专业团队

　　房屋纠纷在市民日常生活、经营中很常见，也是很多老百姓关心的问题。那么购房者在遇到纠纷时应如何处理纠纷呢?

　　在购买房屋的过程中，一般来说，可能会遇到以下六种房屋纠纷，分别是定金纠纷、未获得贷款引起的纠纷、开发商违约纠纷、退房纠纷、开发商欺诈纠纷、先交费后入住纠纷、广告、样板间纠纷。这也是我们在处理房屋纠纷中最为常见的纠纷问题。

一、定金纠纷

　　要正确处理《认购书》中的定金纠纷，首先应了解《认购书》的性质和《认购书》中约定的定金所担保的内容。从《认购书》签订的背景和内容看，《认购书》并不是购房合同，没有定金条款的《认购书》仅是购售双方交易意向的表述，购房者和开发商之间并不存在权利义务关系。但对房屋交易已达成初步意向的买卖双方而言，为了保证双方能进一步接洽房屋买卖，即购房者保证开发商在签订正式购房合同之前，不将房屋另售他人，开发商保证购房者能再来接洽购房事宜，并不产生法律约束力的《认购书》显然不能实现上述目的。

　　正是为达到上述目的，达成购房意向的双方约定，由购房者向开发商支付一定的定金，以保证开发商在约定期限内不将房屋另售他人，同时保证购房者在约定期限内与开发商进一步洽谈购房事宜。购房者交纳了定金，认购书的性质就由意向书变成了协议，购房者与开发商之间就有了权利义务，开发商的义务是在约定期限内不得将房屋出售他人，购房者的义务是在约定期限内与开发商进一步接洽购房事宜。否则，购房者将损失定金，开发商将双倍返还定金。从上面分析可以看出，《认购书》是购售双方为进一步接洽购房合同而签订的协议，定金担保的是双方进一步洽谈合同的行为。

　　了解了认购书的性质和定金担保的内容，处理此类纠纷也就有了依据。

　　(一)、如因开发商原因致双方在认购书约定的时间内未能签订《商品房买卖合同》的，例如开发商将约定房屋出售给第三方等，购房者可要求开发商双倍返还定金;

　　(二)、如因购房者原因在认购书约定的时间内双方未能签订《商品房买卖合同》的，例如购房者放弃购买约定房屋等，购房者将损失定金;

　　(三)、在认购书约定的时间内经购房者与开发商协商，双方对《商品房买卖合同》具体条款无法达成一致的，购房者可要求开发商退还已交纳的定金;

　　(四)、如果开发商销售未具备销售条件的房屋，即开发商未取得预售许可证或销售不具备使用条件的现房，购房者可要求开发商退还定金，并要求开发商支付相应的利息损失。

　　出现定金纠纷双方可协商解决，如协商不成，可按《认购书》中约定的仲裁机构申请仲裁或向法院起诉。

　　二、未获得贷款引起的纠纷

　　不能一次性支付购房款的购房者，往往选择贷款方式支付购房款，即先支付一定的首付款，其余的通过贷款支付。如果购房者贷款申请未获银行(或住房资金管理中心)批准，造成逾期付款，是否构成合同违约呢?

　　按照银行和住房资金管理中心的要求，购房者申请贷款，是以已签订购房合同作为前提。而购房款的支付方式作为购房合同的必要条款，购售双方需在购房合同中明确约定。也就是说购房者在申请贷款前，在签订购房合同时约定了需由购房合同外第三方──银行或住房资金管理中心批准的贷款付款方式。如果贷款申请获得批准，购房者可用贷款支付剩余购房款，如果贷款申请未获批准，用贷款支付剩余购房款的约定就无法实现。从上述分析看，购售双方在签订购房合同时约定的按揭付款方式只是效力待定条款，是以银行和住房资金管理中心批准贷款为成立要件。如银行或住房资金管理中心未批准贷款申请，购售双方约定的按揭付款方式就成了无效条款。如因银行或住房资金管理中心未批准贷款申请造成购房者逾期支付购房款，因约定的付款条款无效，所以购房者并不承担违约责任。此时购售双方可签订补充协议，对付款方式重新做出约定。如双方无法达成新的协议，因原付款方式无效，造成购房合同无法履行，双方均可解除购房合同。如因购房者原因致银行或住房资金管理中心未批准贷款的，例如提交虚假证明材料等，购房者虽不承担违约责任，但应承担相应的过错责任，如因此造成双方解除合同的，开发商可向购房者要求一定的损失赔偿。另需说明的是，如因购房者未及时提交贷款申请材料造成逾期付款的，购房者应承担逾期付款的违约责任，违约责任按合同约定处理。

