专业团队

　　北京市第一中级人民法院日前进行的一项调研显示，在该院近期审理的房屋买卖合同纠纷案件中，买房人违约的案件量明显增多，其中不乏炒房客因房产新政颁布后炒房风险增大，不愿继续履行合同而违约的案件。以下为北京市一中院最近审结的一起具有代表性的案件。 　　以案说法 　　李先生在海淀区成府路附近有一套60平米的房屋要出售，今年4月10日，其通过某房产中介与魏某签订房屋买卖合同，约定房屋成交价为150万元，魏某应在签订合同时支付定金5万元并于4月15日前支付房款85万元；双方于签订合同2个月内办理房产公证手续，魏某于公证当日支付剩余房款60万元后，李先生将房屋及房产证、公证书原件交付给魏某，所有税费由魏某承担。合同签订后，魏某如期向李先生支付了定金和首付款共90万元。双方通过某房产中介协商于6月7日共同到公证处办理委托公证，但后来双方就委托公证范本未能达成一致意见，最终未能办理公证手续，就此发生争议。李先生遂诉至法院要求魏某继续履行合同、支付剩余房款并按照合同违约条款承担迟延履行违约金。魏某则反诉要求李先生限期出具合法并能实现合同目的的公证委托书、承担迟延办理房产证的违约金。 　　本案看似一起简单的房屋买卖合同纠纷案件，实则背后隐藏着炒房客以买房自住之名投机炒房的玄机。为规避买卖房屋的相关税费，降低转卖成本，职业炒房客购房时一般不办理过户手续，而是在签订植入特别条款的买卖合同后，找出各种理由，要求业主到公证处办理房屋所有权和房屋买卖过户等事项的委托公证书，如果这时业主发现遭炒房客算计而不愿履行合同，炒房客便会要求业主赔偿违约金。这种操作方法符合炒房客低买高卖的运作原则，以较少资金换取较大回报，另外，也可规避楼市新政对个人新购房屋套数的限制，使其在新政颁布后仍能继续炒房。 　　法院经审理认为，李先生与魏某所签合同虽约定双方于签订合同后2个月内办理公证手续，但因约定不明，双方对公证的具体内容、时间和办理手续等事项产生分歧意见，导致合同未能继续履行。魏某与李先生签订房屋买卖合同的目的，在于通过买卖行为在双方之间完成房屋所有权的移转，并非通过买卖合同完成委托公证，是否进行委托公证并不影响合同目的的实现。因此，在合同未明确约定公证委托具体事项的前提下，魏某要求李先生出具合法并能实现合同目的的公证委托书的请求缺乏依据。因双方均同意继续履行合同并办理房屋过户手续，故魏某应在双方自行办理过户手续后，将剩余房款支付给李先生。最终，法院判决双方继续履行合同，驳回李先生的其他诉讼请求和魏某的反诉请求。 　　炒房客惯用伎俩揭秘 　　法院经调研发现，此类案件有一些共通之处，炒房客与业主签订房屋买卖合同时，合同中往往含有公证条款，目的在于从业主处取得该房屋出售、过户等相关事项的代理权，从而在下次买卖中，将房屋从该业主名下直接过户给新的买房人，以此达到获取更多差价的目的。公证条款往往先进行模糊约定，从而不至业主在签订合同时生疑拒签。从表面看，炒房客是为买房自住，且按合同约定实际支付大部分甚至全部房款，但这只是骗取业主信任的一个步骤。合同履行过程中，炒房客一般会找出一些理由，比如声称买房实际由其父母出资，房产证可能要写父母名字，可先将办理买卖过户等事宜委托给炒房客本人办理，以此作为业主办理房屋过户手续的替代方式，从而为自己留下炒房的活动空间；或主张为防止支付房款后不予过户情况出现，可委托给房产中介某业务员，由其作为共同信任的监督人办理房屋买卖过户等事宜，而实际上该业务员是炒房客在“黑中介”中的“同伙”，与炒房客一同“做笼子”让业主往里钻。 　　有的业主没有识别出炒房客的“阴谋”而径直配合其办理公证手续，有的业主虽有顾忌，但担心自己违约，且认为炒房客已支付价款，最终往往无奈地予以配合。本案中，李先生在签订房屋买卖合同时没有注意到公证条款，当魏某要求按照其提供的公证范本办理委托公证手续时，李先生发现魏某有炒房的嫌疑，但为了继续履行合同而不至违约，李先生希望仅将公证授权范围限制为办理过户，不能包含买卖和网签等事项，遭魏某拒绝。因具体的公证内容未在买卖合同中明确，所以并不能直接将未办理公证而导致合同无法继续履行的责任归结为一方，使李先生陷入进退两难的被动境地。 　　二手房买卖遭遇炒房客风险大 　　有人会质疑，若炒房客能够按照合同约定支付全部房款，那何必还要计较他怎样处置房子？其实遇到此种炒房客，不管对卖房的业主还是下一个买房人来说都有巨大安全隐患。 　　对卖房的业主来说，如果办理公证，虽然业主最终能取得全部房款，表面上看没有经济利益的损失，但存在一系列风险。首先，炒房客将该房屋转卖他人，炒房客只是名义的卖房人，形式上是代理原业主出售，若该合同履行过程中产生纠纷，新的买房人可能主张原业主与炒房客存在恶意串通的行为，一旦发生诉讼，原业主将被直接列为被告；因原业主已将房屋交付炒房客并取得价款，实际占有人和使用人已随之转变，炒房客再行转卖甚至进行多次转卖，产生纠纷后，新的买房人会要求买卖合同的相对方——原业主交付房屋，原业主必将承担一房二卖甚至一房多卖的法律责任；若炒房客在使用房屋过程中破坏了房屋结构，将房屋进行修饰后转卖，新的买房人入住后发现质量问题，会直接向原业主主张修复或赔偿；因房屋未过户，在炒房客寻到下一个买家前，若将房屋租赁给他人，或在该房屋内进行其他违法乱纪活动，原业主作为房屋的所有人可能为此承担更重的法律负担；更有甚者，若炒房客未向原业主支付全部房款，一旦其将房屋转售后卷款逃走，后果更不堪设想。 　　对新的买房人来说，买房遇到炒房客亦有较大弊端。首先，以不满五年的普通住宅为例，按照交易习惯，二手房交易的营业税一般约定由买房人承担，正常交易途径下，炒房客从原房主处购买时应按照房价款差额征收营业税，炒房客再次转让给新的买房人应再次按差额收取营业税，但因炒房客不办理过户和交税，所以新的买房人是按照原房主购房价款为基准计算营业税，实际上是炒房客将本应由自己承担的大部分税费转嫁给新的买房人；因炒房客不是实际房屋产权人，对房屋状况不甚了解，还会为了提高转卖价格进行简单装修，隐藏房屋缺陷，买房人最终买到的可能不是其理想的房屋；房屋物业、供暖、水电气、有线电视、电信等事项的办理可能会涉及实名的问题，这些工作炒房客往往不能直接办理，新的买房人会因此产生不必要的麻烦；若遇到炒房客一房多卖，则买房人难以顺利取得房屋。

A recent survey conducted by the First Intermediate People's Court of Beijing showed that the number of cases of buyer breach of contract in recent housing sales contract disputes heard by the court has significantly increased. Among them, there are also cases of speculators breaking the contract due to the increased risk of speculation after the implementation of the new real estate policy and their unwillingness to continue fulfilling the contract. The following is a representative case recently concluded by the Beijing First Intermediate People's Court. According to the case, Mr. Li has a 60 square meter house for sale near Chengfu Road in Haidian District. On April 10th of this year, he signed a house sales contract with Wei through a real estate agent, agreeing that the transaction price of the house was 1.5 million yuan. Wei should pay a deposit of 50000 yuan when signing the