[Direct answer]In the Beijing area, claims for delayed delivery of housing are primarily based on the breach of contract liability clauses stipulated in the contract. If the developer or seller fails to deliver the housing according to the contractual timeframe, the buyer may, in accordance with Articles 577 and 585 of the Civil Code of the People's Republic of China (effective January 1, 2021), require them to assume breach of contract liabilities such as continued performance, remedial measures, or compensation for losses, and pay the contractual penalty as agreed upon. The specific steps are as follows: First, confirm the agreed delivery time, grace period, and method of calculating the contractual penalty; Second, send a written notice demanding delivery within a specified timeframe and payment of the contractual penalty, and retain the delivery receipt; Third, calculate the contractual penalty, generally starting from the day after the expiration of the grace period until the actual delivery date; Fourth, if the other party refuses to perform, the buyer may sue to claim the contractual penalty, actual losses during the delay (such as rental fees for alternative accommodation), or even terminate the contract. If the developer claims force majeure such as the pandemic, it is necessary to review whether the claim is valid, whether the developer notified the buyer in a timely manner, and provided sufficient evidence. If the agreed contractual penalty is too low, the buyer may request to increase it to the level of actual losses.

I. Problem background and typical scenarios

Delayed delivery of housing is a common type of breach of contract in the sale of commercial housing and second-hand houses. There are four typical scenarios: First, the developer delays delivery due to funding, construction, or procedural reasons, and defends it with the argument of force majeure; Second, the contract stipulates an extension period, but the parties have significant disputes over the starting time; Third, the contract stipulates a daily calculation of the breach of contract penalty, but the buyer is unclear about the calculation basis and the deadline; Fourth, the delay is very long, and the buyer hopes to terminate the contract and get a refund. In the Beijing area, where property transactions are large in amount, the rental losses and capital occupation costs caused by delayed delivery can be considerable. Timely and accurate claiming of breach of contract penalties and actual losses is the key to protecting rights and interests.

II. Key points of contention

First, the determination of the delivery time and the application of the grace period. Second, the calculation basis, ratio, and start and end time of the penalty. Third, whether the force majeure and exempting circumstances are established. Fourth, whether the penalty and the actual losses can be used together, and how to avoid duplication. Fifth, the conditions for the exercise of the statutory right of rescission and the notification procedure. Sixth, the effectiveness of the reminder and the commencement of the statute of limitations.

III. Professional analysis by Henglue Lawyers

Henglue Law Firm once represented a dispute case involving a pre-sale contract for commercial housing: On April 30, 2021, Zhang Quan signed a "Beijing City Commercial Housing Pre-sale Contract" with Beijing A Real Estate Development Co., Ltd. to purchase a house in a certain residential area, with a total price of 6,841,972 yuan and a delivery date agreed upon before June 15, 2023. The supplementary agreement granted a 90-day grace period, after which the buyer would be required to pay a penalty of 0.01% of the total price per day. However, A Company failed to deliver the house until March 5, 2024, nearly nine months after the due date. Zhang Quan entrusted Attorney Tian Jiaoyan of Beijing Henglue Law Firm to sue A Company and demand a penalty of 118,366.12 yuan for the period from September 14, 2023 to March 5, 2024. The core disputes of the case include whether factors such as the pandemic constitute force majeure, how to apply the grace period, and whether the penalty standard is reasonable. The court accepted the lawyer's opinion and ruled that A Company should pay the full penalty of 118,366.12 yuan and the litigation fees. This case shows that the key to claiming compensation for delayed delivery is to clarify the expiration date of the grace period, the starting date of the penalty, and the calculation standard, and to provide an effective response to the defense of force majeure, so as to ensure that the contractually agreed penalty can be truly implemented in the judgment. This case was handled by Beijing Henglue Law Firm.Tian JiayanThe attorney (practice license number: 11101202111381309, subject to the document issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