三、开发商违约纠纷

　　合同当事人未按合同约定履行义务，就构成违约。对购房合同而言，购房者的主要义务是按期支付房款，而购房者在购房时，往往是按自己的承受能力选择付款方式，所以因逾期付款造成的违约在实践中极为少见。购房合同中的违约多数由开发商引起。下面主要说明开发商的违约责任。

　　开发商的违约责任主要包括：

1)逾期交房;

2)面积出现误差;

　　3)设备、装修不符合合同约定;

4)变更规划、设计;

5)房屋质量不合格;

　　6)未按期办理产权过户手续。

　　出现上述违约行为时，购房者应首先看购房合同中是否有对上述违约责任的处理约定，如有约定，按合同约定处理，如未约定违约责任的处理办法，按法律规定可对开发商的违约行为要求赔偿，赔偿的标准以直接损失为限，具体处理办法如下：

1、逾期交房

　　合同未约定逾期交付房屋违约处理办法的，如开发商逾期交付房屋，按照最高人民法院《关于审理商品房买卖合同纠纷案件适用法律若干问题的解释》的规定，违约金按照逾期交付使用房屋期间有关部门公布或者有资格的房地产评估机构评定的同地段同类房屋租金标准确定。

2、面积出现误差

　　合同未约定房屋面积误差处理办法的，如开发商交付的房屋实测面积与合同约定面积出现误差，根据《商品房销售管理办法》和最高人民法院《关于审理商品房买卖合同纠纷案件适用法律若干问题的解释》的规定，面积误差按下列办法处理：

　　1)面积误差比绝对值在3%以内(含3%)的，据实结算房价款;

　　2)面积误差比绝对值超出3%时，买受人有权退房。买受人退房的，房地产开发企业应当在买受人提出退房之日起30日内将买受人已付房价款退还给买受人，同时支付已付房价款利息。买受人不退房的，产权登记面积大于合同约定面积时，面积误差比在3%以内(含3%)部分的房价款由买受人补足;超出3%部分的房价款由房地产开发企业承担，产权归买受人。产权登记面积小于合同约定面积时，面积误差比绝对值在3%以内(含3%)部分的房价款由房地产开发企业返还买受人;绝对值超出3%部分的房价款由房地产开发企业双倍返还买受人。

　　3、设备、装修不符合合同约定

　　出卖人交付的房屋的设备、装修不符合合同约定的，购房者应拒绝接收房屋，并视出卖人未交付房屋，因此造成逾期交付房屋的，应按出卖人逾期交房处理。如购房者已接收商品房，发现出卖人交付的房屋的设备、装修不符合合同约定，购房者可要求出卖人限期更正，因更正造成房屋不能正常使用的，可要求出卖人承担赔偿责任，赔偿金可按此期间有关部门公布或者有资格的房地产评估机构评定的同地段同类房屋租金标准确定。出卖人拒绝更正或在合理期限内未更正的，购房者可要求出卖人承担相应赔偿责任。赔偿责任以实际损失为限，实际损失包括设备、装修的差价款、改动工程款及不能正常使用房屋期间的损失。

