[Direct answer]In the Beijing area, in disputes over the sale and purchase of second-hand houses, the attorney's fees are generally borne by the client, but there are two exceptions. The first type is contractual stipulation: if the sales contract explicitly stipulates that the breaching party shall bear the reasonable expenses incurred by the performing party for safeguarding their rights, including attorney's fees, this stipulation is generally valid. The mainstream view holds that such stipulation does not violate mandatory provisions of law. The second type is situations directly stipulated by law, such as expenses incurred in procedures such as contract termination, property preservation, and public announcement. In judicial practice, reasonable expenses are supported. According to Article 584 Paragraph 2 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 violation of the agreement, causing losses to the other party, the amount of compensation for the losses shall be equivalent to the losses caused by the breach of contract, including the benefits that could have been obtained after the performance of the contract; however, it shall not exceed the losses that the breaching party could have foreseen or should have foreseen when concluding the contract. Whether the reasonable attorney's fees incurred during the process of safeguarding rights fall within the scope of losses that can be claimed is a matter of different judgments in judicial practice. It usually requires a comprehensive judgment based on the contractual stipulation, the necessity of safeguarding rights, the reasonableness of the expenses, and the degree of the other party's fault. It should be noted that even if the claim is supported, the amount supported by the adjudication is usually based on the actual payment receipts and subject to reasonableness restrictions, rather than being fully supported. For the evaluation of the cost of safeguarding rights, reference can be made to the following principles:Creditor's rights and debts, and enforcementColumn.

1. Problem background and typical scenarios

When consulting on such issues, most clients are already in the stage of a dispute having occurred and are evaluating the cost of protecting their rights. There are three common concerns: who will ultimately bear the attorney's fees, whether they can recover the full amount, and whether it's worth litigating over a minor dispute. In practice, a key judgment lies in the contract terms: if the sales contract or supplementary agreement stipulates that the breaching party shall bear the costs of protecting rights, the basis for claiming attorney's fees will be much stronger; if there is no such stipulation at all, the claim can only be based on the rules of compensation for losses, and there is great uncertainty as to whether it will be supported. Another common misconception is that litigation fees and attorney's fees are the same thing. In fact, litigation fees are determined by the court on its own authority, while attorney's fees are considered contractual expenses, which are of a different nature. In addition, the cost of protecting rights also includes appraisal fees, notarization fees, travel expenses, and preservation guarantee fees, which should be compiled together when making a claim. For practical ideas on contract design and fee stipulations, please refer to the following materials:Special services and other casesColumn.

II. Key points of contention

First, the validity and interpretation of the attorney's fee-bearing clause in the contract. Second, whether the compensation for losses in the absence of an agreement can include attorney's fees. Third, the reasonableness of the claimed amount and the method of providing evidence. Fourth, the requirements for the completeness of actual payment receipts. Fifth, the defense of the necessity of protecting rights and the excessive cost. Sixth, the proportion of attorney's fees borne when only partially winning the case. Seventh, the relationship between litigation fees and attorney's fees. Eighth, the validity of the agreement on attorney's fee-bearing in the mediation agreement. In addition, attention should also be paid to the impact of the necessity of protecting rights on cost support, the sharing of costs in the case of multiple defendants, and the way of expressing litigation fees and attorney's fees in the judgment document.

III. Professional analysis by Henglue Lawyers

From the perspective of housing sales disputes in practice, whether the claim for attorney's fees can be supported typically depends on three preparatory steps. First, clause review: It is necessary to check the provisions on breach of contract liability, legal defense costs, and cost burden in the sales contract, supplementary agreement, and intermediary agreement word by word. Sometimes these provisions appear in the intermediary contract or supplementary agreement, which also have legal effect. However, this step is often overlooked. Second, evidence organization: To claim attorney's fees, it is necessary to provide the power of attorney contract, invoices, and payment vouchers. If necessary, it is also necessary to explain the necessity of legal defense and the level of fees. If only the power of attorney contract is available but no actual payment can be proven, the evidentiary value is weaker. Third, litigation strategy: Considering that the court may determine the fee sharing ratio based on the outcome of the case, and may reduce excessive fees, lawyers usually make reasonable claims based on the subject matter of the dispute and the degree of fault in their requests, and make the cost burden an important topic in the mediation stage. When handling housing sales cases, our firm usually assesses the feasibility and cost of the fee claim at the acceptance stage and plans the burden arrangement of legal defense costs simultaneously in the litigation requests and mediation proposals, so as to avoid winning the main dispute but losing out on the cost. It should be noted that the cost of legal defense also includes time cost. If the amount of the dispute is obviously lower than the sum of attorney's fees and litigation costs, it is necessary to rationally evaluate the overall input-output ratio and fully compare the cost and efficiency before choosing non-litigation methods.

