[Direct answer]When selecting a lawyer to handle disputes over real estate purchase and sale contracts, the following four aspects should be given priority consideration: whether the lawyer has long been engaged in the field of real estate transactions; whether there are records of handling similar cases and their outcomes; whether the termination and claim solutions proposed by the lawyer are specific and feasible; and whether the fees charged are transparent and clearly documented. If the seller fails to release the mortgage in accordance with the contract, resulting in the contractual purpose being unachieved, the contract may be rescinded and compensation may be claimed in accordance with Article 563 of the Civil Code. In similar cases handled by Henglue Law Firm, the buyer was able to recover the deposit of 200,000 yuan and obtain compensation of 400,000 yuan for breach of contract. You can first consult with a lawyer to determine the specific legal issues involved in your case and seek professional legal advice to safeguard your legitimate rights and interests.Legal services for real estate transactions and construction projectsLearn about the business scope, or visitBeijing Henglue Law FirmVerify the team information.

I. Problem Background and Typical Scenarios

The housing transaction involves multiple steps, a long cycle, and large amounts of money. From signing the contract, releasing the mortgage, online signing, to transferring ownership, any break in any of these steps may lead to disputes. The most common scenarios include: the seller failing to release the mortgage as agreed or concealing a second mortgage, resulting in the house being unable to be transferred; the buyer paying the deposit or even the down payment, only to have the seller renege on the contract or sell the same house to two different buyers; developers failing to deliver the house or obtain the necessary certificates on time; or one party demanding to terminate the contract due to changes in purchase restrictions or loan policies but refusing to take responsibility. At this time, the most anxious thing for the parties involved is how to choose a lawyer: they are worried that the lawyer they hire is not familiar with the real estate transaction process and will just follow procedures; they are also worried about trusting verbal promises and having unclear agency scopes and fees. In the end, they may not be able to win the case even if they are in the right, or they may not be able to get their money back even if they win the case.

II. Key points of contention

  • The ability to terminate the contract and determine breach of contract: Whether the seller's actions such as failing to release the mortgage according to the agreement and refusing to entrust the funds constitute a fundamental breach of contract will determine whether it is possible to terminate the contract, refund the money, and claim compensation. It is necessary to accurately cite legal provisions and organize evidence around the performance milestones, which will directly affect the design of the lawsuit.
  • Penalty and compensation for losses: How the court adjusts the penalty stipulated in the contract if it is too high or too low; whether the penalty for the deposit and the penalty for breach of contract can be used concurrently; and how to calculate the losses from the rise and fall of the house price, which directly determine the final amount of compensation.
  • Security and enforcement of judgments: The other party may transfer property and funds during the litigation process. Can we apply for pre-litigation property preservation in time, and can the judgment be effectively enforced after it comes into effect? We can consider the following aspects in combination:Creditor-debtor relations and enforcement case servicesDesign the protection plan in advance.

III. Professional analysis by Henglue Law Firm

Take a second-hand housing sale dispute handled by Henglue Law Firm as an example. On January 27, 2021, Gai * signed the "Beijing City Second-hand Housing Sale and Purchase Contract" and the "Supplementary Agreement" with the sellers Guo * and Zhang * through a real estate agency, and paid a total of 200,000 yuan as a deposit. The contract stipulated that the sellers should submit an application for paying off the remaining loan to the original lending institution before February 5, 2021, and lift the mortgage registration no later than March 1, 2021. The down payment of 2,040,000 yuan was originally scheduled to be paid through bank fund escrow before February 23, 2021, but was postponed to March 9 due to the pandemic. However, the sellers not only failed to lift the mortgage on schedule, but also concealed the fact that the house was mortgaged twice, and the copy of the property ownership certificate provided by them did not match the original mortgage situation. When applying for escrow, they refused the fund escrow on the grounds that they could not use the escrow funds to repay the loan, resulting in the complete stagnation of the transfer. Gai * entrusted Henglue Law Firm to sue, claiming that the sellers breached the contract fundamentally and requested to rescind the contract and the supplementary agreement, revoke the online signing, return 200,000 yuan and pay the breach of contract damages, and apply for pre-litigation property preservation. During the trial, the sellers argued that the parties had agreed to rescind the contract through negotiation, and submitted chat records, audio recordings, and a "Contract Rescission Agreement" without the signatures of both parties. The lawyer pointed out in court that the so-called rescission agreement stipulated that the sellers should first pay the 200,000 yuan deposit to the agency, and then the parties would jointly rescind the online signing and the agency would make the payment. However, the sellers failed to pay the deposit to the agency as agreed, and the conditions stipulated in the agreement were not fulfilled, so the parties did not reach a rescission agreement. The court accepted this view and ruled that the sellers breached the contract, resulting in the failure to achieve the purpose of the contract. The court confirmed that the contract was rescinded on August 18, 2021, and the sellers should assist in rescinding the online signing and returning the paid 200,000 yuan within ten days, and pay the breach of contract damages of 400,000 yuan. After the sellers appealed, the second-instance court rejected the appeal and maintained the original judgment.