4、变更规划、设计

　　按照《商品房销售管理办法》第24条规定，房地产开发企业应当按照批准的规划、设计建设商品房，经规划部门批准的规划变更、设计单位同意的设计变更导致商品房的结构型式、户型、空间尺寸、朝向变化的，房地产开发企业应当在变更确立之日起10日内，书面通知买受人。买受人有权在通知到达之日起15日内做出是否退房的书面答复。买受人在通知到达之日起15日内未作书面答复的，视同接受规划、设计变更以及由此引起的房价款的变更。房地产开发企业未在规定时限内通知买受人的，买受人有权退房;买受人退房的，由房地产开发企业承担违约责任。

5、房屋质量不合格

　　根据最高人民法院《关于审理商品房买卖合同纠纷案件适用法律若干问题的解释》第13条规定，开发商交付的房屋主体结构质量不合格和房屋质量严重影响房屋正常使用的，购房者可要求解除购房合同，并要求开发商承担赔偿责任(具体参阅本节第四项退房纠纷的处理)，其它房屋质量问题，购房者可要求开发商限期修复，出卖人拒绝修复或者在合理期限拖延修复的，购房者可以自行或委托他人修复，修复费用由出卖人承担，因修复造成交房延误的，可要求开发商承担逾期交房的违约责任。房屋的质量应以工程质量检测机构的检测结果为依据，购房者对房屋质量存有疑虑的，可委托工程质量检测机构对房屋质量进行检测。

Housing disputes are common in the daily lives and operations of citizens, and are also a concern for many ordinary people. So how should homebuyers handle disputes when they encounter them?

In the process of purchasing a house, generally speaking, there may be six types of housing disputes, namely deposit disputes, disputes caused by failure to obtain loans, developer breach of contract disputes, check-out disputes, developer fraud disputes, disputes over payment before moving in, advertising disputes, and disputes over model rooms. This is also the most common dispute issue we encounter when dealing with housing disputes.

1、 Deposit dispute

To properly handle the deposit dispute in the subscription agreement, it is necessary to first understand the nature of the subscription agreement and the content guaranteed by the deposit as stipulated in the subscription agreement. From the background and content of the signing of the Subscription Agreement, it can be seen that the Subscription Agreement is not a purchase contract, and the Subscription Agreement without a deposit clause is only an expression of the transaction intention between the buyer and the seller. There is no right or obligation relationship between the buyer and the developer. However, for buyers and sellers who have reached a preliminary intention in the housing transaction, in order to ensure that both parties can further negotiate the purchase of the house, that is, the buyer guarantees that the developer will not sell the house to others before signing the formal purchase contract, and the developer guarantees that the buyer can come back to negotiate the purchase of the house, a non legally binding "subscription letter" obviously cannot achieve the above purpose.

It is precisely to achieve the above objectives and reach the agreement of both parties to purchase a house that the buyer pays a certain deposit to the developer to ensure that the developer does not sell the house to others within the agreed period, and to ensure that the buyer further negotiates with the developer on the purchase of the house within the agreed period. The buyer pays a deposit, and the nature of the subscription letter changes from a letter of intent to an agreement. The buyer and the developer have rights and obligations, and the developer's obligation is not to sell the house to others within the agreed period. The buyer's obligation is to further negotiate with the developer on the purchase of the house within the agreed period. Otherwise, the homebuyer will lose the deposit, and the developer will double the deposit. From the above analysis, it can be seen that the "Subscription Agreement" is an agreement signed by both parties to further negotiate the purchase contract, and the deposit guarantees the behavior of both parties in further negotiating the contract.

Understanding the nature of the subscription agreement and the content of the deposit guarantee provides a basis for handling such disputes.

（1） If, due to the developer's reasons, both parties fail to sign the "Commercial Housing Sales and Purchase Contract" within the time specified in the subscription agreement, such as the developer selling the agreed property to a third party, the buyer may request the developer to double the deposit;

（2） If, due to the buyer's reasons, both parties fail to sign the "Commercial Housing Sales Contract" within the time specified in the subscription agreement, such as the buyer abandoning the purchase of the agreed property, the buyer will lose the deposit;

（3） Within the time specified in the subscription agreement, if the buyer and the developer fail to reach an agreement on the specific terms of the Commercial Housing Sales Contract through negotiation, the buyer may request the developer to refund the deposit already paid;

（4） If the developer sells houses that do not meet the sales conditions, that is, the developer has not obtained a pre-sale permit or sold existing houses that do not meet the usage conditions, the buyer can demand that the developer refund the deposit and pay the corresponding interest loss.

