[Direct answer]In the Beijing area, if a seller breaches the contract and refuses to sell the house, the buyer can apply for property preservation according to law. According to Articles 103 and 104 of the Civil Procedure Law of the People's Republic of China (amended in 2023 and implemented on January 1, 2024), the people's court may, upon the application of the other party, order the preservation of the applicant's property in cases where the judgment may be difficult to enforce or cause other damages to the parties due to the actions of one party or other reasons. If the application is erroneous and causes losses to the respondent, the applicant shall compensate for the losses according to law. Applying for preservation usually requires providing guarantees, which may take the form of cash, real estate, or insurance company guarantees, etc. However, in housing sales disputes, there are special restrictions on the preservation of the house itself: the real estate registration system generally only allows sequestration or registration of sequestration, and some courts adopt a more cautious attitude towards housing preservation, requiring review of the degree of contract performance, the payment of the down payment, and the nature of the breach of contract. For reference, please refer to the relevant provisions of the Civil Procedure Law of the People's Republic of China.Real estate transactions and construction projectsThe service description in the column.

I. Problem Background and Typical Scenarios

Most of those who consult this issue are buyers who have paid the down payment but encountered sellers who breached the contract. There are three common situations: the seller demands a price increase after the house price rises and refuses to fulfill the contract; the seller sells or mortgages the house elsewhere; the house has been sealed up and cannot be transferred. For more information, please refer to the following link:Special services and other casesIn practice, the most common dilemma is that even if the litigant wins the case, they may still face difficulties in enforcement because the subject property may have been sealed up or transferred by others. Therefore, the practical value of preservation lies in locking the property status and preventing losses from expanding. However, it should be noted that there are obvious limitations in the operation of housing preservation. Before applying for it, the buyer should fully assess the feasibility, including the current registration status of the house, the existing sealing-up situation, and the scope of the property that can be preserved. If necessary, they can communicate with the enforcement court before applying to confirm the operating procedures.

II. Key points of contention

The first focus is whether the seller constitutes a breach of contract and the manner of assuming the liability for breach of contract. The second focus is whether the house has been sealed up, mortgaged, or transferred. The third focus is whether the application for preservation should target the house or the seller's other property. The fourth focus is the form, amount, and cost of the guarantee. The fifth focus is whether the litigation request is enforceable. The sixth focus is the liability for compensation for errors in the application for preservation. The seventh focus is the connection between the application for preservation and the request for contract termination. The eighth focus is the cycle and uncertainty of the disposal of the property in the enforcement stage. The idea of connecting property preservation with enforcement can be referred to for reference.Special services and other casesThe description in the column.

III. Professional analysis by Henglue Lawyers

Taking the second-instance construction contract dispute case represented by Attorney Wu Jiani of our firm as an example: The attorney represented the plaintiff, an engineering company that completed the project on schedule and passed the acceptance and delivery, claiming that the defendant owed the remaining project payment. The key fact of the case is that the correspondence account documents signed by both parties clearly recorded the amount owed, which greatly reduced the difficulty of proving the fact of the arrears. In the second-instance, the opponent claimed that the amount owed should be deducted from some fees, that the signing subject of the contract was chaotic, and that the failure to allow the appraisal of the project cost was a mistake in applying the law. The attorney's rebuttal line of thought was: The correspondence account inquiry documents signed by both parties could prove that the other party acknowledged the amount owed; at the same time, the opponent could not give a reasonable explanation for signing the same contract with two companies, and his claim lacked basis. The court rejected the appeal and maintained the original judgment. This case provides an enlightenment on property preservation: Whether the preservation application can be supported largely depends on the strength of the proof of the underlying rights. Therefore, a solid factual and evidentiary foundation is the prerequisite for preservation and enforcement. This case was handled by Beijing Henglu Law Firm.Wu JianiThe attorney (practice license number: 11101202011245064, subject to the document issued by the judicial administrative organ) acts as the agent.

IV. Practical Suggestions and Legal Basis

Action recommendations: 1. Verify the current ownership and seizure/mortgage status of the property, and inquire with the real estate registration authority. 2. Preserve evidence of the buyer's contract performance, including the purchase contract, payment receipts, and communication records. 3. Evaluate the subject of preservation, and consider the seller's other assets beyond the property. 4. Prepare guarantee materials and estimate the cost of guarantees. 5. Clarify litigation requests, including continued performance or rescission of the contract and return of funds, and align them with the scope of preservation. 6. Pay attention to the timing of the preservation application to avoid losing its significance after the subject has been disposed of. 7. Evaluate the path for rescinding the contract and returning the down payment, as well as the feasibility of enforcement. Legal basis: Articles 103 and 104 of the Civil Procedure Law of the People's Republic of China (amended in 2023 and implemented on January 1, 2024) regarding property preservation and liability for erroneous preservation; Articles 577 and 584 of the Civil Code of the People's Republic of China (implemented on January 1, 2021) regarding breach of contract liability; Specific provisions shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglu Law Firm's Reminder

