[Direct answer]In the Beijing area, the standard for compensation for delayed delivery of housing is based on the contractual agreement. If there is an agreement, the compensation shall be calculated in accordance with the agreement, with a common penalty of 0.01% to 0.05% of the paid housing price per day. If there is no agreement or the agreed penalty is obviously too low, the actual losses can be claimed by referring to the rental standards of similar houses in the same area or the interest on overdue loans. Developers often claim force majeure exemption from liability due to the pandemic and bad weather, but if the contract was signed after the pandemic became normal and the risks were foreseeable, it will generally not be supported. The grace period stipulated in the supplementary agreement should also be strictly applied. After the grace period expires, if the housing is not delivered, the developer shall pay the penalty. It is recommended to first check the terms of the contract and the supplementary agreement, and refer to them when necessary.Property sales and construction projectsColumn.

I. Problem background and typical scenarios

Delayed delivery of housing is a frequent dispute in the pre-sale of commercial housing. Typical situations include: first, the developer notifies the buyer to move in several months or even longer after the delay, citing reasons such as a tight capital chain and construction delays; second, the contract stipulates an extension period, and the developer claims that the extension period can be cumulated with other delays to exempt itself from responsibility during this period; third, the house has quality defects but the developer still requires the buyer to accept the house, and the buyer is worried that this will be regarded as tacit acceptance of delivery; fourth, the developer uses force majeure such as the pandemic, government meetings, and bad weather to refuse to pay the breach of contract penalty. When handling similar cases in Beijing, the court usually first reviews the contractual provisions and the time node of the pandemic, and then determines whether the exemption of liability is established. The relevant rules can be referred to for reference.Real estate transactions and construction projectsColumn.

II. Key points of contention

Focus One: Whether the defense of force majeure is established depends on the time of signing the contract and the normalization of the epidemic situation. Foreseeable risks generally do not constitute exemption from liability. Focus Two: The application of the grace period. The developer's claim that the grace period should be added to other extensions lacks basis. Focus Three: The calculation standard of the penalty. It is more common to set the penalty at 0.01% to 0.05% of the contract amount per day, which is valid if it reflects the true intention of the parties. Focus Four: Whether the penalty is too high and should be adjusted. The developer often requests a reduction, but if the agreed amount is reasonable, it will generally be supported. Focus Five: Whether the defects in the quality of the house exempt the developer from the responsibility for delay. If the house fails to meet the agreed delivery conditions, it still constitutes a delay. For matters involving enforcement and preservation, reference can be made to the relevant provisions.Creditor's rights and debts, and enforcement casesColumn.

III. Professional analysis by Henglue Lawyers

Taking a dispute over breach of contract for delayed delivery of a house handled by our firm as an example, it can be seen that the contractually agreed penalty standard is usually supported. On April 30, 2021, Zhang Quan signed a "Beijing Commercial Housing Pre-sale Contract" with Beijing A Real Estate Development Co., Ltd. to purchase a house in a certain residential area with a net floor area of 99.41 square meters and a total price of 6,841,972 yuan, with a delivery date set for June 15, 2023. The supplementary agreement on the same day stipulated that if the developer delayed delivery due to its own reasons, it would be granted a 90-day grace period during which the developer would not be held liable. After the grace period expired, the developer would pay a penalty of 0.01% of the total price per day of delay. Zhang Quan paid the full amount, but A Company did not issue a move-in notice until February 27, 2024, requiring him to move in on March 5. The delay in delivery exceeded nine months. Zhang Quan entrusted our firm's lawyers to file a lawsuit demanding a penalty of 118,366.12 yuan for the delay in delivery from September 14, 2023 to March 5, 2024. The dispute focused on three points: First, A Company claimed that the delay of 187 days was due to force majeure such as the pandemic, meetings, and bad weather. The lawyers pointed out that the contract was signed in 2021, and the pandemic had already become a normal situation at that time. The developer should have foreseen this and it did not constitute force majeure. Second, A Company claimed that the grace period could be cumulated with other delays. The lawyers pointed out that the grace period should be strictly applied according to the contract, and the developer should pay the penalty after the grace period expired. Third, the penalty standard stipulated in the supplementary agreement was a true intention and not illegal. The court adopted the lawyers' opinions, determined that the pandemic had already become a normal situation before the contract was signed and that A Company should have foreseen it, so it did not constitute force majeure. The grace period should be strictly applied according to the contract. In the end, the court ruled that A Company should pay the full penalty of 118,366.12 yuan and bear the litigation costs. This case was handled by Beijing Henglu Law Firm.Tian JiayanThe lawyer (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: First, when signing the contract, check the delivery time, grace period, and penalty clause item by item, and pay attention to the unfair grace period provisions in advance; Second, send a letter of reminder in a timely manner after the deadline and keep the contract, payment receipts, move-in notices, and completion and acceptance filing materials; Third, calculate the start and end dates and amounts of the penalty, and if necessary, entrust a lawyer to claim it; Fourth, if the developer refuses to pay, you can claim that the other party should bear the litigation fees in the lawsuit, and the relevant procedures can be referred to for reference.Special services and other casesThe column. In terms of legal basis, Article 577 of the Civil Code of the People's Republic of China stipulates that a party who fails to perform a contractual obligation shall bear contractual liabilities such as continuing to perform the contract, taking remedial measures, or compensating for losses, which came into effect on January 1, 2021; Article 585 clearly stipulates that a party whose contractual penalty is lower than the losses may request the people's court or arbitration institution to increase it; Article 13 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 (which came into effect on June 1, 2003 and was amended on December 29, 2020) stipulates the liability for breach of contract for late delivery of the house.

