"Tomb view room" triggers legal debate
"Grave View House" buying and selling disputes occur frequently in many places
● If there are funeral homes, cemeteries, etc. around the community, it is easy for people to contact with unlucky messages such as death, which will affect the psychology of home buyers and will also affect the decision of whether to buy houses in the community. Developers should inform
● my country's current laws and regulations and other normative documents do not clearly define the distance between the community and the cemetery. "Around the community" is actually a relatively vague concept. The seller and the buyer, starting from their respective standpoints, perspectives and interests, can easily form a distinct understanding and understanding
● The developer’s failure to inform the owner of the existence of cemeteries is an act of dishonesty and violates the principle of good faith
□ reporter Wang Yang
□ Our newspaper trainee reporter Bai Chuxuan
Sea view rooms, river view rooms, lake view rooms and mountain view rooms, people know what is going on right away, but only a few home buyers know about the "cemetery view room" mentioned on the Internet. The so-called "cemetery room" refers to the neat, densely packed cemetery scenery by opening the window.
In June of this year, the owners of the Allure of the Heshan Times in Jiangmen, Guangdong, reported that the "mountain view room" that they had bought so hard looked more like a "cemetery view room", and the cemetery and mountain tombs were seen by the window.
Coincidentally. In July last year, Mr. Liu, a citizen of Jinan, Shandong, took a fancy to a real estate and paid a deposit of 20,000 yuan. Then he was surprised to find that there was a 50-acre cemetery 200 meters away from the property.
A reporter from the Rule of Law Daily found that disputes over the sale of "tomb-view houses" have been staged in many places across the country, but the result of the lawsuit is often that the buyer loses the lawsuit. One of the main reasons for losing the lawsuit is because the cemetery is not within the red line, the developer does not need to inform the buyers, and the buyers need to exercise caution.
According to the interviewed experts, only the 2012 "Standards for the Construction of Urban Public Welfare Cemeteries" (draft for comments) of the Ministry of Civil Affairs mentioned that the construction of urban public cemeteries within 500 meters from residential areas is strictly prohibited. This clause was deleted in the "Standards for the Construction of Urban Public Welfare Cemeteries". Due to the lack of corresponding laws, it is difficult for owners who bought the "cemetery view house" to defend their rights.
Frequent complaints about houses near the cemetery
Buyers think the developer is fraudulent
Times Allure is a real estate project of Times China. It is located in Heshan City, Guangdong Province, next to the Dayan Mountain Scenic Area and adjacent to the new 325 National Highway.
According to the owners, Times Allure opened its doors in October 2018, attracting home buyers with favorable factors such as proximity to the forest, good air, and abundant greenery. Compared with surrounding real estate, Times Allure is a high-priced real estate.
"The developer has enclosed the mountain and will not let us in to inspect the house. The only thing we can see is the sand table and model houses. Moreover, the sales department did not announce any publicity, and the sales staff also said that there were no cemeteries and mountain graves." The owners told a reporter from the Rule of Law Daily that they questioned the developer’s false propaganda and even fraud.
The above situation is not an isolated case.
In July of this year, many owners of Building 11 of Evergrande Emerald Longting, Lianhu District, Xi'an, Shaanxi, discovered that a cemetery of about 100 square meters was separated by a wall of the community when they were about to close their houses. When buying a house, the developer only mentioned the surrounding railway, but did not inform that there was a cemetery around the corner.
According to incomplete statistics from reporters from the Rule of Law Daily, since January this year, there have been Yuanyang Wuli Chunqiu Community in Shijingshan, Beijing, Wolong Tianxiang Nanyuan Community in Shaoxing, Zhejiang, Lijing Mansion in Sunshine City, Jinan, Jiangxi, Binjiang Shangpin Community in Nanchang, Jiangxi, Meishan Heng Many community owners, including Datianfu Cultural Tourism City, Shenzhen Jingji Yujingfeng Community in Guangdong, and Jiabei Garden in Xi’an, Shaanxi, have complained and exposed in local forums and local government service platforms because their houses are located close to the cemetery.