contract and pay the house price of 850000 yuan before April 15th; Both parties shall complete the property notarization procedures within 2 months of signing the contract. On the day of notarization, Wei shall pay the remaining house price of 600000 yuan. Mr. Li shall deliver the original house and property certificate, as well as the notarization certificate, to Wei, and all taxes and fees shall be borne by Wei. After the contract was signed, Wei paid Mr. Li a deposit and a down payment of a total of 900000 yuan as scheduled. Both parties negotiated through a real estate agent and jointly went to the notary office to handle the entrusted notarization on June 7th. However, the two parties were unable to reach a consensus on the entrusted notarization template and ultimately failed to complete the notarization procedures, leading to a dispute. Mr. Li then filed a lawsuit to the court, demanding that Wei continue to perform the contract, pay the remaining housing price, and bear the penalty for delayed performance in accordance with the breach of contract terms. Wei counterclaimed and demanded that Mr. Li provide a legal and effective notarized power of attorney within a specified period of time, and bear the penalty for delayed processing of the property certificate. This case may seem like a simple dispute over a property purchase and sale contract, but in reality, there is a hidden mystery behind it that speculators speculate on buying and owning properties. In order to avoid the relevant taxes and fees for buying and selling houses, and reduce resale costs, professional speculators generally do not handle the transfer procedures when purchasing houses. Instead, after signing a sales contract with special clauses, they find various reasons and require the owner to go to the notary office to handle the entrusted notarization certificate for the ownership of the house and the transfer of ownership of the house. If the owner finds that the speculator is calculating and unwilling to fulfill the contract, the speculator will demand compensation from the owner for breach of contract. This operation method is in line with the operating principle of speculators buying low and selling high, exchanging less funds for greater returns. In addition, it can also avoid the restrictions of the new real estate policy on the number of new housing units purchased by individuals, so that they can continue to speculate in housing after the new policy is issued. After trial, the court found that although the contract signed by Mr. Li and Mr. Wei stipulated that both parties should complete the notarization procedures within 2 months after signing the contract, due to unclear agreement, the two parties had different opinions on the specific content, time, and procedures of notarization, resulting in the failure to continue the performance of the contract. The purpose of signing a house purchase and sale contract between Mr. Wei and Mr. Li is to transfer the ownership of the house between the two parties through the act of buying and selling, rather than completing the entrusted notarization through the purchase and sale contract. Whether or not to carry out entrusted notarization does not affect the realization of the contract purpose. Therefore, in the absence of a clear agreement on the specific matters of notarization commission in the contract, Wei's request for Mr. Li to provide a legal and capable notarization commission letter lacks basis. As both parties agree to continue