First, there are operational restrictions in preserving property, typically involving waiting in line for seizure, which requires prior communication with the executing court to confirm. Second, preservation requires guarantees, and the related costs should be included in the overall cost estimation. Third, the necessity of preservation hinges on the strength of the underlying rights. Fourth, errors in preservation applications may result in liability for compensation, so careful evaluation is essential. Fifth, litigation requests should match the scope of preservation to avoid disconnects between the request and the subject matter. Sixth, if the property has already been seized and the applicant is on the waiting list, the execution order will directly affect compensation. It is recommended to apply as soon as possible. Seventh, preservation cannot replace litigation. It is more crucial to advance the main litigation process as soon as possible. Eighth, the choice of guarantee forms should consider cost and enforceability. Methods such as letters of guarantee may not be accepted by some courts, so confirmation is needed before submission. Ninth, if the seller has entered bankruptcy or enforcement proceedings, timely evaluate the path of bankruptcy avoidance rights and creditor claims, and refer to relevant connection strategies for reference.Creditor's rights and debts, and enforcementColumn.

VI. Frequently Asked Questions

Q1: If the seller refuses to sell the house, can I apply for property preservation?

You can apply for it according to law. According to Article 103 of the Civil Procedure Law, the people's court may, upon the application of the other party, order the preservation of the property in cases where the judgment may be difficult to enforce or cause other damages due to the acts of one of the parties. In the case of house sales, it usually refers to the house itself or the seller's other property. It should be noted that the preservation of the house is subject to the rules of real estate registration, and is generally subject to sequestration on a waiting list. Moreover, some courts are more cautious in their review, and the necessity of preservation needs to be judged based on the degree of contract performance.

Q2: How much collateral is required to apply for a preservation order?

The amount is usually related to the amount of the request or the value of the preserved property, which is determined by the court based on the circumstances of the case. The form of the guarantee can be cash, physical property, or a guarantee letter issued by an insurance company. Cash guarantees are the most expensive but the most straightforward, while guarantee letters are relatively cheaper. In practice, the guarantee cost should be evaluated in advance and included in the overall protection budget, while paying attention to the guarantee period and renewal arrangements. For specific requirements, please refer to the relevant provisions.Special services and other casesColumn.

Q3: Can the house still be preserved even though it has been sealed up?

You can apply for it, but the effect will be limited. The real estate registration system usually handles the re-preservation of foreclosed properties by placing them on a waiting list for foreclosure. In this case, the value of the preservation lies in waiting rather than immediate control. The allocation order in the enforcement phase is influenced by the order of foreclosure and the nature of the creditor's rights, so it is necessary to evaluate the nature of the existing foreclosure creditors and the progress of the enforcement. If the house has already been applied for enforcement by other creditors, the buyer should also consider the application of special rules such as claiming the buyer's rights.

Q4: Can the house be transferred after the security check is completed?

This cannot be simply equated. Under the state of seizure, it is usually impossible to handle the registration of property rights transfer. The significance of preservation lies in preventing the house from being further disposed of or transferred, and creating conditions for the execution of the judgment after it takes effect. After the judgment or mediation agreement takes effect, it is still necessary to lift the original seizure and handle the transfer through the execution procedure, which involves many steps. Therefore, before making a claim, it is necessary to evaluate the complete execution path to avoid mistakenly believing that preservation means getting the house. For related execution connection ideas, please refer to the following link:Property transactions and construction projectsColumn.

Q5: Will I be sued if I make a mistake in the application for security protection?

They may bear liability for compensation. According to the Civil Procedure Law, if the applicant's application contains errors and causes losses to the respondent, the applicant shall compensate them in accordance with the law. In practice, a common dispute is that the applicant applies for preservation based on a request that is obviously lacking in basis, resulting in the other party's account or operations being affected. Therefore, before applying for preservation, the applicant should fully assess the strength of the evidence for the right of claim to avoid abusing the preservation procedure; if it is necessary to apply for preservation and there are urgent circumstances, the applicant should explain the necessity and urgency in detail in the application.

The above Q&A is mainly based on the judicial practice in Beijing. There may be differences in the interpretation of the law in different regions. It is recommended to consult a professional lawyer based on the specific circumstances of the case.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, to avoid missing the statutory time limit. →Legal services for the purchase and sale of real estate·Attorney Wu Jiani·Beijing Henglu 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. If you encounter disputes, please consult a practicing lawyer in time.