Chinanews.com, September 21 (Xie Yiguan, reporter from China-News Finance and Economics) When buying a house, the developer encountered changes in the project and delayed delivery; a little carelessness during decoration was routine; after moving in, the property asked to share public expenses...
The commercial housing sector has become a "high-incidence area" for complaints.
In the first half of this year, the National Consumers Association received a total of 5,787 complaints about commercial housing, a year-on-year increase of 23.31%.
According to the "Investigation Report on Consumer Cognition and Clue Collection of "Unfair Standard Terms", the China Consumers Association invited the lawyers of the China Consumers Association to report strong unfair standard terms in commercial housing sales, leasing, decoration, property and other related fields to consumers. Make a review.
When the seller fails to perform its obligations, it is completely exempt from its own deposit liability
Case:
Before the formal pre-sale agreement is signed, if the seller cannot sell due to reasons of the seller, the seller is not bound by any agreement, and only needs to return the deposit without additional interest or compensation.
Comments:
According to the law, when the party receiving the deposit fails to perform the obligations stipulated in the contract, in addition to returning the deposit received to the payer, it should also compensate the payer with the same amount of the deposit, that is, double the return of the deposit.
The provisions of this standard clause completely evade the legal responsibility of the operator for failing to perform the contract, which is very unfair to the house buyer and violates the law.
When the commercial housing sales contract is inconsistent with the content of the advertisement, the "publicity is regarded as an invitation to offer" to avoid responsibility
Case:
When the buyer signed this contract, the buyer has made a comprehensive and detailed understanding of the on-site inspection and relevant documents and procedures. The seller has no false or misleading promises or representations, and the buyer voluntarily purchased the property.
The model houses, publicity materials, real estate advertisements, etc. that the buyer sees on the spot are only used as an invitation to offer, not as a contract basis for the seller to deliver the house to the buyer, and the content of this contract shall prevail.
Comments:
When consumers buy commercial houses at the sales office, the sales advertisements and promotional materials such as sales brochures, real estate models, and model houses carefully produced by developers will have a significant impact on consumers' purchasing decisions. The commercial housing and its ancillary facilities are explained and promised in the publicity materials to attract consumers to sign up for purchase.
According to the law, commercial advertisements and publicity materials that meet the conditions of the offer constitute an offer, and the developer has no right to unilaterally stipulate in the contract that advertisements and publicity materials do not constitute contract content.
When the sales advertisement and publicity materials constitute an offer, the developer shall perform the relevant obligations even if it is not written in the contract.
The seller has the right of final interpretation and exempts himself from responsibility
Case:
The drawings, materials, publicity advertisements, etc. provided by the seller to the buyer in the process of selling the house, unless otherwise specified, are only for the buyer's reference to purchase the house, and shall not be regarded as the content of the contract. right of interpretation.
Comments:
The standard terms should fairly determine the rights and obligations of both parties, and when there are different understandings of the standard terms, an interpretation that is not conducive to the party providing the standard terms should be made.
If the standard terms unreasonably reduce the responsibility of the provider of the standard terms, exclude or limit the rights of the other party, the terms are invalid.
Expand the scope of application of force majeure, exempt from liability for delayed delivery
Case:
If the commercial house is not delivered to the buyer within the time limit specified in the contract due to design adjustment, climate change and other reasons, the seller shall not be liable for breach of contract.
Comments:
This clause is an abuse of force majeure.
Force majeure is an objective situation that cannot be foreseen, unavoidable and insurmountable.
Design adjustment and climate change are not force majeure, but factors that should be fully considered before construction. If the operator fails to deliver the house on time due to design reasons, it should be a breach of contract and should be liable for breach of contract.
Restrict direct transactions between consumers and homeowners after the lease expires
Case:
Within three months after the lease expires and the contract is terminated, Party A (the lessee) shall not make a deal with the property owner of the house by itself, otherwise, it shall pay Party B (intermediary agency) 200% of the monthly rent as compensation.
