One, incident origin: In August 2016, xi'an citizen Ms. Chen is one-time the way that pays to pass in-house subscribe more than yuan 1.66 million bought yew manorial building. After two years, below the setting that shoots up in house price, development business Xi'an hears day science and technology industrial group limited company (the following abbreviation hears weather firm) open to booking licence with be being done not have at that time for, sue 12 owner respectively to the court, the requirement affirms in-house subscribe contract is invalid.
As hold estate attorney, the author has handled cases of many similar issue of commodity house business, so, we analyse the law in this case to concern together, let each person that buy a house can understand among them concern, prevent to appear again similar issue.
Very apparent, if such doing,do not have advantage to oneself, why is development business met contradict oneself disables with the contract for sue the owner that buys a house ask to affirm the contract that buy a house is invalid to the court, ask to return a house? Development business is such contradict oneself, what obtain interest no more than: 1, the pressure that through opening to booking commodity house financing to alleviate early days builds capital, 2, the price difference between price of fixed proportional contract and market price case is obtained after the contract is invalid.
" top people court about hearing case of dispute of contract of commodity house business applicable law the explanation of a certain number of problems " the 2nd regulation, "Betray a person to did not obtain commodity house to open to booking a license to prove, the commodity house that concludes with vendee opens to booking a contract, ought to maintain invalid, but commodity house is obtained to open to booking a license to prove before sue, can maintain effective. " the 5th regulation, "The subscribe of commodity house, order, book wait for an agreement to have " commodity house sale runs way " the main content of the contract of commodity house business of the 16th regulation, and betray what the person has received the fund that buy a house according to the agreement, this agreement ought to be maintained for contract of commodity house business. This agreement ought to be maintained for contract of commodity house business..
2, since develop business to had been sued to the court, so how can be the court handled?
Above all, look from hypostatic respect: Since this case is contract dispute, should determine the effectiveness position of the contract above all, the court is in first instance court decision to this case contract effectiveness maintaining is to not have by accident, the processing principle after the contract is invalid is: Return return belongings and compensatory loss. Return return property and character, development business should be returned return vendee to buy a house paragraph and with bank of the corresponding period loan interest rate is calculated income interest. With respect to compensatory loss character, in view of development business knows perfectly well him to was not obtained open to booking licence to still undertake selling, invalid to the contract have bigger mistake, development business was not examined to whether be satisfied seriously when vendee signs a contract open to booking a condition, disable to also have certain fault to the contract. Accordingly, should the contract the price and the loss that show the price difference between level market value to serve as vendee, this loss undertakes partaking according to bilateral fault scale.
Next, this case is told from the program, development business serves as accuser, the requirement is sued to affirm the contract is invalid in first instance, but vendee is in first instance not counterclaim asks to return still buy house money and compensatory loss, show vendee appetent in the counterclaim in 2 careful, the court ought to be mediated above all, those who do not mediate, vendee can be sued separately only. Return still buy house money and compensatory losing request not to do processing in 2 careful, but if development business agrees with what try along with all the others, the court can be handled along with all the others. If vendee is sued separately, return return belongings and compensatory losing request, ought to get the limitation of litigant effectiveness for a given period of time.
3, the inspiration that gives the person that buy a house
In this case, development business knows perfectly well him to did not obtain commodity house to open to booking licence, still undertake selling, did not obtain with oneself again ever since open to booking the requirement affirms the contract is invalid for licence, disobeyed badly " honest credence " principle, but how to do ability to prevent similar incident to happen again as the person that buy a house?
1, the main body qualification that hair business runs from opposite directions without fail before buying commodity house undertakes check and affirming, can be in about developing the main body information of business " information of state enterprise credit is public show a system " the industrial and commercial registering information that inquires its are basic, although what obtain content is not too much, but can pass inquiry to have a basic knowledge to developing business at least, accomplish know fairly well;
2, whether does inquiry development business have commodity house to develop aptitude. The housing that can land place commonly and the website that urban and rural construction is in charge of a branch undertake inquiring, the aptitude social estate that develops business can be stated in detail above.
3, since want to buy a house, whether is the building that inquires place is about to buy even had open to booking a condition. Involve already here " 5 card " , namely " state-owned land uses card " , " construction uses ground program permit " , " licence of construction project program " , " permit of construction project construction " , " commodity house opens to booking licence " , have only afore-mentioned " 5 card " building ability undertakes opening to booking, develop business and purchaser to sign otherwise " contract of commodity house business " should belong to invalid contract. Specific how to inquire? The housing that also is entry place commonly and the website that urban and rural construction is in charge of a branch can inquire. If be had no on the website fair show, can head for local housing and inquiry of branch of urban and rural construction personally.
