[Direct answer]In the Beijing area, in second-hand housing transactions, if the seller refuses to sell after receiving the deposit or the purchase price, this constitutes a breach of contract, and the buyer may claim for continued performance or compensation for losses in accordance with Articles 577 and 584 of the Civil Code of the People's Republic of China. If the contract still has the possibility of performance, the buyer may sue for forced transfer of ownership; if the seller breaches the contract fundamentally, the buyer may terminate the contract and request the return of the paid money, compensation for the housing price difference, and other losses of benefits that can be obtained. If there is an agreed amount of the breach of contract penalty, it shall be in accordance with the agreement; if there is no agreement, it shall be in accordance with the actual losses. It is recommended to keep the contract, communicate with the seller, and collect evidence of the house price. When necessary, refer to relevant columns for reference.

I. Problem Background and Typical Scenarios

It's quite common for sellers to breach the contract and refuse to sell when there are fluctuations in housing prices or disagreements within families. Typical scenarios include: after signing the contract, the seller delays the sale on the grounds of the spouse's disagreement, the house being sealed up, or "changing their mind"; receiving the deposit but selling the house to others; or even selling the same house to two different buyers. Buyers often have already made arrangements for loans, renovations, or exchanges, and find themselves in a passive situation. In second-hand housing transactions in Beijing, the demand for breach of contract claims is particularly prominent, and relevant rules can be referred to in the corresponding columns.

II. Key points of contention

First, whether the seller constitutes a breach of contract depends on whether the contract's effectiveness and the obstacles to performance can be attributed to the seller. Second, whether the buyer requests to continue the performance of the contract or to rescind the contract depends on whether the house can be transferred or whether it has been sold to a third party. Third, the scope of compensation includes the penalty for the deposit, the interest on the paid amount, the price difference of the house, and the agency fees. Fourth, whether the breach of contract penalty and the deposit can be used concurrently or alternatively. Fifth, the effectiveness of the seller's defense of "the co-owners' disagreement". The bona fide buyer can claim apparent agency or breach of contract compensation. Specifically, the current effective laws and regulations and judicial rulings shall prevail. Contract disputes can be referred to for reference.Business and contract disputes in enterprisesFor the column, you can refer to the implementation of collection of payments for referenceCreditor's rights and debts, and enforcement casesColumn.

III. Professional analysis by Henglue Lawyers

Take a case of breach of contract claims in the sale of commercial housing handled by our firm as an example, we can observe the adjudication logic of the breaching party compensating the non-breaching party when the seller breaches the contract. On April 30, 2021, Zhang Quan signed the "Beijing Commercial Housing Pre-sale Contract" with Beijing A Real Estate to purchase a house with a net floor area of 99.41 square meters and a total price of 6,841,972 yuan in a certain residential community, with delivery scheduled for June 15, 2023. The supplementary agreement granted a 90-day grace period, after which the seller would pay a breach of contract penalty of 0.01% of the total price per day. However, A Company failed to deliver the house until March 5, 2024, a delay of nearly nine months. Zhang Quan entrusted our firm's lawyers to sue A Company, demanding a breach of contract penalty of 118,366.12 yuan from September 14, 2023 to March 5, 2024. The dispute focused on whether the COVID-19 pandemic constituted a force majeure, whether the grace period could be cumulative, and the standard of the breach of contract penalty. The court adopted the lawyers' opinion, ruling that the COVID-19 pandemic had become a normal situation before the contract was signed and did not constitute a force majeure, and the grace period should be strictly applied. The agreement of 0.01% of the total price per day was valid, and the court ordered A Company to pay the full breach of contract penalty of 118,366.12 yuan and the litigation fees. Our firm has also handled disputes over developers' failure to deliver on time, resulting in fundamental breaches of contract and full refunds and compensation for buyers, demonstrating that the breaching party must ultimately bear responsibility. This case was handled by Beijing Henglu Law Firm.Tian Jia YanThe attorney (practice certificate number: 11101202111381309, subject to the certificate issued by the judicial administrative organ) acts as the agent.

