The buyer signed a check-out agreement without reason but could not return the house
What are the hidden pits behind "no reason to check out"
□ Trainee reporter Zhang Shoukun
□ reporter Wang Yang
"Check out without reason" is a sales strategy introduced by some real estate developers in recent years.
Especially since last year, due to the impact of the new crown pneumonia epidemic, the property market has been cold, and "no reason to check out" has been used by many real estate companies as an "icebreaker" tool to attract home buyers.
According to incomplete statistics from reporters of the Rule of Law Daily, in 2020, more than 15 national real estate companies have issued "no reason to check out plans."
From December 8th last year to January 8th this year, a real estate brokerage company promised to provide consumers with exclusive brokerage services and unreasonable check-out services. The number of real estate involved exceeded 7,000, covering 62 cities across the country, including Vanke and Country Garden. , Sunac, Poly, Sino-Ocean, Blu-ray, China Resources and other well-known brands.
However, the reality is that many buyers have encountered "indefinite refund" and "refusal to check out" when checking out.
As of January 28 this year, there were as many as 1,420 cases related to "check out without reason" on the Chinese Judgment Documents Online.
Experts interviewed by a reporter from the Rule of Law Daily believe that "checking out without reason" has changed from a good thing to a marketing gimmick, which has nothing to do with the lack of marketing sincerity of real estate companies, the lack of awareness of consumers' rights protection, and the lack of supervision by relevant departments.
Therefore, real estate companies should honestly explain the situation before selling. Consumers should pay attention to signing relevant agreements and retaining evidence. Regulatory authorities and corresponding regulations should also follow up in a timely manner, so that "no reason to check out" truly becomes "reassurance."
No reason to check out agreement is valid
Homebuyers are experiencing difficulties with refunds
A reporter from the Rule of Law Daily found that on social platforms such as WeChat and QQ, there are many rights protection groups established due to difficulties in checking out. Mr. Wang from Guilin, Guangxi is one of the many group friends.
According to Mr. Wang, he bought a house in Hengda Yuelong Bay, Fangchenggang, Guangxi in 2018.
At that time, the advertisement posted by the sales office and the salesperson promised to check out without reason, and he also signed an agreement to check out without reason.
Because a chemical plant was built in the surrounding area, Mr. Wang was worried that it might affect his health, so he applied to the developer to check out, but the other party has been postponed indefinitely because the agreement did not specify the refund time limit. From January 2019 The application has not yet been refunded.
A reporter from the Rule of Law Daily found in the unreasonable check-out agreement provided by Mr. Wang that there is indeed no relevant stipulation on the time limit for refunds, and the date of signing is also blank.
It is understood that in addition to the situation encountered by Mr. Wang, some real estate companies will perfunctory and prevaricate home buyers for reasons such as invalid verbal promises, numerous refunds, and liquidated damages.
So, does the "check out without reason" promised by real estate developers have legal effect?
Lou Jianbo, director of the Real Estate Law Research Center of Peking University Law School, told the reporter of the Rule of Law Daily that in reality, a real estate company gave an unreasonable check-out agreement with only the company seal but no signature by the relevant person.
The unreasonable check-out agreement can be regarded as the right of cancellation agreed by the buyer and the seller that only the buyer has the right to cancel the agreement. Generally speaking, there is no violation of laws, administrative regulations and social public order and good customs. If it is the true intention of both parties, It should be considered true and effective.
Lou Jianbo said: “Although there is no signature or only an oral agreement, the buyer has already paid the corresponding payment and the developer has accepted it. According to the Civil Code, the two parties did not sign a written contract, but one party began to perform the application that the other party also accepted. Confirm that the contract is valid."
Lin Hongyu, a lawyer from Sichuan Yingling Heshi Law Firm, told a reporter from the Rule of Law Daily that, whether orally or in writing, the contract should be determined to be valid according to the provisions of the Civil Code, but "there are often problems with the determination of evidence in judicial practice."
A reporter from the Rule of Law Daily searched the China Judgment Documents website for “no reason to check out” cases and found that the court generally believed that the unreasonable check out agreement was legal and effective, and most of it ended in the consumer’s victory.
Lou Jianbo said that "checking out without reason" as a promotional tool can indeed protect the rights and interests of buyers.
"The judicial interpretation of the commercial housing purchase contract actually stipulates the legal right to cancel the purchase of commercial housing. If the developer’s behavior does not meet the requirements of the legal right to cancel, but it does affect the purchase of the commercial housing, the consumer can then rely on'no reason to return Application for refunds under the housing agreement is a more convenient and effective protection for the rights and interests of consumers. At the same time, it also has a supervisory role for developers. If there is a problem with the performance of the developer, the buyer may directly exercise this right ."
Not unconditionally check out in full
Buyers bear corresponding obligations
"It is particularly important to note that'check out without reason' is not the same as'unconditional refund'."
In Lou Jianbo’s view, in addition to the merchant’s prior promise and remorse afterwards, the main reason for the difficulty of “checking out without reason” is that when the buyer and seller signed the agreement for checking out without reason, the seller did not specify the buyer’s possible corresponding obligations. You may not care about it.