In the event of a deposit dispute, both parties can negotiate to resolve it. If consultation fails, the parties may apply for arbitration or file a lawsuit with the court according to the arbitration institution specified in the Subscription Agreement.

2、 Disputes arising from failure to obtain loans

Homebuyers who cannot pay the purchase price at once often choose to pay the purchase price through a loan, which means paying a certain down payment first and the rest through a loan. If the buyer's loan application is not approved by the bank (or housing fund management center), resulting in overdue payment, does it constitute a breach of contract?

According to the requirements of banks and housing fund management centers, homebuyers applying for loans are based on the premise of having signed a purchase contract. The payment method for the purchase price is a necessary clause of the purchase contract, and both parties need to clearly agree on it in the purchase contract. That is to say, before applying for a loan, the homebuyer has agreed on a loan payment method that needs to be approved by a third party outside the purchase contract - the bank or the housing fund management center - when signing the purchase contract. If the loan application is approved, the homebuyer can use the loan to pay the remaining purchase price. If the loan application is not approved, the agreement to use the loan to pay the remaining purchase price cannot be realized. From the above analysis, it can be seen that the mortgage payment method agreed upon by both parties when signing the purchase contract is only a clause with undetermined effectiveness, and is established with the approval of the loan by the bank and the Housing Fund Management Center as the prerequisite. If the bank or housing fund management center does not approve the loan application, the mortgage payment method agreed upon by both parties becomes an invalid clause. If the loan application is not approved by the bank or the housing fund management center, resulting in the buyer's overdue payment of the purchase price, the buyer shall not be liable for breach of contract due to the invalidity of the agreed payment terms. At this point, both the buyer and seller can sign a supplementary agreement to renegotiate the payment method. If both parties are unable to reach a new agreement and the original payment method is invalid, resulting in the inability to fulfill the purchase contract, both parties can terminate the purchase contract. If the bank or housing fund management center fails to approve the loan due to the buyer's reasons, such as submitting false proof materials, the buyer shall not be liable for breach of contract, but shall bear corresponding fault liability. If this causes both parties to terminate the contract, the developer may demand compensation for certain losses from the buyer. It should also be noted that if the homebuyer fails to submit the loan application materials in a timely manner, resulting in overdue payment, the homebuyer shall bear the liability for breach of contract for overdue payment, and the liability for breach of contract shall be handled according to the contract.

3、 Disputes over developer breach of contract

If the parties to the contract fail to fulfill their obligations as stipulated in the contract, it constitutes a breach of contract. For a house purchase contract, the main obligation of the buyer is to pay the house price on time, and when purchasing a house, the buyer often chooses the payment method according to their own affordability. Therefore, breach of contract caused by overdue payment is extremely rare in practice. The breach of contract in the purchase contract is mostly caused by the developer. The following mainly explains the developer's liability for breach of contract.

The developer's liability for breach of contract mainly includes:

1) Late delivery of property;

2) Error in area;

3) Equipment and decoration do not comply with the contract agreement;

4) Change planning and design;

5) The quality of the house is unqualified;

6) Failure to complete property transfer procedures on schedule.

When the above-mentioned breach of contract occurs, the homebuyer should first check whether there is an agreement in the purchase contract regarding the handling of the above-mentioned breach of contract liability. If there is an agreement, it should be handled according to the contract agreement. If there is no agreement on the handling of breach of contract liability, the developer can be compensated for the breach of contract according to legal provisions. The compensation standard is limited to direct losses, and the specific handling methods are as follows:

1. Late delivery of property

If the contract does not specify the method for handling the breach of contract for delayed delivery of the property, if the developer fails to deliver the property on time, in accordance with the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Commercial Housing Sales Contracts, the penalty for breach of contract shall be determined based on the rental standards for similar properties in the same area announced by relevant departments or assessed by qualified real estate appraisal agencies during the period of delayed delivery and use of the property.