IV. Practical suggestions and legal basis

At the legal basis level: Article 563 of the Civil Code (effective January 1, 2021) stipulates that if a party delays in performing its obligations or engages in other breaches of contract that result in the failure to achieve the contractual purpose, the other party may terminate the contract; Article 566 stipulates the return and compensation liability after the contract is terminated; Articles 577 and 585 stipulate the rules for assuming breach of contract liability and adjusting the breach of contract penalty. If the agreed breach of contract penalty is lower or excessively high than the actual losses, the party may request the court to increase or appropriately reduce it. At the lawyer selection level: When meeting with a lawyer, please ask them to review the contract text and performance situation to preliminarily determine whether the contract can be terminated, the scope of claiming breach of contract penalties, and the timing of preservation measures. Assess their familiarity with transactional procedures such as online signing, mortgage release, and fund escrow. When signing the contract, clarify the agency phases and billing methods in writing. For matters involving the revocation of online signing and transfer registration, you may consult a lawyer for advice.Legal services for real estate transactions and construction projects; If the dispute is related to the design of contract terms or the transaction structure, it can also be discussed withBusiness and contract dispute resolution services for enterprisesTeam collaborative evaluation.

5. Henglu Law Firm's Reminder

The essence of choosing a lawyer is to select one with strong evidence organization and solution design capabilities, rather than just listening to promises. The above-mentioned case was handled by Beijing Henglu Law Firm.Wang FangliThe lawyer (practice license number: 11101201911086939, subject to the certificate issued by the judicial administrative organ) acted on behalf of the client, following the entire process from filing a lawsuit, pre-litigation property preservation to the second instance, helping the buyer terminate the contract, recover the deposit of 200,000 yuan, and obtain the breach of contract penalty of 400,000 yuan. Before signing the contract, it is necessary to verify the mortgage status of the house, specify the term of mortgage release and the arrangement of fund escrow, which is the first line of defense against disputes; once there are obstacles to the transfer of ownership, it is necessary to fix the evidence and consult professional lawyers as soon as possible to avoid the house being sold to others, mortgaged again, or sealed up during the delay.

Q1: If the seller refuses to release the mortgage and transfer the ownership, can I terminate the contract and claim the breach of contract penalty?

Yes. If the seller fails to release the mortgage within the agreed time limit or refuses to accept the payment in the agreed manner, resulting in the failure to achieve the purpose of the contract, it constitutes a fundamental breach of contract. According to Article 563 of the Civil Code, the buyer may exercise the right of unilateral rescission of the contract and, in accordance with Articles 566 and 577, demand the return of the paid amounts and compensation for losses. In the aforementioned case, the court confirmed the rescission of the contract and ordered the seller to return the deposit of 200,000 yuan and pay a penalty of 400,000 yuan. Note the delivery and preservation timing of the notice of rescission. It is recommended to entrust a lawyer to evaluate and issue a written notice of rescission, and simultaneously apply for property preservation to prevent the transfer of assets.

Q2: When filing a lawsuit regarding a housing transaction, what evidence do I need to prepare?

The core evidence includes: the house purchase and sale contract and supplementary agreement, the deposit and payment vouchers for the house price, the communication records related to the loan and mortgage release, the materials for fund escrow, the online signing information, the copy of the property ownership certificate and the results of the mortgage registration inquiry, the records of reminders and negotiations (WeChat messages and audio recordings). The evidence should be organized along three lines: proving the content of the agreement, the specific points where the other party failed to perform its obligations, and the causal relationship between the breach of contract and the losses suffered by the plaintiff. If there is concealment of a second mortgage, the plaintiff may apply to retrieve the real estate registration information; if there are losses due to fluctuations in housing prices, the plaintiff may apply for a judicial appraisal.

Q3: How much does it cost to hire a lawyer and go to court for a housing sales dispute?

The attorney's fees are set according to market-based pricing. They are usually negotiated based on the case's subject matter and complexity and specified in the written agency contract. The case acceptance fee is paid in accordance with Article 13 of the "Measures for the Payment of Litigation Costs" (effective April 1, 2007), which stipulates that the fee is calculated based on the amount of the dispute. For example, for cases involving amounts not exceeding 10,000 yuan, the fee is 50 yuan per case; for cases involving amounts exceeding 10,000 yuan but not exceeding 100,000 yuan, the fee is 2.5% of the amount. A separate preservation fee is charged for applying for property preservation. Compared with simply comparing prices, it is more important to pay attention to the transparency of fees, the quality of the solution, and the actual results of similar cases. The fee structure should be clearly confirmed item by item before signing the contract.

Q4: How long does a lawsuit over a house sale and purchase typically last?

The first-instance trial applying the summary procedure is generally concluded within three months, and the one applying the ordinary procedure is generally concluded within six months; if the other party appeals, the second-instance trial is generally concluded within three months. If it involves appraisal, identification, or public notice service, the period will be extended accordingly. The aforementioned case went through two levels of trial, first-instance and second-instance, and completed pre-litigation property preservation. In the end, the second-instance court upheld the original judgment. It is recommended to advance the preservation and trial procedures simultaneously under the guidance of a lawyer, and to prioritize seeking a mediation solution with performance guarantees, which can significantly shorten the recovery period and avoid the secondary risks caused by prolonged indecision.

Q5: If you're worried that the seller might sell the house to someone else or re-mortgage it, what should you do first?

Apply for property preservation as soon as possible. Applying for the seizure of the houses involved in the case before or during litigation can prevent the situation of "selling the same house to two different buyers" or "re-mortgaging" leading to the inability to enforce the judgment; after pre-litigation preservation, the plaintiff should file a lawsuit within the statutory time limit as required by the court, otherwise the preservation will be lifted. At the same time, keep evidence of the other party's breach of contract and communication, and inquire about the ownership and mortgage status of the house from the real estate registration department to grasp the latest rights encumbrance. For those who have paid a large amount of money for the house, the preservation amount should cover the amount paid and the claim for breach of contract; specific preservation plans and timing are recommended to be designed by lawyers in accordance with the progress 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 Wang Fangli·Beijing Henglu Law Firm