Regarding the unreasonable check-out agreement provided by Mr. Li, a citizen of Suihua, Heilongjiang, a reporter from the Rule of Law Daily noted that according to the agreement, Mr. Li has the right to check out without reason at any time before check-in. Exercising the right to check out without reason, in addition to the fact that there is no breach of contract, the mortgage application materials must be reviewed and approved by the bank, and the part-time salesperson commissions that have been paid must be deducted from the refunded building payment.
This made Mr. Li very confused: when the agreement was signed, the staff did not introduce much, and he did not read it carefully, and after the signing, the original was kept at the sales office, and there was no reason to check out. , Why are there so many more conditions now?
According to a reporter from the Rule of Law Daily, in reality, it is almost as difficult as Mr. Li to exercise the right to check out without reason.
Some real estate sales staff tell the buyers that if they don’t sign the unreasonable check-out agreement, they will get a big gift package or cash reward; on the other hand, they will post the unreasonable check-out agreement on the sales office and vigorously promote it through verbal agreement. The buyer creates an illusion that signing or not signing does not affect the exercise of rights, but tells consumers that they must have a signed agreement before they can exercise.
Even if an agreement is signed, key areas such as the refund time limit, how the check-in time is calculated, etc. will be left blank, and an explanation will be made to your advantage at that time, and it will also agree that there is no breach of the contract, a certain percentage of down payment, and mortgage information The real estate company only chooses to accept the refund application after the bank has reviewed it and the payment of the commission has been approved.
Even through these difficulties, it is not easy to get a refund.
"The company has to go through the process of receiving the payment. The city has to report to the province, and the province has to report to the head office. It will take some time for the head office to approve and issue." Ms. Peng, a sales consultant for a real estate company in Huaibei, Anhui, revealed to a reporter from the Rule of Law Daily , Even for a deposit of 20,000 yuan, the fastest time from application to approval takes 6 to 9 months, not to mention the purchase of millions of yuan at every turn.
Lou Jianbo believes that it is not necessary for real estate companies to check out in full without any conditions. Reasonable expenses incurred during check-out without reason. If you choose to let consumers bear it, you need to explain to consumers in advance.
But this condition does not mean that "unconditional check-out" has become a "conditional refund".
"Even if the consumer rights protection law stipulates a seven-day refund without reason, it also stipulates that the goods returned by consumers should be intact, which is understandable."
"And if the seller previously promised a'no reason to refund', but in the end does not recognize this agreement, then it may constitute fraud and need to bear relevant legal liabilities." Vice President and Secretary-General of Beijing Real Estate Law Society Zhao Xiuchi said.
In addition, according to Zhao Xiuchi, how much the purchase price can be refunded when checking out is also a focus of controversy. “The tax, interest, etc. generated are not refundable and how much is refunded. In practice, there are still room refunds but no parking fees. In the case of refunds, these are often not agreed or explained by both parties when they signed the agreement to check out without reason."
Make good use of judicial confirmation in case of disputes
Perfect the system to be a good escort
What should I do if the buyer signs an agreement to check out without reason, but when he wants to check out, he encounters "indefinite refund" or "refusal to check out"?
Lin Hongyu believes that one of the most practical suggestions is to make good use of the judicial confirmation system.
She has dealt with many disputes caused by "checking out without reason", and one case is still fresh in her memory: Buyer A signed the contract of intent to order the house, the contract for purchase of the house and the agreement to check out without reason, and did not read the terms carefully. After the signing, the developer did not return the payment for the house, but he was perfunctory when he asked the developer for the theory.
After buyer A entrusted a lawyer, they found a neighborhood people’s mediation committee to come forward for mediation and reached a mediation agreement with the developer, focusing on agreeing on the refund time and expected refund liability for breach of contract, and applying to the people’s court for judicial confirmation. They did not perform, according to the effective mediation agreement ruling, they directly applied to the court for enforcement, and successfully recovered the purchase price of the parties.
Lou Jianbo suggested that when a buyer signs a check-out agreement with the seller without reason, he must specify the refund period, what documents are required for check-out, and what fees need to be paid.
Even if the agreement is not signed, it must be stated in the remarks on the house purchase contract, or the relevant evidence must be fixed through audio or video recording.
Even if disputes arise in the future, they are easier to resolve.
Zhao Xiuchi said that the relevant departments should formulate relevant institutional arrangements for unreasonable check-out, including the definition of unreasonable check-out, procedures, refund time, breach of contract, dispute resolution arrangements, etc., to check for consumers.
On November 23, 2020, the Bureau of Housing and Urban-Rural Development of Qingyuan City, Guangdong Province issued the “Notice on Printing and Distributing the Notice on Further Regulating the Promotion of Commercial Housing Sales Information and Pre-sale Notification Behaviors”, requiring real estate development companies to adopt “can check out without reason” "For sales in the form of ", the refund time limit shall be specified.
In Lou Jianbo’s view, compared with the “Notice on Promoting the Use of the “Dongguan Commodity Housing Subscription” issued by the Dongguan Housing and Urban-Rural Development Bureau in 2019, “House buyers shall be within two natural days from the date of signing the subscription. Requirement to cancel the subscription letter to return the deposit, if the two parties have not signed the "Commercial Housing Sales Contract", the seller shall refund the" regulations, Qingyuan City's regulations obviously go further.
Because there is still a gap between the subscription letter and the commercial housing sales contract, and only the deposit is refunded.
He hopes that in the future, more comprehensive, detailed, nationwide "no reason to check out" regulations will be issued.