The owner of the second phase of Baishang Yuelan Mountain in Hefei High-tech Zone in Anhui left a message on the Hefei government website that there is a cemetery in the south of the community, only 50 meters away from the community. The owner said that "every time I go to the balcony to see the opposite cemetery I feel very bad."
Generally speaking, if the buyer finds that there are cemeteries, viaducts, garbage dumps, etc. around the house, and requires checking out, the relevant laws do not clearly stipulate. However, such unfavorable factors surrounding commercial housing have largely affected buyers' purchase decisions and transaction prices.
In judicial practice, the Intermediate Court of Suzhou City, Jiangsu Province also mentioned in its judgment on the housing sales contract dispute between Huang Xia and Li Yangmei, and Suzhou Haodangjia Real Estate Brokerage Co., Ltd., "According to the daily rule of thumb, when there is a cemetery near the house, It will have a certain impact on the value of the house."
The developer says the cemetery is outside the red line
There is no legal obligation to inform
In the legal dispute of the "cemetery room", there is a common dispute: whether the house is close to the cemetery, whether it belongs to the scope of the seller's information disclosure.
Article 3 of the "Interpretation on Several Issues Concerning the Application of Law in the Trial of Commercial Housing Contract Disputes" issued by the Supreme People’s Court in June 2003 stipulates: "The sales advertisements and publicity materials of the commercial housing are invitations to the offer, but the seller is concerned with the scope of the commercial housing development plan. If the descriptions and promises made for the houses and related facilities within the premises are specifically determined, and have a significant impact on the conclusion of the commercial housing sales contract and the determination of the house price, they shall be regarded as an offer. The descriptions and promises shall be deemed to be an offer even if they are not included in the commercial housing sales contract. It is deemed that the content of the contract, and if the party violates the contract, it shall be liable for the breach."
A reporter from the Rule of Law Daily found that the above clauses often appeared in judgments when consulting relevant cases about the "cemetery room". According to this article, the seller often argues that the "cemetery is located outside the red line, and there is no agreed and statutory disclosure obligation."
It is reported that in the real estate industry, the "red line" refers to the range of land that developers can develop and use, that is, the scope of commercial housing development planning.
In April this year, Ms. Wang, a citizen of Xi'an, bought a real estate in Ziwei, West Chengxi, and later learned that only a wall to the south of the community was the cemetery of nearby villagers.
"When the market opened, the real estate consultant gave a very good introduction, saying that there will be a municipal planning road to the east of the community, which will be particularly convenient for travel. And the bay window of the master bedroom, the second bedroom and the balcony of the living room of the room I chose are all facing south." Ms. Wang said originally. Thinking of the sun room facing south, when the window is opened, there are tombs underneath. When purchasing a house, the sales department did not inform about this disadvantage.
In the petition submitted by the owner, the developer responded to the cemetery: "The cemetery is planned to be residential land. Whether it will be relocated in the future depends on the government's plan. We are obliged to inform us of the unfavorable factors within the red line when the house is sold. Buyers. But for unfavorable factors beyond the red line, there is no legal obligation to inform them."
Some owners stated that Annex 11 of the house purchase contract they signed informed the "Environmental factors that may affect the life and production of the owner within the red line" and "Environmental factors that may affect the life and production of the owner outside the red line." It informed that there is a planned sewage treatment plant near the project, which may have odor impact. However, there was nothing mentioned in the contract regarding the immediate vicinity of the cemetery.
Mr. Wang from Chongqing also encountered a similar situation when buying a house. He fancyed a new house near Biqing Road in Bishan, signed a purchase agreement with the developer and paid a deposit of 20,000 yuan. Later, I found that there was a cemetery one or two kilometers away from the community, so I didn't want to buy a house. But it is not easy to refund the deposit.
The sales consultant said that the cemetery a few kilometers away is not within the red line of the sale of real estate and is not part of the content that needs to be notified to customers. Mr. Wang himself did not take the initiative to mention, the developer is not responsible for this.