IV. Practical suggestions and legal basis

Action recommendations: 1. Review whether there is an agreement on the burden of litigation costs in the contract; 2. Retain the entrustment contract, invoices, and payment receipts; 3. Organize other proofs of litigation expenses; 4. Assess the relationship between the disputed amount and the litigation costs; 5. Specify the basis and amount of attorney fees in the litigation request; 6. Specify the burden of fees in the mediation agreement; 7. Pay attention to the separate accounting of litigation fees. Legal basis: Articles 584 and 585 of the Civil Code of the People's Republic of China (both effective from January 1, 2021); Provisions on litigation fees in the "Method for Payment of Litigation Fees" (State Council Decree No. 481, effective from April 1, 2007); Related judicial interpretations of the Supreme People's Court on evidence in civil litigation.

5. Henglue Law Firm's Reminder

First, lawyers' fees are generally borne by themselves, and the contract provisions are the key basis. Second, the relevant provisions in the intermediary agreement are also valid, and do not forget to review them. Third, actual payment receipts must be provided. Fourth, the amount claimed should be reasonable, and excessive amounts may be reduced at the court's discretion. Fifth, pay attention to the issue of the proportion of fee sharing when winning part of the case. Sixth, the mediation agreement should clearly stipulate the burden of fees and the payment time. Seventh, rationally assess the relationship between the amount of the dispute and the cost of protecting rights, and if necessary, conduct a case assessment first. Eighth, keep all the receipts of the expenses incurred in protecting rights, and pay attention to keeping the original records of entrustment and payment. For the explanation of litigation procedures and claim design, you can refer to it.Creditor's rights and debts, and enforcementColumnSpecial services and other casesColumn.

VI. Frequently Asked Questions

Q1: If I win the lawsuit over a second-hand house, will the other party pay the attorney's fees?

Not necessarily. In principle, the attorney's fees are borne by the client, unless the contract explicitly stipulates that the breaching party shall bear the cost of safeguarding rights, or unless otherwise provided by law. Even if a claim is made, the court will usually determine the amount of support based on actual expenditure receipts, the necessity and reasonableness of safeguarding rights, rather than providing full support. Therefore, it is more effective to agree on the fee-bearing provisions at the contract signing stage.

Q2: If the contract doesn't stipulate attorney's fees, can I not get them at all?

There is still room for litigation. According to the rules on compensation for losses, one can claim the losses caused by breach of contract, including the reasonable expenses incurred for protecting one's rights. However, in judicial practice, there is no unified standard for determining this. It is necessary to provide the entrustment contract, invoices, and payment receipts to explain the actual expenses, and to demonstrate the necessity of protecting one's rights and the level of expenses. In the absence of an agreement, it is usually more difficult to obtain support than in the case of an agreement.

Q3: How can I prove the amount of the attorney's fees?

Generally, it is necessary to provide the attorney's agency contract, invoices, and bank transfer receipts, etc. to prove the attorney-client relationship and the actual payment situation. If there are only contracts but no payment receipts, the evidentiary value will be relatively weaker. In addition, some courts will refer to the reasonable range of local lawyer service fees for review, so the claimed amount should not deviate significantly from the normal level.

Q4: If I only won part of the case, how will the attorney's fees be divided?

In practice, the court will comprehensively consider the winning and losing ratio, the faults of both parties, and the degree of their responsibilities, and may share the litigation costs proportionally, rather than requiring the other party to bear all the costs. Therefore, when assessing the litigation costs, the possible cost-sharing ratio should be included in the cost calculation to avoid overestimating the recoverable amount.

Q5: If the mediation results in a settlement, can the lawyer's fees be charged to the other party?

This can be stipulated in the mediation agreement. The mediation agreement is legally binding on both parties, and the provisions on cost burden in it are also effective. It is recommended to clearly state which party will bear the attorney's fees, the amount or calculation method, and the payment time before signing the agreement, so as to avoid secondary disputes caused by vague expressions. At the same time, it is necessary to confirm the effective way and performance arrangements of the mediation agreement.

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

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence, to avoid missing the statutory time limit. →Legal services for real estate transactions·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.