What is Real Estate Fraud?

Real estate transaction disputes refer to disputes over real estate rights and interests that occur around real estate transactions, including disputes arising from incomplete purchase and sales procedures, one party's remorse and failure to perform the contract, and a third party's declaration of property rights requiring the abolition of the sales contract.

Real estate sales disputes

(1) Advertising problems ^[1]

The basic principles for handling and mediating disputes over real estate transactions are: ^[2]

In recent years, with the continuous improvement of people's living standards, real estate has gradually become an important consumer hotspot, and disputes caused by real estate transactions have also increased. In the process of reviewing appeals in real estate cases, it was found that some judges and lawyers have different views on the following issues: ^[3]

The above three issues are more common in the handling of real estate sales disputes in recent years, and there are also different opinions and viewpoints in handling such disputes. The author talks about his personal thoughts on the above three issues. ^[3]

(I) Regulate the use of transactional rulings in handling real estate disputes

The use of transaction habits to determine the content of the contract and its meaning, and to supplement the omission of the content of the contract, has become a contract interpretation principle stipulated in China's contract law. Article 61 of the Contract Law stipulates: "After the contract comes into effect, if the parties have no agreement on the quality, price or remuneration, place of performance, etc., or the agreement is not clear, they can be supplemented by agreement; if no supplementary agreement can be reached, the relevant terms of the contract or transaction Customs are determined. "Article 125 states:" If the parties have a dispute on the terms of the contract, they shall determine the true meaning of the terms according to the terms used in the contract, the relevant provisions of the contract, the purpose of the contract, the trading habits, and the principle of good faith. . "

What is a trading habit? The definition of habit in the Modern Chinese Dictionary (Commercial Press, 1983 Edition) is "behavior, tendency, or social trend that has been gradually developed over a long period of time and cannot be easily changed for a while." Trading habits refer to behavior rules that are formed by specific groups based on long-term repeated practice and are generally accepted and recognized. According to the applicable scope and geographical division of trading habits, it can be divided into general trading habits, special trading habits and party-specific trading habits. Universal trading habits refer to the practices that people generally follow in the course of transactions in various industries; special trading habits include industry habits and local trading habits, and refer to the customary and generally observed trading practices agreed by people in a certain industry or locality; The transaction habits peculiar to the parties refer to the transaction patterns or practices formed by the long-term transactions between the parties, and the practices only occur between the parties.

How to determine the trading habits? The understanding of the trading habits itself is more arbitrary, and in the determination process, it is more subjective. The parties are determined on their own side. The parties may determine the transaction habits according to the evidence rules of "who advocates and who gives evidence", which shall be proved by the confirming party. So how does the judge deal with the transaction habit as the basis of the judgment? Is it determined by the judge s subjectivity? For example, in the trial of the aforementioned real estate transaction dispute case, the judge judged "pay first and then pay the house" and "the price is subject to the final delivery of the house" It is considered to be "transactional habits". Such "transactional habits" without a basis for identification are often unfair to one party and undermine justice and justice.

In the real estate sales contract, if the price is uncertain, it shall be based on Article 62 (2) of the Contract Law, "If the price or remuneration is not clear, it shall be performed at the market price of the place at which the contract was executed; according to law, government pricing or If the government guides the price, it will be performed in accordance with regulations "to determine the house price. If the execution time is not clear, the execution time shall also be determined according to the contract law and relevant judicial interpretations. When relevant content really needs to be explained with trading habits, you should be cautious. The transaction habits in real estate cases should be attributed to industry transaction habits or local transaction habits. Such transaction habits are rarely advocated by the buyer (buyer), and more often by the seller (developer). The claimant should provide evidence to prove its position. The content and existence of the proposed trading habits. The judge should strictly limit the procedures of using trading habits when judging the use of trading habits, and make logical explanations of trading habits to prevent the trading habits from becoming the "trading habits" of the judge's subjective cognition. abuse.