IV. Practical Suggestions and Legal Basis

Action proposal: First, stipulate clear breach of contract clauses and deposit terms in the contract to increase the cost of breaching the contract. Relevant templates can be referred to for referenceSpecial services and other casesFirst, the buyer should promptly notify the seller of the breach of contract and provide evidence to prove it. Second, if the seller reneges on the contract, the buyer should send a letter to urge the seller to perform the contract and preserve evidence to prevent losses caused by the fluctuation of housing prices. Third, the buyer should assess whether the house can still be transferred and decide whether to request the seller to continue to perform the contract or to terminate the contract and claim compensation. Fourth, the buyer should entrust an appraisal institution to estimate the loss of profits, such as the difference in the price of the house. Fifth, after winning the lawsuit, the buyer should promptly apply for enforcement, and relevant matters can be referred to for referenceLand expropriation and demolition, and administrative litigationThe column. In terms of legal basis, Article 577 of the Civil Code of the People's Republic of China stipulates the liability for breach of contract, Article 584 stipulates the compensation for losses including the interests that can be obtained after the performance of the contract, and Article 588 stipulates that the deposit and the breach of contract penalty shall be applied alternatively. The relevant judicial interpretations also stipulate the scope of compensation for the sale of the same house to two buyers and other issues.

5. Henglue Law Firm's Reminder

Risk Warning: Firstly, if the seller "decides not to sell" anymore, it does not mean that the contract is null and void. The buyer still has the right to continue to perform the contract or claim compensation. Secondly, it is necessary to fix the evidence of the loss of the housing price difference in time. Delay may lead to the unsupported part of the claim. Thirdly, in the case of "one house sold to two buyers", the bona fide buyer may have priority, and the original buyer can only seek compensation. Fourthly, if the co-owner raises the defense of "not consenting", it may not exempt him from liability. The bona fide buyer can claim compensation. It is recommended to consult a professional lawyer about the claims and evidence as soon as possible, and make a plan based on the relevant columns.

VI. Frequently Asked Questions

Q1: If the seller breaches the contract and refuses to sell the item, can I request compensation?

Yes. If the seller regrets not selling the property after receiving the deposit or the full purchase price, it constitutes a breach of contract. The buyer may, in accordance with Article 577 of the Civil Code, claim for the seller to continue to perform the contract or compensate for the losses; if the seller breaches the contract fundamentally and the contractual purpose is frustrated, the buyer may rescind the contract and request the return of the paid amount, compensation for the housing price difference, and other available benefits. If there is a contractual penalty, it shall be in accordance with the contract; if there is no contractual penalty, it shall be in accordance with the actual losses. Whether the buyer can obtain compensation depends on the seller's breach of contract facts and the buyer's evidence.

Q2: What evidence do I need to prepare to claim compensation from a defaulting seller?

The following items should be prepared: First, the house purchase contract, the deposit and the payment receipt of the house price; Second, the communication records between the two parties, which reflect that the seller clearly expressed that he/she would not sell the house or delayed the sale; Third, evidence of the current state of the house, such as the house being sold to others or the information of being sealed up; Fourth, evidence of the fluctuation of the house price, which is used to calculate the loss of the price difference; Fifth, proof of the buyer's performance of the contract, such as the loan and the arrangement of the house exchange. The more comprehensive the evidence is, the easier it will be to support the claim amount.

Q3: How much compensation can I get if the seller breaches the contract and refuses to sell the item?

There is no unified standard for the amount of compensation. If the contract stipulates a penalty or a deposit, the party may claim the penalty according to the contract; if no such stipulation exists, the amount of compensation shall be determined based on the actual losses, including the interest on the paid housing price, the price difference between the new and old houses, the agency fees, etc. When the housing price rises, the price difference may be considerable, but the party needs to provide evidence. In some cases, the court will adjust the amount based on the fault and foreseeable rules. The specific amount should be evaluated in light of the contract and the market situation. It is recommended to consult a professional lawyer for advice.

Q4: How long does it take to litigate a claim for breach of contract by the seller?

Such litigations usually take no more than six months in the first-instance ordinary procedure, and if the facts are clear, the summary procedure can be applied; if it involves the sale of the same house to two different buyers, third-party rights, or appraisal of the house price, the period will be longer. The appellant's appeal in the second instance takes about three months. The execution depends on whether the house can be transferred or the seller's repayment ability. The key is to sue in time and preserve the property to prevent the seller from transferring or selling it to others. Delay will increase the difficulty of recovering the payment.

Q5: What should I do if the seller changes their mind and refuses to sell the item?

The first step is to send a written notice to the seller demanding performance and keep the relevant evidence; the second step is to assess whether the house can still be transferred, and decide whether to request continued performance or seek compensation; the third step is to fix the evidence of the seller's breach of contract and the price of the house, and estimate the loss of the price difference; the fourth step is to sue in court if no agreement is reached, and apply for property preservation if necessary; the fifth step is to apply for enforcement after winning the lawsuit. It is recommended to consult a lawyer as soon as possible to avoid missing the best opportunity to protect your rights.

The above Q&A is mainly based on the judicial practice in Beijing. There may be differences in the adjudication guidelines 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 real estate transactions·Attorney Tian Jiayan·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.