[Direct answer]In the Beijing area, who should bear the intermediary fees is primarily stipulated in the contract, and there is no unified mandatory distribution by law. According to Article 963 of the Civil Code of the People's Republic of China (effective January 1, 2021), if the intermediary helps to conclude the contract, the principal shall pay the remuneration as agreed; if the intermediary fails to help conclude the contract, he/she shall not request payment of the remuneration, but may request the principal to pay the necessary expenses incurred in the intermediary activities according to the agreement. In practice, the intermediary fees for second-hand houses are usually borne by the buyer or shared by both parties according to the agreement. In some regions and institutions, there are industry charging guidelines, and the specific amount and payment method shall be subject to the written intermediary contract. In addition, according to Article 965, if the principal, after accepting the intermediary's services, takes advantage of the transaction opportunities or intermediary services provided by the intermediary to directly conclude the contract without the intermediary's involvement, the intermediary may request payment of the remuneration, which is commonly referred to as the "skipping the intermediary clause".

1. Problem background and typical scenarios

The agency fee is a common point of contention in second-hand housing transactions. Typical scenarios include: the agent verbally promising that the fee would be borne by the seller, but later demanding that the buyer pay it; the buyer and seller completing the transaction independently after viewing the property through the agent, only to be accused by the agent of bypassing the agent; the agent demanding full payment even if the transaction did not proceed; disputes over the ownership of the commission when the same property is listed by multiple agents; and disagreements over the fee amount due to the fee standard not conforming to industry guidelines. When handling such matters in the Beijing area, the specific provisions of the agency contract and whether the agent actually provided the facilitating services are key factors in determining the responsibility for the fee and the amount owed.

II. Key points of dispute

First, who should bear the intermediary fee and what is the basis for charging it? Second, is there a need to pay fees if the transaction is not successfully concluded? Third, can the intermediary claim compensation in the case of bypassing the agency? Fourth, how to determine the ownership of the compensation when multiple intermediaries list the property? Fifth, is it valid if the charging standard exceeds the guideline price? Sixth, can verbal promises bind the parties involved?

III. Professional analysis by Henglue Lawyers

Based on Henglue Lawyer's practical experience in handling intermediary contract disputes, there are three key points to keep in mind. First, adhere to the contractual provisions: The nature of the intermediary fee is the remuneration paid by the client to the intermediary. The payment conditions, amount, and liability parties should be governed by the written intermediary contract. Oral promises without supporting evidence are difficult to enforce against the other party. Second, the prerequisite for payment: The intermediary can request payment only if he/she has successfully facilitated the conclusion of the contract. If no contract is concluded, the intermediary generally cannot request payment, but may claim necessary expenses according to the contract. Third, the anti-circumvention rule: If the client, after accepting the intermediary's services, uses the transaction opportunities or intermediary services provided by the intermediary to bypass the intermediary and directly enter into a contract, the intermediary may request payment. To determine whether this constitutes anti-circumvention, it is necessary to consider whether the intermediary has provided substantial transaction opportunities and intermediary services, and whether the client has utilized these services. In practice, when multiple intermediaries are listed simultaneously, the intermediary who successfully facilitated the transaction should be paid, and attention should be paid to keeping records of property viewings and communication evidence.

IV. Practical suggestions and legal basis

Action list: First, before signing the intermediary contract, clarify the amount of the intermediary fee, the entity responsible for it, and the payment conditions; Second, require the intermediary to provide a written explanation of the paid service items and standards; Third, keep records of house viewings, guided visits, and communication to avoid disputes over skipping agents; Fourth, when the same property is introduced by multiple intermediaries, clarify the service content of each party; Fifth, negotiate or seek legal remedies for unreasonable fee claims. For disputes involving intermediary contracts and transactions, you can refer to the relevant provisions.Business and contract disputes in enterprises; Those related to the second-hand housing transaction process can be combined togetherReal estate transactions and construction projectsColumn. Legal basis: Articles 961, 963, and 965 of the Civil Code of the People's Republic of China (effective January 1, 2021). Specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Advice

Firstly, the agency fee shall be subject to the provisions of the contract, and verbal promises are difficult to bind the other party. Secondly, if the transaction is not successfully concluded, the full fee generally cannot be charged. Thirdly, if the client bypasses the agent to conduct the transaction, the client may need to pay the agent a fee, and it is necessary to have a sense of contractual obligation. Fourthly, keeping records of house viewing and communication can help clarify the services and fees. If you are currently facing similar problems, you can seek assistance throughBusiness and contract disputes in enterprisesYou can get a comprehensive solution for the service, which can be combined with the second-hand housing transactionProperty transactions and construction projects板块。

VI. Frequently Asked Questions

Q1: Who usually pays the commission for second-hand housing transactions?

According to the contractual provisions, there is no unified mandatory distribution stipulated by law. In practice, it is usually borne by the buyer, or shared by both parties according to the agreement. In some regions and institutions, there are industry charging guidance standards. Before signing the contract, the amount of the agency fee, the party responsible for paying it, and the payment deadlines should be clearly specified and written into the written agency contract to avoid disputes arising from verbal promises afterwards.

Q2: Do I have to pay if the agent fails to facilitate the transaction?

Generally, there is no need to pay a fee. According to Article 963 of the Civil Code of the People's Republic of China, an intermediary can request a fee only if he or she has helped to conclude a contract; if not, he or she shall not request a fee, but may, in accordance with the agreement, request the principal to pay the necessary expenses incurred in the intermediary activities. If the contract stipulates otherwise, it shall be dealt with in accordance with the agreement, and the specific matters shall be judged in light of the content of the service and the nature of the expenses.

Q3: If I view a property through an agent but then make the deal on my own, does that count as bypassing the agent?

This may constitute a breach of contract. According to Article 965 of the Civil Code, if the principal, after accepting the intermediary's services, uses the transaction opportunities or intermediary services provided by the intermediary to bypass the intermediary and directly enter into a contract with the other party, the intermediary may request payment of remuneration. Whether this constitutes a breach of contract depends on whether the intermediary has provided substantial transaction opportunities and intermediary services, and whether the principal has actually utilized these services. It is recommended to handle the matter properly and keep the communication records.

Q4: Is it valid if the agency fee exceeds the guidance price?

This needs to be assessed on a case-by-case basis. Intermediary service fees are generally set at market-regulated prices, with guidance standards in some regions. If the agreed fees are significantly higher than the guidance standards or involve unreasonable charges, you can request a negotiated adjustment. If there are instances of fraud, coercion, or manifestly unfair circumstances, you can legally request a modification or cancellation of the agreement. It is recommended to keep the payment receipts and contract terms, and seek professional advice when necessary.

Q5: Who receives the brokerage fees charged by multiple listed agencies?

It is usually paid to the intermediary who actually facilitated the transaction. If multiple parties provided services, the attribution of the compensation should be determined based on the respective service content and contractual agreements, and if necessary, it should be shared according to the principle of fairness. To avoid disputes, when buyers and sellers contact multiple intermediaries, they should pay attention to their respective entrustment relationships and viewing records, identify the intermediary who ultimately facilitated the transaction, and fulfill their corresponding payment obligations.

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 Henglue Lawyers on specific situations.

If you are 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·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and open 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 case of disputes, please consult a practicing lawyer in time.