[Direct answer]In the Beijing area, if developers delay the delivery of housing, buyers cannot immediately withdraw from the contract. The key lies in whether the delay constitutes a fundamental breach of contract or meets the conditions for contract termination stipulated in the contract. According to Article 563 of the Civil Code of the People's Republic of China (effective January 1, 2021), if a party delays the performance of its main obligations and fails to perform within a reasonable period after being urged to do so, or if the delay results in the failure to achieve the purpose of the contract, the party may terminate the contract. Commercial housing sales contracts typically stipulate the delivery deadline and the breach of contract liability for delayed delivery. Some contracts also stipulate that if the delay exceeds a certain number of days (such as 90 days or 180 days), the buyer has the right to terminate the contract. According to Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trials of Disputes over Commercial Housing Sales Contracts (amended on December 29, 2020), if the seller delays the delivery of the house and fails to perform within a reasonable period of three months after being urged to do so, the buyer's request to terminate the contract shall be supported. Buyers should first check the contract termination clauses, send a notice of default and keep the evidence, and then decide whether to withdraw from the contract. For similar issues, please refer to the above content.Real estate transactions and construction projectsColumn.

1. Problem background and typical scenarios

Such disputes are commonly seen in several situations: First, after the contractually agreed delivery date has passed, the developer delays for various reasons, and the buyer requests to withdraw from the contract; Second, when the delay time has not yet reached the contractually agreed or statutory termination period, the two parties argue over whether the buyer can withdraw from the contract; Third, even though the house has been delivered, there are quality problems that affect its use, and the buyer claims compensation for both the house and the quality issues; Fourth, after the developer's delay, the developer proposes to continue performing the contract and pay the breach of contract penalty, but the buyer insists on withdrawing from the contract; Fifth, when the project is suspended or abandoned, the buyer worries about not being able to receive the house and claims to terminate the contract and return the payment. When handling such cases in Beijing, the court usually first reviews the contractually agreed termination conditions, the number of days of delay, and the situation of reminders, and then determines whether the buyer can withdraw from the contract and whether to claim termination or just the breach of contract penalty. For cases involving the simultaneous termination of the loan contract and the return of funds, reference can be made to the relevant provisions of the Contract Law.Creditor's rights and debts, and enforcement casesColumn.

II. Key points of contention

First, whether the delay in handing over the house constitutes a fundamental breach of contract, that is, whether it results in the failure to achieve the purpose of the contract. Second, whether the conditions for terminating the contract as agreed in the contract have been met, and whether the number of days of delay has reached the agreed threshold. Third, the performance of the reminder procedure. If the reminder is not carried out or the reasonable time limit after the reminder has not expired, it may affect the right of termination. Fourth, the time limit for exercising the right of termination. Exceeding the time limit may result in the loss of the right. Fifth, the legal consequences after the termination of the contract, including the return of the house price, the handling of the loan contract, and the offset of the breach of contract penalty. Sixth, the choice of whether to continue to perform the contract and claim the breach of contract penalty or to terminate the contract and withdraw from the house. The two paths are different. Seventh, the legitimacy of the developer's defense, such as force majeure and government actions. The specific determination shall be based on the current effective laws and regulations and judicial rulings. For related contract disputes, please refer to the relevant provisions.Business and contract disputes in enterprisesColumn.

III. Professional analysis by Henglue Lawyers

Taking the dispute over the pre-sale contract of a commercial housing unit handled by Attorney Tian Jia Yan of our firm as an example, we can observe the logic of determining the liability for breach of contract in delayed delivery of the house. On April 30, 2021, Zhang Quan signed the "Beijing Commercial Housing Pre-sale Contract" with Beijing * Real Estate Development Co., Ltd. to purchase a house in a certain residential community, with a floor area of 99.41 square meters and a total price of 6,841,972 yuan. It was agreed that the developer should deliver the qualified commercial housing before June 15, 2023. The supplementary agreement signed on the same day stipulated that if the developer failed to deliver the house on time due to its own reasons, a 90-day grace period would be granted during which the developer would not bear any liability. After the expiration of the grace period, the developer would pay the buyer a penalty of 0.01% of the total price per day from the 91st day after the agreed delivery date until the actual delivery date. Although Zhang Quan paid the full amount, he did not receive the notice of delivery until the developer issued the move-in notice, nearly nine months after the delayed delivery of the house. Zhang Quan entrusted our firm's lawyers to sue the developer for the overdue penalty of 118,366.12 yuan from September 14, 2023 to March 5, 2024. The lawyers studied the contract and supplementary agreement, sorted out the core provisions such as the delivery time, the grace period, and the penalty standard, collected payment receipts, move-in notices, and completion and acceptance filing materials to form a complete chain of evidence, and argued against the defendant's objections: the pandemic was already a normal situation before the contract was signed and did not constitute force majeure; bad weather and government meetings were also not force majeure; the grace period should be strictly applied according to the contract; and the penalty standard of 0.01% of the total price per day was the true intention of both parties and not illegal. The court adopted the lawyers' arguments and ruled in favor of the overdue penalty of 118,366.12 yuan and the litigation fees. This case shows that when the delay in delivery of the house reaches the level of fundamental breach of contract, the buyer can claim both the penalty and the right to rescind the contract and request the return of the house in accordance with the contract or statutory conditions. The case was handled by Beijing Henglu Law Firm.Tian JiayanThe attorney (practice license number: 11101202111381309, the document issued by the judicial administrative organ shall prevail) acts as the agent.