5. Henglue Law Firm's Reminder

Risk Alert: First, the extension period is a common exemption clause used by developers. It should be strictly judged according to the contract provisions and cannot be arbitrarily added. Second, the defense of force majeure such as the pandemic should be determined based on the signing time of the contract. Those signed after the pandemic becomes normal are usually not supported. Third, if the agreed penalty is too low, you can request an increase to make up for the actual losses. Fourth, defects in the quality of the house do not necessarily exempt the developer from the responsibility for delays. It is recommended to fix the evidence as soon as possible after the delay and consult a lawyer if necessary.Property sales and construction projectsIn this column, professional lawyers will evaluate the calculation of the breach of contract penalty and the path to protect one's rights.

VI. Frequently Asked Questions

Q1: Can I definitely get the breach of contract penalty for late delivery of the house?

It's not a guarantee of victory, but if the contract contains clear provisions and the developer has no legitimate reason, the probability of obtaining support is higher. Calculating the penalty for breach of contract on a daily basis according to the contract is a common judicial practice. If the developer claims force majeure such as the pandemic, it depends on the signing time of the contract and its predictability. Signing a contract after the situation has normalized usually does not constitute a valid exemption from liability. It is recommended to first check the contract and the extension period provisions, and then evaluate the chances of winning the case.

Q2: What evidence should be prepared to prove that the developer violated the contract by failing to deliver the house on time?

The following are the required preparations: 1. The pre-sale contract for commercial housing and its supplementary agreement, which confirm the delivery time and the standard of the breach of contract penalty; 2. Payment receipts for the purchase price, which demonstrate the base amount of the paid housing price; 3. Notifications of occupancy and reminder letters issued by the developer, which verify the actual delivery or the fact of a delay in delivery; 4. Records of completion and acceptance, photos of housing defects, etc.; 5. Communication records. Only when all these pieces of evidence are complete can the breach of contract penalty period and amount be accurately calculated.

Q3: How much does it cost to sue for breach of contract due to delayed handover of the house?

The fees include attorney fees and litigation fees. The attorney fees are determined through negotiation based on the complexity of the case and the amount of the subject matter; the litigation fees are charged in stages according to the amount of the litigation request (the amount of the breach of contract penalty), and the winning party may share the costs proportionally. In practice, the losing party may bear the costs. If the claim is solely for a breach of contract penalty, the costs are relatively manageable. However, if the claim also includes the dissolution of the contract and the return of the housing payment, the costs will increase accordingly. It is recommended to consult on the amount first and then make a budget.

Q4: How long does it usually take to litigate for the breach of contract penalty for late delivery of housing?

The first-instance ordinary procedure generally does not exceed six months, and the simple procedure can be concluded faster if the facts are clear; if the developer raises a counterclaim of force majeure or excessive penalty, the trial will be extended accordingly. After the judgment, if the other party fails to perform, it is necessary to apply for enforcement. The key is to fix the contract and delivery evidence as soon as possible to avoid delaying the calculation of the dispute during the period.

Q5: What should I do if the developer fails to deliver the property on time?

The first step is to verify the provisions of the contract and supplementary agreement regarding the grace period and the penalty for breach of contract; the second step is to send a written reminder and keep evidence such as the move-in notice; the third step is to calculate the start and end dates and the amount of the penalty for breach of contract; the fourth step is to sue promptly if no agreement is reached, and claim the penalty for breach of contract and litigation fees; the fifth step is to entrust a professional lawyer to participate in evidence collection and litigation if necessary, and note that developers often use force majeure as a defense, so it is necessary to prepare counterarguments in advance.

The above answer is based on the judicial practice in Beijing. The judicial interpretations in other provinces or cities may vary. For specific cases, please refer to the local rules and evidence situation.

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 Jiayan·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the 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.