[Direct answer]Whether the down payment for a second-hand house can be refunded depends on who breaches the contract and the reasons why the contract cannot be performed. According to Article LXXXVII of the Civil Code (effective January 1, 2021): If the buyer refuses to sign the contract or purchase the house without a valid reason, they have no right to request a refund of the down payment; if the seller refuses to sell the house after receiving the down payment or engages in "one house, two sales", they shall refund the down payment in double; if the contract cannot be concluded due to factors beyond the control of both parties (such as the loan not being approved, adjustment of purchase restrictions, or the house being sealed), the down payment shall be refunded. Additionally, according to Article LXXXVI, the down payment shall not exceed 20% of the subject matter of the main contract. The excess portion shall not produce the effect of a down payment and may be claimed back as unjust enrichment. It is recommended to first fix written evidence and communication records, determine the party responsible, and then negotiate or sue, and if necessary, seek legal advice.Legal services for the purchase and sale of real estateOr throughBeijing Henglue Law FirmEvaluation.

I. Legal basis and interpretation of provisions

1. Article 586 of the Civil Code of the People's Republic of China (effective on January 1, 2021)

The parties may agree that one party shall pay a deposit to the other party as a guarantee of the creditor's rights. The deposit contract shall be established upon the actual delivery of the deposit; the amount of the deposit shall be agreed upon by the parties, but shall not exceed 20% of the subject matter of the main contract. The excess part shall not produce the effect of a deposit. The legislative purpose is to limit the intensity of the guarantee and prevent the other party from being burdened by the deposit. In the application of this issue: the deposit guarantees the obligation of "concluding a contract or performing a contract". If the receipt only writes "deposit" or "intention deposit" without any description of the nature of the deposit, it may be regarded as a prepayment and the penalty provisions shall not apply; the part exceeding 20% of the house price can only be claimed as a prepayment for return, and it shall not participate in the double return.

2. Article 587 of the Civil Code of the People's Republic of China (effective January 1, 2021)

After the debtor fulfills the debt, the deposit shall be offset against the price or recovered; if the party paying the deposit fails to fulfill the debt or fails to fulfill it in accordance with the agreement, resulting in the failure to achieve the purpose of the contract, it shall not have the right to request the return of the deposit; if the party receiving the deposit fails to fulfill or fails to fulfill it in accordance with the agreement, resulting in the failure to achieve the purpose of the contract, it shall return the deposit in double. The applicable premise is "the failure to achieve the purpose of the contract due to breach of contract" — the key point of evidence is who is the breaching party: refusing to sign a formal contract, increasing the price and breaching the contract, selling elsewhere, refusing to cooperate with online signing and transfer of ownership, etc. will all be recorded in the case and become the basis for attribution of liability.

3. Practical judicial interpretation (how the court handles the refund of the deposit)

The court generally handles deposit disputes in three steps: first, it checks whether the deposit clause and the receipt constitute a deposit relationship; then, it investigates the reasons why the contract failed to be concluded or performed; finally, it applies penalties according to the fault liability. Common circumstances supporting refunds include: the seller selling the same house to two buyers, the house being sealed and unable to transfer ownership, the buyer losing the eligibility to purchase the house due to changes in purchase restrictions or loan policies, and the parties failing to reach an agreement on the main terms of the contract (payment methods, tax burden sharing) and the failure being not attributable to either party. Common circumstances not supporting refunds include: the buyer simply changing his/her mind, refusing to sign the contract due to minor issues, delaying the loan process without policy basis. Regarding the distinction between "deposit" and "deposit", the court makes a comprehensive judgment based on the written expression and transaction habits. Oral supplementation is difficult to refute the written records.

II. Henglue Law Firm's Practical Experience

From Henglue's practical observations of similar cases, disputes over down payments for second-hand houses mainly take five forms: First, after signing the contract, the buyer finds that the housing prices are declining and regrets it, fabricating housing defects to demand a refund of the down payment; Second, after signing the contract, the seller breaks the contract due to rising housing prices or sells the same house to two buyers, only willing to refund the down payment but not to return it doubled; Third, the buyer's loan is not approved, and he/she and the seller argue over whether it is an "unattributable cause"; Fourth, only the purchase agreement or receipt is signed, and the online signing terms have not been agreed upon, with both parties having different opinions on who refuses to sign the contract; Fifth, the receipt is written as "deposit" or "intention deposit", and the nature of the deposit is questionable. Generally, the judge strictly reviews the written evidence and communication records to determine who refuses to perform or sets obstacles, and who should bear the consequences of the penalty; for policy-related risks, the court usually allows both parties to bear their own losses and return the down payment according to the principle of fairness.

