Because they all sign tripartite contracts, the price of buying and selling leases is relatively transparent, but it is not unique to overcharge commissions and eat the difference. At the same time, employees, especially managers, misappropriate funds or even abscond with money. For this kind of employee internal management problems, we think:

1, company management should be standardized, establish and improve the corresponding rules and regulations,

2. Standardize business processes and constantly revise scientific and perfect business electronic data systems.

3. Strengthen the supervision mechanism, including internal supervision and external supervision, especially external supervision.

4. When receiving and paying money, it is required to read not only the receipt, but also the detailed contract, including the sales contract, the fund custody agreement and the supplementary agreement between the two parties.

5. Strengthen the management of petty cash. In addition to auditing accounts, clerks, regional managers and other branches shall conduct spot checks or comprehensive inspections on contracts and documents regularly or irregularly.

6. Strictly stop salesmen from writing IOUs, control the management of foreign collection, issue a reminder in the company's branches or related contracts prohibiting salesmen from writing IOUs to customers, and announce the reporting methods, and welcome customers to report.

7. Strengthen the training of financial knowledge, legal awareness and professional ethics in business departments.

7. There is no risk of administrative punishment in the operation of real estate license, yin-yang contract and three-party private contract.

First of all, in recent years, Shenzhen has successively issued a series of normative documents on real estate intermediary services. Although it has played a role in regulating the real estate intermediary service market, these normative documents have a strong administrative color, and some of them have no legal effect in a strict sense, but only manage and regulate the real estate intermediary activities. The General Principles of Civil Law and Contract Law can solve many problems of real estate intermediary contract disputes, but the provisions on intermediary contracts are very limited, which makes it difficult to deal with increasingly complex real estate intermediary dispute cases.

However, if some "high-voltage line" intermediary companies in the specification violate the specification, it will have serious consequences, such as website publicity, being included in the "blacklist" of dishonesty, and locking the company system to print the official contract of the Land and Resources Bureau. Intermediary companies should be avoided, and pay special attention to:

1. Resolutely do not operate bills without real estate license.

2. The intermediary company fails to affix its seal and sign on the confirmation letter of price change of Yin-Yang contract.

3. Don't sign a handwritten tripartite contract, that is, only the buyer and the seller sign a real estate sales contract, and then sign a tripartite fund supervision agreement.