Hu Gongqun, a legislative consultant for the Standing Committee of the Beijing Municipal People’s Congress, told the reporter of the Rule of Law Daily that although the cemetery is outside the red line, it is adjacent to the community, which will cause mental stress and negative psychological effects on the owners. At the same time, this information will affect the conclusion of the contract and the housing price. It has a major impact, so the developer is obliged to disclose it when selling the property and cannot deliberately conceal it.
Many local courts dismissed the owners' petition
Be careful when buying and selling houses
However, in judicial practice, the view that "developers are obliged to disclose unfavorable factors outside the red line when selling properties" has not been supported by the court.
On June 24, 2019, in the judgment of the Lishui District Court of Nanjing City, Jiangsu Province on Liu Tao, Miao Mulan and Nanjing Wolong Lake Real Estate Co., Ltd. in the case of a dispute over a commercial housing pre-sale contract, it held that the two parties had not agreed to develop in the pre-sale contract signed. The business should disclose the surrounding conditions outside the red line of the construction plan, and relevant laws, regulations and normative documents such as the "Nanjing Commercial Housing Sales Site Standardization Standard" did not include the reasons Liu Tao and Miao Mulan alleged for the termination of the contract. The content that real estate developers should make public.
Finally, the court ruled to dismiss all claims of the plaintiffs Liu Tao and Miao Mulan.
On April 26 this year, Liu Yuanyuan filed a lawsuit with the People’s Court of Licheng District, Jinan City, Shandong Province, because the east and north neighbors of the Jinan Zhongzhi Real Estate Development Co., Ltd. property he purchased were large cemeteries. The court wrote in the judgment of this case concerning the pre-sale contract dispute of commercial houses: "As a house purchaser, Liu Yuanyuan shall exercise caution in dealing with house transactions involving his own major interests, and shall conduct surveys of the surrounding environment beyond the scope of the development plan. In order to determine whether to purchase the house involved. According to the facts ascertained by this court, there were many cemeteries in Xishanpo before the two parties signed the commercial house sales contract. Liu Yuanyuan should fully evaluate when signing the commercial house sales contract to determine whether to buy the house involved. Therefore, CIIC Real Estate has no statutory obligation to inform. Regarding the surrounding new graves during the development of the real estate involved in the case, it is beyond the control of CIIC Real Estate, and it cannot be determined that CIIC Real Estate has breached the contract. In summary, Liu Yuanyuan requires There is no legal basis for the cancellation of the commercial housing sales contract signed with CIIC Real Estate and the refund of the purchase price and interest. This court does not support it."
In a number of "cemetery house" lawsuits retrieved by a reporter from the "Rules of Law Daily" on the Chinese Judgment Documents website, the court unanimously held that the "Commercial House Sales Contract" and the supplementary agreement signed by the buyer and seller of the commercial house represent the true intentions of both parties. It does not violate the compulsory provisions of laws and administrative regulations and is legal and effective.” There is no legal basis for the buyer’s request for “removal of the commercial housing sales contract” and “return of the purchase price and interest” and other litigation requests are not supported.
According to Guo Zeqiang, a professor at the School of Law of Zhongnan University of Economics and Law, there is currently no clear legal provision regarding the handling of disputes over "tomb-view rooms". On October 29, 2012, the Ministry of Civil Affairs solicited opinions from the society on the first "Urban Public Welfare Cemetery Construction Standards" (draft for comments). Article 13 of the draft for comments stipulates: the site selection of urban public cemeteries should meet the requirements of the local urban and rural construction planning, prioritize the use of barren ridges, and it is strictly forbidden to construct urban public cemeteries in the following areas: cultivated land, forest land; Within 500 meters on both sides of the main line; within 500 meters from residential areas; within the land used for high-voltage transmission and distribution overhead lines in urban and rural areas. However, the "Urban Public Welfare Cemetery Construction Standards" that came into effect on September 1, 2017 will delete Article 13 from the draft for comments.