There are three pitfalls that parties are most likely to fall into: Firstly, when making payments, they only accept verbal promises and fail to write "deposit" and the purpose of the payment on the receipt, making it difficult to prove the nature of the guarantee later on. Secondly, after the other party breaches the contract, they are eager to engage in emotional confrontations and disputes for months before taking action, missing the first window to fix the evidence of the breach of contract (such as the online signing records of the resale). Thirdly, they mistakenly believe that they can only choose one between "refunding the deposit" and "compensating for the losses" — in addition to doubling the refund of the deposit when the seller breaches the contract, the actual losses exceeding the deposit can still be claimed separately, but the deposit and the breach of contract penalty cannot be used concurrently. When encountering disputes, parties should first sort out the contract terms, transfer records, and chat logs, judge their own position according to the logic of responsibility, and then decide whether to negotiate or sue. For relevant legal basis and practical guidelines, please refer to the following materials:Legal services for real estate transactionsThe content of the column, or viaBeijing Henglu Law FirmUnderstand the overall path of protecting one's rights.

III. Frequently Asked Questions

Q1: Are the deposit and the booking fee the same thing?

No. The deposit is a statutory guarantee method, and the penalty of double repayment applies; "deposit" and "intentional deposit" are usually regarded as advance payments, without guarantee nature, and can be refunded in principle but not subject to penalties. The key lies in the written expression and contractual content: If the receipt or contract specifies "deposit" and stipulates guarantee matters, it shall be treated as a deposit; if the nature is not specified, the court will determine it comprehensively based on transaction habits and chat records. When making payments, it is necessary to require that the "deposit" and corresponding housing information be specified.

Q2: What should I do if I've paid a deposit exceeding 20% of the total house price?

According to Article 586 of the Civil Code, the portion of the deposit exceeding 20% of the subject matter of the main contract does not produce the effect of a deposit and cannot apply the penalty of double repayment. However, this portion is of the nature of a prepayment, and the party may request its return after the contract is terminated. For example, if the house price is 4 million yuan and the deposit paid is 1 million yuan, only 800,000 yuan is subject to the penalty of a deposit, and the remaining 200,000 yuan is treated as a prepayment. When making a claim, the party should distinguish the nature of the two parts in the litigation request to avoid the partial rejection of the general request for "double repayment of 1 million yuan".

Q3: Can the deposit be refunded if the loan is not approved?

It depends on the contractual provisions and the determination of liability. If the contract stipulates that "the shortage of the loan shall be made up in cash", the buyer's rescission of the contract on the grounds of the loan being rejected will not be supported; if the contract stipulates that the buyer can rescind the contract if the loan is not approved or there are no loan provisions, it is a circumstance that can be rescinded; if the contract cannot be performed due to factors beyond the control of both parties, such as the tightening of bank credit policies and the adjustment of purchase and loan restrictions, the deposit shall be refunded in accordance with Article 587 of the Civil Code. The buyer should keep the bank's loan rejection notice, credit report, and policy documents to prove that it is not his own fault.

Q4: If the seller sells the same house to two different buyers, will they lose their deposit if they fail to complete the transaction with the second buyer?

It's a loss. If the seller breaches the contract by "selling the same house to two different buyers" after receiving the down payment, the buyer can, in addition to claiming double repayment of the down payment, also claim compensation for actual losses according to Article 584 of the Civil Code. The part of the losses exceeding the amount of the down payment can be claimed separately, such as the loss of the house price difference, the paid taxes and agency fees, etc. In practice, if there is sufficient evidence (such as the resale price and the appraisal report) to prove the loss of the house price difference, the buyer can often obtain partial support. The buyer should promptly preserve the online signing and transfer information of the house sold by the seller elsewhere, and not rush to terminate the contract only to claim the down payment after the breach of contract.

Q5: What evidence do I need to prepare to sue for the return of the deposit?

The five core pieces of evidence are as follows: 1. A deposit receipt and transfer voucher, to prove the payment of the deposit and its amount. 2. A purchase agreement, sales contract, or supplementary agreement, to demonstrate the main terms agreed upon by both parties. 3. Communication records (WeChat messages, audio recordings), to show who refused to sign or perform the contract. 4. Evidence of the other party's breach of contract, such as online signing records of the property being sold to someone else, price increase notifications, or chat records showing refusal to cooperate. 5. Evidence of the plaintiff's compliance with the contract, such as raising funds on schedule, attending meetings on time, or bank transaction records. When the evidence chain is complete, the case is usually a straightforward claim for performance, with manageable timelines and costs.

IV. Suggestions for Protecting Rights and Interests

  • When making the payment, write the words "deposit", the location of the house, the amount, the signing deadline into the receipt, and agree on the refund rules if the contract cannot be signed.
  • After the other party breaches the contract, fix the evidence as soon as possible: online signing inquiries, chat records, audio recordings, and information about the property being sold to others. Don't delay in emotional confrontations.
  • If the failure to fulfill the contract is due to policy changes or loan obstacles, keep the policy documents and bank notifications, and claim the return of the deposit on the grounds of non-attributable reasons rather than defaulting on the deposit.
  • When it's difficult to determine who is responsible, first send a letter to urge the other party to respond within a specified timeframe, and then record their attitude in written evidence. After that, you can choose to negotiate, mediate, or file a lawsuit.
  • If the seller breaches the contract and the losses exceed the deposit, the buyer should simultaneously claim compensation for the price difference and other losses, rather than just focusing on the double deposit alone.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with evidence materials, so as to avoid missing the statutory time limit. →Legal services for the purchase and sale of real estate·Beijing Henglu Law Firm