2. Error in area

If the contract does not specify the method for handling the area error of the house, and there is an error between the measured area of the house delivered by the developer and the agreed area in the contract, according to the "Management Measures for the Sale of Commercial Housing" and the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over the Sale and Purchase Contract of Commercial Housing", the area error shall be handled according to the following methods:

1) If the area error ratio is within 3% (including 3%) of the absolute value, the housing price shall be settled based on the actual situation;

2) When the area error exceeds 3% of the absolute value, the buyer has the right to check out. If the buyer cancels the house, the real estate development enterprise shall refund the paid house price to the buyer within 30 days from the date of the buyer's request for cancellation, and pay interest on the paid house price. If the buyer does not return the house, and the registered area of the property rights is greater than the agreed area in the contract, the housing price for the area with an error ratio of less than 3% (including 3%) shall be supplemented by the buyer; The housing price exceeding 3% shall be borne by the real estate development enterprise, and the property rights shall belong to the buyer. When the registered area of property rights is less than the agreed area in the contract, the housing price for the area with an absolute error ratio of less than 3% (including 3%) shall be returned to the buyer by the real estate development enterprise; The portion of the housing price with an absolute value exceeding 3% shall be refunded twice by the real estate development enterprise to the buyer.

3. Equipment and decoration do not comply with the contract agreement

If the equipment and decoration of the house delivered by the seller do not comply with the contract, the buyer shall refuse to accept the house and consider it as the seller's failure to deliver the house. If this results in delayed delivery of the house, it shall be treated as the seller's delayed delivery. If the buyer has received the commercial housing and finds that the equipment and decoration of the house delivered by the seller do not comply with the contract, the buyer may request the seller to make corrections within a specified period. If the correction causes the house to be unable to be used normally, the buyer may demand the seller to bear compensation liability. The compensation may be determined according to the rental standards for similar houses in the same area published by relevant departments or evaluated by qualified real estate appraisal agencies during this period. If the seller refuses to make corrections or fails to make corrections within a reasonable period of time, the buyer may demand that the seller bear corresponding compensation responsibilities. The liability for compensation is limited to actual losses, including equipment and decoration price differences, modification project payments, and losses during the period when the house cannot be used normally.

4. Change planning and design

According to Article 24 of the Measures for the Administration of Sales of Commercial Housing, real estate development enterprises shall construct commercial housing in accordance with the approved planning and design. If the planning changes approved by the planning department or the design changes approved by the design unit result in changes in the structural type, unit type, spatial dimension, and orientation of the commercial housing, the real estate development enterprise shall notify the buyer in writing within 10 days from the date of establishment of the changes. The buyer has the right to provide a written response within 15 days from the date of receipt of the notice on whether to check out. If the buyer fails to provide a written response within 15 days from the date of receipt of the notice, it shall be deemed that they have accepted the changes in planning and design, as well as the resulting changes in the housing price. If the real estate development enterprise fails to notify the buyer within the prescribed time limit, the buyer has the right to return the house; If the buyer checks out, the real estate development enterprise shall bear the liability for breach of contract.

5. Unqualified house quality

According to Article 13 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Contracts for the Sale and Purchase of Commercial Housing, if the quality of the main structure of the house delivered by the developer is unqualified and the quality of the house seriously affects the normal use of the house, the buyer may request the termination of the purchase contract and demand that the developer bear compensation liability (see the handling of the fourth item of this section for the handling of check-out disputes), and other quality issues of the house, Buyers may request the developer to repair the property within a specified period of time. If the seller refuses to repair or delays the repair within a reasonable period of time, the buyer may repair it on their own or entrust someone else to do so, and the repair cost shall be borne by the seller. If the repair causes a delay in delivery, the developer may be required to bear the breach of contract liability for delayed delivery. The quality of the house should be based on the inspection results of the engineering quality inspection agency. If the buyer has doubts about the quality of the house, they can entrust the engineering quality inspection agency to inspect the quality of the house.