How much is the penalty when refunding the deposit for commercial housing
Lawyer's analysis:
Liquidated damages aspect: First of all, we should strictly follow the House purchase Relevant expressly stipulated in the contract Check out The restrictions on liquidated damages shall be enforced. If the specific amount of such liquidated damages is not clearly specified in the contract, both parties shall try their best to negotiate. If no consensus can be reached through consultation, it shall be settled in accordance with legal norms, specifically: payment Deposit If one party breaches the contract, the deposit paid will not be returned to them; On the contrary, if the party who collects the deposit causes breach of contract, it shall pay back twice the deposit paid by the other party. If both parties have responsibilities, they should be reasonably allocated according to their fault levels. In addition, if the liquidated damages are not enough to make up for the actual situation of the loss, the parties have the right to request the defaulting party to make compensation according to the actual losses suffered. At the same time, if the liquidated damages are too high, they can also apply to reduce the amount of compensation. As for the deposit: about Commercial housing Whether or not the deposit can be returned for the check-out of the house depends on the specific situation. When two people sign《 Commercial housing subscription 》At that time, if the real estate has obtained the corresponding pre-sale license, and the terms in the subscription book clearly define the house number, building area, house price and payment method, then the Commercial House Subscription Book has legal effect. At this time, asking for the return of the house undoubtedly constitutes a breach of contract, and has no right to ask the developer to return the deposit. However, if the following two situations occur after signing the Commercial Housing Subscription Form, the buyer may still successfully withdraw the deposit when checking out the house. ① When signing the Commercial Housing Subscription Form, although the purchased housing has obtained the pre-sale permit, the important terms (such as housing number, building area and price) listed in the subscription form have not been fully reflected, so the signed Commercial Housing Subscription Form is not legal, Therefore, the buyer has the right to ask the developer to return the deposit in full (especially, it is a violation of the regulations to collect the deposit without the authorization of the sales license). ② Similarly, if the house source selected at the time of signing the Commercial Housing Subscription Form has obtained the pre-sale license, but the Commercial Housing Subscription Form lacks key and even core important content, the subscription form should also be considered invalid, so the buyer can still ask the developer to return all the deposit to him.
Legal basis:
Article 4 of 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
If the seller receives a deposit from the buyer through subscription, ordering, reservation and other means as a guarantee for the conclusion of the commercial housing sales contract, if the commercial housing sales contract cannot be concluded due to one of the parties, it shall be handled in accordance with the provisions of the law on deposit; If the commercial housing sales contract cannot be concluded due to reasons not attributable to both parties, the Seller shall return the deposit to the Buyer.
Article 12 of 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
Where a party requests a reduction on the ground that the agreed liquidated damages are too high, it shall appropriately reduce the liquidated damages by 30% of the losses caused; Where a party requests an increase on the ground that the agreed liquidated damages are lower than the losses caused, the amount of liquidated damages shall be determined on the basis of the losses caused by the breach of contract.
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 Commercial Housing Sales Contracts
The commercial housing sales contract does not stipulate the amount of liquidated damages or the calculation method of loss compensation, and the amount of liquidated damages or loss compensation can be determined by reference to the following standards:
In case of overdue payment, it shall be calculated according to the total amount of unpaid house purchase money and the standard for financial institutions to calculate and collect interest on overdue loans stipulated by the People's Bank of China.
If the house is delivered for use after the time limit, it shall be determined according to the rent standard of the same kind of house in the same lot announced by the relevant competent department or assessed by a qualified real estate appraisal agency during the period of overdue delivery of the house.
Article 14 of 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
If the Buyer fails to obtain the real estate ownership certificate at the expiration of the following period due to the Seller's reasons, the Seller shall be liable for breach of contract, unless otherwise agreed by the parties:
（1） The time limit for real estate registration as agreed in the commercial housing sales contract;
（2） If the subject matter of the commercial housing sales contract is a house that has not been built, 90 days from the date when the house is delivered for use;
（3） If the subject matter of the commercial housing sales contract is the completed housing, 90 days shall be counted from the date of signing the contract.
If the contract does not stipulate liquidated damages or the amount of loss is difficult to determine, it can be calculated according to the total amount of house purchase money paid and the standard for calculating and collecting interest on overdue loans by financial institutions stipulated by the People's Bank of China.
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