On the effectiveness of "preferential service fee" from a class action case of buying a house
order
In recent years, as the state and governments at all levels have successively introduced various policies to limit the excessive rise of housing prices, real estate development enterprises often introduce third-party service companies to increase sales prices, so that buyers can sign service contracts with service companies, thus giving buyers preferential prices. Through a case undertaken by the author, this paper analyzes how to determine the legal effect of the "preferential service fee" between the buyer and the third-party service company in this case.
The facts of a legal case
In 20 16, Poly Real Estate Investment Consulting Co., Ltd. Shanghai Branch (hereinafter referred to as the service company) presented the price list of one room and one price, and several buyers involved in the case planned to purchase the house of Poly Dumei, Landian Road, Pudong New Area, Shanghai developed by Shanghai Poly Jianjing Real Estate Co., Ltd. (hereinafter referred to as the real estate company) according to the price list of one room and one price. At the same time, according to the preferential activities recommended by the salesman, many property buyers involved in the case can enjoy the preferential activities of twice the preferential amount of the project after paying the preferential service fees ranging from tens of thousands to hundreds of thousands, and signed a notice of preferential purchase with the service company. The "Notice of Purchase Preference" stipulates that the purchase preference enjoyed by the purchaser is limited to the use of the purchaser, which is deducted from the total purchase price at the time of purchase and will not be deducted separately; This notice is only for the purpose of determining the preference and does not constitute any other commitment. Once the Commodity House Sales Contract is signed, it is deemed that the service of the service company has been completed, and the preferential service fee collected will not be refunded. After that, a number of property buyers involved in the case completed the obligation to pay money to the service company and the real estate company, and the real estate company took away the deposit contract and the notice of preferential purchase that the property buyers should hold, and signed the Shanghai Commercial Housing Pre-sale Contract (hereinafter referred to as the "Pre-sale Contract") with them, which stipulated the price of the disputed house before the pre-sale contract could be fulfilled.
At the end of 20 16, when the Shanghai municipal government strictly implemented the policies related to house purchase, the real estate company posted the filing price set by the Shanghai Municipal Price Bureau and filed by the real estate exchange in the sales hall. At this time, the buyers found that the total price of the house they booked was higher than the filing price, and the buyers did not actually enjoy the purchase discount.
Many buyers involved believe that the real estate company and the service company maliciously collude to raise the house price, make false concessions, fabricate non-existent service facts, and deceive consumers, which violates the provisions of NoticeNo. [20 1 1]548 of the National Development and Reform Commission, including the fact that commercial housing operators should publicly mark the factors that affect the price of commercial housing, such as related charges, and clearly mark the price. . Accordingly, the court is requested to find that the notice of preferential purchase is invalid, and the real estate company and service company are required to return the principal and interest of preferential service fees.
Referee's point of view
The court held that both parties should provide evidence to prove the facts on which their claims are based or refute each other's claims. If the parties are unable to provide evidence or the evidence is insufficient to prove their claims, the party with the burden of proof shall bear the adverse consequences. The judge believes that there is insufficient evidence for many buyers involved in this case to request the return of preferential service fees on the grounds that the Notice of Purchase Concessions is invalid, and it is not supported.
Legal analysis
1. Based on the malicious collusion between the real estate company and the service company to fabricate the original transaction price, can the notice of intention to purchase a house be deemed invalid?
20 1 1.5. 16 Article 12 of the Notice of Shanghai Municipal Development and Reform Commission on Implementing the Provisions of the National Development and Reform Commission on Clearly Marking the Price of Commercial Housing Sales: "For real estate development projects that have obtained pre-sale permits or registered the sale of existing houses, commercial housing operators (including intermediary service agencies) shall disclose all the houses at one time within the specified time and sell them to the outside world in strict accordance with the registered price."
The "original price" as mentioned in the Provisions of the National Development and Reform Commission on Prohibiting Price Fraud and the Provisions on Prohibiting Price Fraud: Notice on the Interpretation of Related Terms refers to the lowest transaction price of the trading orders made by the operators in this trading place within seven days before this promotion; If there is no transaction within the first seven days, the last transaction price before this promotion is the original price. "Original case" and "filing" are two different concepts. Commercial housing and general consumer goods have different attributes. General consumer goods may be mass-produced, and the price of the same batch is the same, so there are comparable "originals". However, there are no identical commercial houses, because their location, area, orientation, floors and room types are different and their prices are different. At present, the vast majority of commercial housing are sold at one room and one price, so there is no concept of "original price" in commercial housing sales. "Filing" is an administrative measure taken by the government in recent years to curb the excessive rise of housing prices in some cities. "Box preparation" belongs to the government-guided price, which is different from the "original price" of goods. Therefore, real estate companies and service companies do not constitute the "Notice of Purchase Preference" invalid due to malicious collusion and fictitious transaction prices.
2. Do you think that real estate companies and service companies use false or misleading price means to trick consumers or other operators into trading with them, and that the notice of preferential purchase in violation of the Price Law is invalid?
Article 13 of People's Republic of China (PRC) Price Law: "? Operators shall not sell goods at a price higher than the marked price, and shall not charge any unspecified fees. " Article 14: "An operator shall not commit the following unfair price behaviors: (4) Using false or misleading price means to trick consumers into trading with them." At the same time, Article 41: "If a business operator causes consumers to pay more because of price violations, it shall return the overpaid part, and if it causes damage, it shall be liable for compensation according to law."
Based on the above legal provisions, can the "Notice of Purchase Preference" be deemed invalid? First of all, the provisions of the price law are management norms, not effective norms. Secondly, combined with the case, real estate companies and service companies did not deceive or mislead many buyers involved to complete the transaction. House sale is a major transaction, and the plaintiff should fully consider the house price before deciding to buy it. During the whole signing process, the Notice of Purchase Preference signed by the buyer clearly recorded the available preferential discounts, the actual price payable and other contents, and the buyer could not provide evidence to prove that there was a cognitive error in the amount and nature of the house payment and preferential services. Therefore, it should not be considered that real estate companies and service companies use false or misleading price means to trick consumers or other operators into trading with them, in violation of the provisions of the price law, and that the notice of preferential purchase is invalid.
label
The "preferential service fee" for buying a house has a great influence on the interests of buyers. In the process of buying a house, buyers should make clear the legal effect of the intermediary service contract, so as to better handle the purchase contract with the developer and try to avoid all kinds of legal risks and economic losses.
The total sales price is higher than the filing price. Can the difference be refunded?
cannot
After signing the commercial housing sales contract, the purchaser requests the court to decide to refund the difference on the grounds that the actual purchase price is higher than the government's "filing price", which is generally difficult to get support. First of all, although the sales above the "filing price" violate the administrative regulations related to filing, it does not violate the mandatory provisions of laws and administrative regulations. If the circumstances are serious, the developer will be subject to administrative punishment at most.
Can I change the itemized quotation after winning the bid?
Why can't the itemized report be changed after winning the bid? The winning amount of the winning bidder shall be determined by the expert review, approval and publicity of the winning project. The winning bid amount is the sum of the itemized quotations. If you modify the itemized quotation, it will definitely affect the winning bid amount and cannot be changed. Bidding is serious and has legal effect. If the bid price is wrong, you can negotiate with Party A to reduce the price, but not to increase the price.
What does the fluctuation range of house price of 0.2 mean?
The fluctuation range of house price of 0.2 means that the actual selling price of house price can be lowered by 0.2 percentage points on the basis of the filing price, which is what people are used to saying. Of course, the floating range of 0.2 also includes a floating range of 2 percentage points. The meaning of this sentence is to limit the fluctuation range and not to set the price at will.