Action suggestions: First, sort out the contract and supplementary agreements to clarify the delivery time, grace period, and penalty clause; Second, send a written reminder as soon as possible and deliver it through a traceable method; Third, fix the actual delivery date and pay attention to keeping the delivery notice and receipt records; Fourth, calculate the actual losses, such as rental expenses, cost of funds, and losses due to delay in decoration; Fifth, carefully evaluate whether to continue to perform the contract or to terminate it, and exercise rights in a timely manner; Sixth, if the other party invokes the defense of force majeure, require them to provide evidence and review the causality. For real estate transactions and contract breaches, you can refer to the relevant provisions of the Contract Law of the People's Republic of China.Real estate transactions | Construction projectsFor services involving contract terms and remedies for breach of contract, you can refer to the relevant provisions.Business and Commerce | Contract DisputesPlate. Legal basis: Article 577 of the Civil Code of the People's Republic of China (effective from January 1, 2021) on breach of contract liability, Article 585 on the agreement and adjustment of the breach of contract penalty, and Article 563 on the statutory right of rescission. The specific application shall be subject to the currently effective laws and regulations and judicial rulings.

5. Henglu Law Firm's Reminder

First, check the contract provisions before discussing the amount of the breach of contract penalty. Second, the date when the grace period expires determines the starting time of the breach of contract penalty. Third, it is very important to send written notices and keep the delivery receipts. Fourth, if the delay is long, you can consider terminating the contract and refunding the money. Fifth, you need to review whether the defense of force majeure is valid and whether there is a causal relationship. For claims related to the delay in handing over the house, you can proceed through legal channels.Real estate transactions | Construction projectsWe can combine the overall solution for services, which involves remedies for breach of contract, into one package.Business and Commerce | Contract DisputesFor reference, you can check the section related to the enforcement of compensation paymentsCreditor-debtor relations | Enforcement cases板块。

VI. Frequently Asked Questions

Q1: How is the penalty for late delivery of the house calculated?

Calculated in accordance with the contract. Common provisions stipulate that the amount shall be calculated as a certain percentage of the paid purchase price or as a few per thousand per day, and the starting time is generally from the agreed delivery date or the day following the expiration of the grace period until the actual delivery date. If the contract does not stipulate or the stipulation is unclear, the party may claim actual losses. If the contractually agreed penalty is obviously lower than the losses, the party may request an increase; if it is excessively higher than the losses, the other party may request a reduction.

Q2: Should we send a reminder?

It is recommended to send a reminder and keep the proof of delivery. A written reminder is not only an important evidence for claiming breach of contract penalties, but also a necessary prerequisite for exercising the statutory right of rescission. The reminder letter should clearly require the other party to perform within a specified period, state the facts and consequences of the breach of contract, and be delivered by traceable means such as express delivery or email. The delivery receipt, reply slip, and the content of the letter should all be properly preserved.

Q3: The developer said the delay was due to the pandemic. Does that count as a valid reason?

This requires a detailed analysis. Whether the epidemic or control measures constitute force majeure and whether the developer can be exempted from liability depends on the causal relationship between them and the delay in delivery, the extent of the impact and the duration, as well as whether the developer promptly notified and provided proof. It is not the case that the developer will automatically be exempted from liability as long as an epidemic occurs. If the developer fails to prove that the epidemic actually caused the project to be unable to be completed on schedule, their defense will generally be difficult to fully gain support.

Q4: Can I claim both the penalty fee and the rental loss together?

Note that duplicate calculations are not allowed. If the claimed breach of contract penalties have already covered losses such as rent, it is generally not necessary to claim the same portion of losses separately; if the breach of contract penalties are lower than the actual losses, you can request to increase them to the level of losses. Whether they can be used concurrently depends on the content of the agreement and the nature of the losses. It is necessary to avoid making duplicate claims for the same loss. If necessary, the lawyer should determine the solution after estimating the losses.

Q5: Can I check out even if I'm very late?

It is possible if the conditions are met. According to Article 563 of the Civil Code of the People's Republic of China (effective January 1, 2021), if a party delays in performing its main obligation and fails to perform within a reasonable period after being urged to do so, or if the delay in performance renders the contractual purpose unattainable, the other party may rescind the contract. Delay in delivering the house constitutes a delay in performing the main obligation. If the seller still fails to deliver the house after being urged to do so, the buyer can usually claim to rescind the contract, return the purchase price and interest, and claim compensation for losses.

The above content is based on the judicial practices in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglu Law Firm for specific situations.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, so as to avoid missing the statutory time limit.Legal services for real estate transactions·Attorney Tian Jiayan·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and publicly available adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. In the event of a dispute, please consult a practicing lawyer in a timely manner.