Comments:
Consumers have entered into a lease contract with the house owner through an intermediary agency. For the opportunity provided by the intermediary agency to conclude the contract or the media service provided by the agency, the remuneration has been paid according to the contract, and the contractual purpose of the intermediary agency has been achieved.
After the lease term expires and the contract is terminated, consumers have the right to negotiate directly with the owner of the house to enter into a lease contract again, which does not fall under Article 965 of the Civil Code. The intermediary agency has no right to restrict the contract, let alone require the consumer to pay remuneration, liquidated damages or compensation for losses.
There are problems in the decoration and construction, and the material costs are passed on to consumers
Case:
During the decoration construction period, Party A (consumer) purchases materials and is constructed by Party B (decoration company). If there is a quality problem due to Party B's construction, Party B is responsible for labor costs during the warranty period, and Party A is responsible for the materials.
Comments:
During the decoration process, after quality problems caused by construction, it is often necessary to dismantle some or all of the original decoration materials for re-construction.
During the dismantling process, the original decoration materials will be partially or completely damaged.
The materials purchased by consumers belong to their own property, and the loss caused to consumers due to the unqualified construction quality of the operator shall be borne by the operator together.
This clause reduces the responsibility of the operator and is an unfair format clause.
The setting standard of liquidated damages is too low, and the operator's default cost is small
Case:
If the construction party violates the contract and the project is overdue, it will pay the consumer a penalty of RMB 20 per day.
Comments:
The setting of liquidated damages should be based on the principle of making up for actual losses. The amount of liquidated damages agreed here is relatively low, which obviously cannot make up for the actual losses caused by not being able to move in in time (such as extending the lease term, increasing the lease cost, etc.) The right of consumers to claim liability for breach of contract is excluded, and the liability of operators is reduced.
The advance payment is regarded as a deposit or liquidated damages, and no refund is given when the contract is terminated
Case 1:
If Party A (consumer) unilaterally cancels the contract except due to force majeure, the advance payment has been paid and Party B (operator) will not refund it; if any losses are caused to Party B, Party A will bear all the losses of Party B.
Case 2:
If Party A (consumer) breaches the contract, the payment made by Party A will be compensated to Party B as liquidated damages.
Comments:
Advance payment is not a deposit in the legal concept. The provisions in the contract clauses that if the consumer rescinds the contract, the non-refundable advance payment does not apply to the "deposit penalty".
The operator unilaterally stipulates that when the consumer rescinds the contract, he will not refund the advance payment or compensate the operator as liquidated damages, which is an unfair standard clause that aggravates the consumer's responsibility.
In addition, when rescinding the contract and assuming liability for breach of contract, the liquidated damages shall not exceed a reasonable amount.
The property company charges management fees but does not bear the civil liability for failing to fulfill its management obligations
Case:
The management of vehicles under this agreement by the property service company only refers to the management of the driving and parking order of vehicles, and does not undertake the obligation to keep the vehicles. The damage and loss of vehicles, theft of property and other property losses occur in the property management area. In the event of personal injury or death, the responsible party shall bear the criminal or civil liability, and the property service enterprise shall not be liable.
Comments:
Property service companies charge the owner's parking space fee and should fulfill their legal or agreed reasonable management obligations.
This clause stipulates that the property service enterprise shall not bear any reasonable responsibility for the damage or loss of vehicles, property theft and other property losses or personal casualties that occur in the property management area, and the property service enterprise shall be exempted from its own responsibility and legal obligations.
Require owners to share utility costs in addition to property management fees
Case:
The comprehensive service fee of the property does not include the public energy consumption fee such as the landscape water system, and the water and electricity fees for the operation of the landscape water system are apportioned according to the actual consumption.
Comments:
The property management area should include public facilities and sites in the community such as landscapes. Therefore, the water and electricity expenses such as greening maintenance, garden pools and fountains in the property management area should be included in the property management service fee, and should not be Additional allocation to the owner.
(Finish)