(2) Strict identification of a third party in good faith

In real estate transactions, the right holder on the register is the target of the transaction. Generally, a third party in good faith does not appear, but sometimes the real estate department is registered by improper means by a party in the joint relationship, or when the estate is not divided. If it is sold by others in an infringing manner, when a third party purchases this house, should the third party be regarded as a third party in good faith and protect its rights? There should be strict requirements for the identification of a third party in good faith. Article 89 of the Supreme People's Court's "Opinions on the Implementation of Certain Issues of the General Principles of the Civil Law of the People's Republic of China (Trial)" stipulates that during the existence of the common joint relationship, some co-owners disposing of the common property without authorization are generally deemed invalid. However, if a third party acquires the property in good faith and with compensation, the lawful rights and interests of the third party shall be safeguarded; for the losses of other co-owners, compensation shall be made by those who dispose of the joint property without authorization. The judicial interpretation of this article stipulates that the goodwill acquisition system can be applied to the common property, and the understanding of "property" in the interpretation includes that "real property" and "movable property" have gradually become a consensus. However, in the acquisition of real property in good faith, its constituent elements must be strictly controlled and strictly controlled.

According to the theory of good faith acquisition of movable property, the constituent elements of the third party's good faith acquisition in real estate transactions can be logically deduced. The following four points should be included: (1) the contract is valid in accordance with the law; (2) is unknown or not at the time of transfer It should be known that the assignor has no sanctions; (3) the transfer is paid at a reasonable price; (4) the registered real estate has been completed in accordance with the law. A third party may be deemed to be a bona fide third party only when the above-mentioned four requirements are fulfilled, that is, after the contract for the sale of commercial housing has been performed and the third party has been registered as the new owner. In the implementation of the contract for the sale of commercial housing, the third party is always in good faith, then it should be identified as a third party in good faith, and the law should protect the third party's legitimate rights and interests. When the contract is signed without knowing the disposition person has no disposition right, the third person is in good faith; if the disposition person is known before the property is transferred, that is, before the contract is completed, the third person is converted from good faith to malicious. Therefore, if the contract is not fulfilled, it is not suitable to judge the third party, or it has no actual value to the third party, because at this time the third party only has the right of claim.

Therefore, two criteria should be determined for judging whether a third person is goodwill: one is the criterion of time; the other is the criterion of value. Under normal circumstances, the completion of the contract can be used as a time criterion for judgment, and the completion of the sale of commercial housing contracts is generally based on the completion of the transfer of real estate as the criterion. Therefore, in the dispute over the contract for the sale of a commercial house, whether the third party is in good faith should take the completion of the transfer formalities as the time criterion for judgment, and whether it knows the truth and pays the consideration as the value criterion for judgment.

(3) A receipt with the main terms of the contract shall be deemed to be a purchase agreement between the two parties

Article 5 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial House Sales Contracts, stipulates that the agreements for the purchase, order, and reservation of commercial houses have the main content of the commercial house sales contract stipulated in Article 16 of the Measures for the Administration of Commercial House Sales If the seller has received the purchase price in accordance with the agreement, the agreement shall be regarded as a contract for the sale of commercial housing. Before the developer obtains the pre-sale license for the commercial house, the developer has already received the prepayment of the house from the purchaser, and the receipts issued clearly specify the terms of the parties to the contract and the specific subject matter. Although the contract does not have the form of an agreement, but its content As far as the substance of the agreement is concerned. If a development company obtains a commercial house pre-sale license before the lawsuit, this agreement may be deemed valid. The two parties should perform strictly according to the contents of this agreement. If there is no clear price on the receipt, then the market price at that time should be determined according to the date of receipt to reasonably perform the contract.

Regarding the nature of the prepayment by the buyer, the deposit penalty cannot be applied because one party breached the contract, it is only of the nature of prepayment. Only when it is clearly stated on the receipt that the deposit is a house purchase, can the deposit penalty be applied to bind the parties.