[Direct answer]In the Beijing area, if a seller breaches the contract and refuses to sell the house, it's worth hiring a lawyer, whose role mainly manifests in three aspects: First, requesting legal advice to determine whether to claim continued performance of the contract and require transfer of ownership, or to claim termination of the contract and return of the purchase price while pursuing breach of contract liability; Second, organizing evidence to form a complete chain of evidence including the contract, payment records, reminders, and proof of the other party's confirmation of breach of contract; Third, preserving the property to prevent the house from being transferred or seized again. According to Articles 577 and 585 of the Civil Code of the People's Republic of China (effective January 1, 2021), if a party fails to perform its contractual obligations or performs them in a manner inconsistent with the contract, it shall bear breach of contract liabilities such as continued performance, remedial measures, or compensation for losses. It should be noted that the key obstacle to continued performance is that if the house is mortgaged or sealed up, it is necessary to first resolve the issues of mortgage release and seizure lifting. Therefore, before choosing a path, it is necessary to first verify the registration and rights restriction status of the house. For reference, please refer to the following link:Real estate transactions and construction projectsThe service description in the column.

I. Problem background and typical scenarios

Most of the people who consult this issue are buyers who have paid the deposit or down payment, but encountered the seller's breach of contract. There are three common situations: after the housing price rises, the seller demands a price increase and refuses to perform the contract; the seller claims that the house has been mortgaged and requires the buyer to solve the problem by himself; the seller has already sold the house to someone else. In practice, the most common misunderstanding is that as long as the evidence is sufficient, the transfer of ownership can be smoothly completed, ignoring the precondition of the house's right status; another misunderstanding is to directly sue for the performance of the contract, but not considering the feasibility of the mortgage release process. In the end, even if a judgment is obtained, the transfer of ownership still cannot be completed. Therefore, the real value of hiring a lawyer lies in assessing the feasibility of the entire process, which requires having a grasp of both legal judgment and practical information such as registration and investigation and control.

They overlooked the prerequisite of the housing rights status. Another common misunderstanding is directly suing for the performance of the contract without considering the feasibility of the mortgage release process. In the end, even if they win the lawsuit, they still can't complete the transfer of ownership. Therefore, the real value of hiring a lawyer lies in assessing the feasibility of the entire process.

II. Key points of contention

Focus One: Whether the house is subject to mortgages, seizures, or other rights restrictions. Focus Two: The feasibility of continuing to perform the contract in practice. Focus Three: The legal basis for the request to rescind the contract and return the house price and interest. Focus Four: The agreed standard and adjustment of the breach of contract penalty. Focus Five: The claim for compensation for losses due to the increase in the value of the house. Focus Six: The restrictions on the concurrent use of the deposit and the breach of contract penalty. Focus Seven: The necessity of property preservation and the cost of guarantees. Focus Eight: The buyer's strategic choices constrained by funding and time conditions. For the analysis of contract terms and breach of contract liability, please refer to the relevant materials.Business and contract disputes in enterprisesThe description in the column.

III. Professional analysis by Henglue Law Firm

Judging from the experience of handling disputes over breaches of real estate transactions, the core of the path selection is the status of the house rights. If the house is not mortgaged or sealed up, and the seller meets the conditions for transfer of ownership, claiming continued performance and seeking breach of contract damages is usually the most effective solution, as it allows both obtaining the house and receiving corresponding compensation. If the house has been sealed up or the seller clearly lacks the ability to release the mortgage and transfer ownership, continued performance will lead to a long-term stalemate. In this case, it is more practical to terminate the contract, return the purchase price, and claim breach of contract damages. Another difference between these two strategies is the certainty of compensation: continued performance requires actual performance to be realized, while the return of the purchase price relies on the seller's ability to pay. Therefore, the latter should simultaneously assess the seller's financial status and consider property preservation. Lawyers usually complete the inquiry of the rights status and the evaluation of the other party's property first before giving path suggestions, rather than simply claiming continued performance according to the client's wishes. This case was handled by Beijing Henglu Law Firm.Tian Jia YanThe 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: 1. Immediately inquire with the real estate registration authority about the mortgage, seizure, and registration status of the property; 2. Collect contracts, payment receipts, reminder records, and evidence confirming the other party's breach of contract; 3. Assess the feasibility of continuing performance, including arrangements for releasing the mortgage and cooperative obligations; 4. Simultaneously evaluate options for rescinding the contract and returning the purchase price; 5. Consider applying for property preservation to lock in the property or the seller's other assets; 6. Calculate the claim amounts for breach of contract penalties and damages, and note the restrictions on the concurrent use of deposits and breach of contract penalties; 7. Clearly specify the obligations to cooperate in releasing the mortgage and the performance deadlines in the litigation requests. Legal basis: Articles 577, 585, 586, 588, and 589 of the Civil Code of the People's Republic of China (effective January 1, 2021); Article 103 of the Civil Procedure Law of the People's Republic of China (amended in 2023, effective January 1, 2024); Specific provisions shall be subject to the currently valid laws, regulations, and judicial rulings.