fulfilling the contract and handling the transfer procedures of the house, Wei should pay the remaining house payment to Mr. Li after both parties have completed the transfer procedures themselves. Finally, the court ruled that both parties should continue to fulfill the contract and rejected Mr. Li's other litigation requests and Wei's counterclaim requests. The court found through research that there are some commonalities in this type of case. When speculators sign a house purchase and sale contract with the owner, the contract often contains a notarization clause, aiming to obtain the agency rights for the sale, transfer, and other related matters of the house from the owner, so that in the next purchase and sale, the house can be directly transferred from the owner's name to the new buyer, in order to obtain more price differences. The notarization clause often involves vague agreements first, so as not to cause the owner to doubt or refuse to sign the contract. On the surface, speculators are buying a house for self occupancy and actually paying most or even all of the house price according to the contract, but this is just a step to gain the trust of the homeowners. During the performance of the contract, speculators usually find some reasons, such as claiming that the purchase of the house was actually funded by their parents, and the property certificate may need to include their parents' names. They can first entrust the speculator to handle the transaction and transfer of ownership, which can be used as an alternative way for the owner to handle the transfer of ownership procedures, leaving themselves with space for speculation activities; Or it is advocated that in order to prevent the situation of not transferring ownership after paying the house price, a salesperson from the real estate agency can be entrusted to act as a trusted supervisor to handle the transfer of ownership of the house. However, in reality, this salesperson is the "accomplice" of the speculator in the "black intermediary", working together with the speculator to "create a cage" for the owner to enter. Some homeowners did not recognize the "conspiracy" of the speculator and directly cooperated with them to handle the notarization procedures. Although some homeowners had concerns, they were worried about breaking the contract and believed that the speculator had already paid the price, often reluctantly cooperating. In this case, Mr. Li did not pay attention to the notarization clause when signing the house purchase and sale contract. When Wei requested to handle the entrusted notarization procedures according to the notarization template provided by him, Mr. Li discovered that Wei was suspected of speculating in real estate. However, in order to continue performing the contract without breach of contract, Mr. Li hoped to limit the scope of notarization authorization to only handling transfer of ownership and not include matters such as buying, selling, and online signing, but was refused by Wei. Due to the specific notarization content not being clearly stated in the sales contract, Mr. Li cannot directly attribute the responsibility for the inability to continue performing the contract due to the lack of notarization to one party, which puts him in a dilemma. There is a high risk of encountering speculators in the sale of second-hand houses. Some people may question that if speculators can pay the full house price according to the contract, why bother with how they dispose of