IV. Practical Suggestions and Legal Basis

Action recommendations: 1. Verify the specific provisions in the contract regarding the delivery deadline, default liability, and the right of rescission, and clarify the number of days of delay after which the buyer can withdraw from the contract. 2. Send a written notice of default to the developer and retain the delivery receipt. This notice is an important prerequisite for exercising the right of rescission. 3. Calculate the number of days of delay and the amount of payments made, and assess whether to claim rescission of the contract and withdrawal from the property, or simply seek compensation for breach of contract. 4. Collect the pre-sale contract, supplementary agreements, payment receipts, notice of default, move-in notifications, and proof of delay. 5. If the project is suspended or abandoned, promptly consider rescinding the contract and handling the loan contract simultaneously. For relevant procedural explanations, please refer to the following sources:Special services and other casesThe column. In terms of legal basis, Articles 563 and 565 of the Civil Code of the People's Republic of China stipulate the statutory rescission and the exercise of the right of rescission; Article 11 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trials of Disputes over the Sale of Commercial Housing Contracts stipulates that if the other party fails to perform its obligations within a reasonable period of three months after being urged, the contract may be rescinded; Article 585 stipulates the rules for the agreement and adjustment of the penalty for breach of contract.

5. Henglu Law Firm's Advice

Risk Alert: First, to terminate the contract, you must meet the contractual or statutory termination conditions. It's not possible to terminate the contract just because it's overdue. If you assert your rights too early, your claim may be rejected. Second, the right of termination has a time limit for exercise. If you fail to exercise it in time, you may lose your rights. Third, when choosing between terminating the contract and claiming the breach of contract penalty, you should comprehensively consider the current status of the house, the progress of the project, and your personal needs. The evidence required for the two options is different. Fourth, if there is a mortgage loan involved, you should handle the loan contract together with the termination of the contract to avoid double burdens. It is recommended to fix the evidence of the overdue payment as soon as possible and, if necessary, entrust a professional lawyer to evaluate the legal path.

VI. Frequently Asked Questions

Q1: How long can a developer delay the handover of a property before a buyer can request a refund?

There is no fixed number of days, but it depends on the contractual provisions and statutory conditions. Many commercial housing sales contracts stipulate that if the seller fails to deliver the house within 90 or 180 days after the due date, the buyer has the right to rescind the contract. Legally, according to Article 11 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trials of Disputes over Commercial Housing Sales Contracts", if the seller delays in delivering the house and fails to perform within a reasonable period of three months after being reminded, the buyer's request to rescind the contract shall be supported. In addition, according to Article 563 of the Civil Code, if the delay results in the failure to achieve the purpose of the contract, the contract may also be rescinded. Therefore, it is necessary to first check the contractual provisions, then perform the reminder procedure and fix the evidence of the delay.

Q2: What evidence do I need to prepare to check out of the hotel?

The core evidence includes: the pre-sale contract for commercial housing and the supplementary agreement, which prove the delivery deadline and the conditions for termination; payment receipts, which prove that the house payment has been made; written reminder letters and delivery certificates, which prove that the reminder has been fulfilled; the move-in notices, overdue explanations, or extension announcements issued by the developer; photos of the current state of the house, and project suspension certificates, etc. These are used to prove the fact of the delay, the fulfillment of the reminder, and the achievement of the conditions for termination. The more complete the chain of evidence is, the higher the likelihood that the request for termination will be supported.

Q3: How much does it cost to check out of the hotel?

The fees mainly include attorney's fees and litigation fees. Attorney's fees are negotiated based on the amount and difficulty of the case, and there is no uniform standard; litigation fees are charged by the court according to the amount of the litigation request (usually the paid housing price and interest), and the winning party can bear part of the fees. If only the breach of contract penalty is claimed, the amount of the subject matter is relatively controllable. The specific amount should be evaluated based on the proportion of the paid amount, whether the loan contract is handled together, and other factors. It is recommended to make a preliminary judgment on the evidence and path first before deciding on the budget.

Q4: How long does it usually take to resolve disputes over delayed house handover and check-out?

If negotiations or sending letters prompt the developer to agree to cancel the refund, the issue may be resolved within a few months. If the case proceeds to litigation, the first-instance ordinary procedure generally takes no more than six months, but it can be extended if the case is complex. The second-instance procedure takes about three months. If the loan contract is also terminated and the project is stopped for appraisal, the time will be even longer. The key is to urge the developer to fulfill its obligations as soon as possible and fix the evidence to avoid repeated procedures. The execution stage depends on the developer's ability to repay the debt.

Q5: Can I get a refund if the developer says the delay due to force majeure allows me to cancel the purchase of the house?

Force majeure must meet the requirements of being unforeseeable, unavoidable, and insurmountable. For example, if the epidemic situation has become normal before the contract is signed, or if adverse weather, government meetings, etc. do not constitute substantial obstacles, it is usually difficult to determine it as force majeure. Purchasers should require developers to provide evidence of the direct causal relationship between the delay and force majeure; if they cannot prove it, they can still claim for rescission or compensation according to the contract provisions or statutory conditions. For reference, please refer to the following document:Beijing Henglu Law FirmThe path to analyze similar cases on the official website.

The above questions and answers are mainly based on the judicial practice in Beijing. There may be differences in the adjudication standards 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 relevant evidence materials to avoid missing the statutory time limit.Legal services for real estate transactions·Attorney Tian Jiaoyan·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on current effective laws and regulations and public 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.