5. Henglue Law Firm's Reminder

First, check the status of the housing rights before deciding on the content of the claim, and the order cannot be reversed. Second, there are obstacles to the enforcement of the judgment, and the release of the mortgage is a key step. Third, the path of terminating the contract also depends on the seller's repayment ability, and the property should be investigated simultaneously. Fourth, the claim for the penalty may be adjusted if it is too high, and it needs to be justified based on the actual losses. Fifth, there are restrictions on the use of the deposit and the penalty together, so attention should be paid to the accounting. Sixth, it is better to apply for property preservation as early as possible, but the cost of the guarantee should be evaluated. Seventh, including the obligation to release the mortgage in the request and contract terms can significantly reduce disputes in the enforcement stage. Eighth, when assessing the other party's repayment ability, other assets under its name should also be checked to avoid focusing only on the housing property. Ninth, the litigation request should match the scope of preservation to avoid the situation that the request is disconnected from the actual executable property. The path design can be referred to for reference.Special services and other casesColumn.

VI. Frequently Asked Questions

Q1: If the seller refuses to sell the house, can we force him to transfer ownership?

You can sue to request the continuation of the contract and ask for the transfer of ownership, but whether this can be achieved depends on the current ownership status of the house. If the house is mortgaged, the seller needs to cooperate in removing the mortgage first; if it has been sealed up, it is necessary to first lift the seal. In practice, the execution of the judgment for the continuation of the contract often takes a long time, so you should fully assess the feasibility and time cost of removing the mortgage before suing. For related execution connection ideas, you can refer to the following content:Creditor's rights and debts, and enforcementColumn.

Q2: Do I need to hire a lawyer to file a lawsuit?

It is recommended to hire a lawyer. The key to handling cases involving sellers' breach of contract lies in requesting the design and implementation of feasibility, which requires professional judgment: first, the choice between continuing to perform the contract and terminating it; second, the verification of the property rights status; third, the timing of property preservation; and fourth, the calculation of the breach of contract penalty and losses. Common problems with self-initiated litigation include only claiming the right to continue performance while ignoring the issue of mortgage release, or omitting property preservation, which results in the inability to enforce the judgment after winning the case. When hiring a lawyer, the scope of services and fee arrangements should be clearly defined.

Q3: Can the seller cover the attorney's fees?

It can be claimed, but there is uncertainty as to whether it can be fully supported. In practice, attorneys' fees are usually claimed as part of the losses, and the court will determine the amount based on factors such as whether the contract stipulates the liability for breach of contract, the complexity of the case, and the reasonableness of the actual expenses. When making a claim, you should provide evidence such as the power of attorney and invoices. If the contract clearly stipulates that the breaching party shall bear the attorneys' fees, the likelihood of the claim being supported will be higher. The method of claiming can be referred to as follows:Business and contract disputes in enterprisesColumn.

Q4: Can I request compensation for the price difference resulting from the increase in housing prices?

This can be claimed, but it requires evidence to support it. The losses caused by the increase in housing prices fall within the scope of claimable breach of contract damages, but the amount claimed needs to be based on appraisal or reliable evaluation and demonstrate the causal relationship with the breach of contract. In practice, courts usually consider the breach of contract time, the magnitude of the housing price change, and the buyer's actual losses to make a comprehensive judgment. If the claim is too high, it may not be fully supported, so it's very important to prepare the basis for the evaluation.

Q5: Can I get the deposit back?

Yes. In the event that the seller breaches the contract and fails to fulfill its obligations, the buyer may request the return of the deposit and apply the penalty clause for the deposit, which means that if the seller breaches the contract, it shall return the deposit in double. However, it should be noted that the amount of the deposit shall not exceed the statutory proportion of the subject matter of the main contract, and the excess part shall not produce the effect of the deposit; at the same time, there are restrictions on the use of the deposit and the penalty for breach of contract together, and the buyer should reasonably choose the applicable method. For specific calculations and claims, please refer to the following reference materials:Real estate transactions and construction projectsColumn.

The above content is based on the judicial practice 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 cases.

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 to avoid missing the statutory time limit.Legal services for the purchase and sale of real estate·Attorney Tian Jiaoyan·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. If you encounter disputes, please consult a practicing lawyer in time.