the house? In fact, encountering such speculators poses a huge safety hazard for both the seller and the next buyer. For homeowners who sell houses, if notarization is applied for, although the homeowner can ultimately obtain the full house price without any economic loss on the surface, there are a series of risks involved. Firstly, if a speculator resells the property to someone else, the speculator is only a nominal seller and formally acts as an agent for the original owner to sell. If a dispute arises during the performance of the contract, the new buyer may claim that the original owner and speculator engaged in malicious collusion. Once a lawsuit occurs, the original owner will be directly listed as the defendant; Due to the fact that the original owner has already delivered the house to the speculator and obtained the price, the actual owner and user have changed accordingly. The speculator may resell the house multiple times, and in the event of a dispute, the new buyer will require the other party of the purchase and sale contract - the original owner - to deliver the house, and the original owner will inevitably bear the legal responsibility of one house for two sales or even one house for multiple sales; If a speculator damages the structure of the house during use, modifies the house and resells it, and a new buyer finds quality problems after moving in, they will directly claim repair or compensation from the original owner; Due to the fact that the property has not been transferred, if the speculator rents the property to someone else or engages in other illegal activities within the property before finding the next buyer, the original owner, as the owner of the property, may bear a heavier legal burden for this; Moreover, if the speculator fails to pay the full house price to the original owner, the consequences will be even more unimaginable if they transfer the house to the after-sales service and escape the payment. For new homebuyers, encountering speculators also has significant drawbacks. Firstly, taking ordinary residential properties that have been in use for less than five years as an example, according to transaction habits, the business tax on second-hand housing transactions is generally agreed to be borne by the buyer. Under normal transaction channels, when speculators purchase from the original owner, they should be subject to business tax based on the difference in the house price. If speculators transfer the property to a new buyer again, they should be subject to business tax based on the difference, but because speculators do not transfer ownership and pay taxes, So the new buyer calculates the business tax based on the original owner's purchase price, which is actually a transfer of most of the taxes and fees that should have been borne by the speculator to the new buyer; Due to the fact that the speculators are not the actual property owners and do not have a good understanding of the condition of the house, they may also carry out simple decoration to increase the resale price and hide the defects of the house. As a result, the buyers may not ultimately buy their ideal house; The handling of property management, heating, water and electricity, cable TV, telecommunications, and other matters may involve real name issues, which are often not directly handled by speculators and may cause unnecessary trouble for new buyers; If a speculator sells more than one house, it will be difficult for the buyer to obtain the house smoothly.