[Direct answer]After receiving the deposit, if the seller changes his mind and refuses to sell, it constitutes a fundamental breach of contract. According to Article 587 of the Civil Code of the People's Republic of China on the penalty for the deposit, if the party receiving the deposit fails to perform the obligation or performs it in a manner inconsistent with the agreement, resulting in the failure to achieve the purpose of the contract, it shall return the deposit in double; the buyer may also rescind the contract and claim compensation for the actual losses according to Articles 563 and 577. However, the penalty for the deposit and the compensation exceeding the actual losses cannot be claimed repeatedly. It is recommended to first fix the evidence such as the deposit receipt, the house purchase contract, WeChat chat records and reminder letters, and send a letter to require the seller to continue to perform the contract or return the deposit in double. If no agreement can be reached, the buyer may file a lawsuit with the court of the place where the house is located. For more risks in real estate transactions, please refer to the relevant provisions.Legal services for real estate transactions and construction projectsAndBeijing Henglu Law Firm.

1. Problem background and typical scenarios

In second-hand housing transactions, the buyer pays a deposit (commonly ranging from 10,000 to hundreds of thousands of yuan) before and after signing the contract to lock in the property and guarantee performance. Typical dispute scenarios include: after signing the contract, the seller delays the transaction for reasons such as relatives' disapproval, uncompleted household registration, or failed loan approval, and ultimately explicitly refuses to sell the property; or the seller sells the same property to two different buyers and completes the transfer; there are also cases where the seller refuses to double refund the deposit on the grounds that it's just a deposit, not a formal contract deposit. Such disputes often occur during periods of housing price fluctuations. Buyers want to recover their money but also worry about the property being resold. If they don't act promptly, they may easily miss the window for preservation of evidence and litigation.

II. Key points of contention

The core disputes in such cases include three aspects: First, the nature of the payment—is it a deposit or a good-faith deposit? Only if it is explicitly stated as a deposit and the penalty for breaching the contract is applied can the buyer demand a double refund; if it is stated as a down payment, it is generally regarded as a prepayment and can only be refunded in full. Second, who is the breaching party? If the seller claims that the buyer failed to pay the down payment on time or failed to cooperate with the on-site signing, the seller needs to provide evidence; if the buyer claims that the seller reneged on the sale after raising the price, the buyer should submit chat records, audio recordings, etc. to prove that the seller explicitly stated that he would not sell the property. Third, the relationship between the buyer's actual losses and the deposit. The buyer can claim the price difference losses caused by the rise in housing prices, but the claim must be supported by evidence and is subject to the rules of foreseeability and mitigation of damages.

III. Professional analysis by Henglue Lawyers

Henglue Lawyers have observed that the outcome of second-hand housing sales disputes often hinges on the details of evidence. Common favorable evidence for buyers includes: a housing sales contract specifying the amount of the deposit and the liability for breach of contract; a deposit receipt or transfer record (with a note indicating the purchase deposit); WeChat records or call recordings showing that the seller explicitly stated they no longer wanted to sell or intended to raise the price; and communication records with real estate agents. Strategically, if the house has not yet been transferred to a third party, buyers can demand continued performance of the contract and assistance with the transfer process. However, if the house has been sold twice to different buyers and the third party has acquired it in good faith, buyers can only seek double refund of the deposit and compensation for the price difference. When the seller may transfer assets or sell the house to others, buyers should apply for property preservation in a timely manner. If the transaction is blocked due to issues such as unclear ownership of the house (e.g., unresolved shareholdings among spouses or parents), buyers can also seek legal recourse in combination with other evidence.Inheritance succession and family property division servicesClarify the ownership and avoid the buyer getting involved in ownership disputes.

IV. Practical Suggestions and Legal Basis

In terms of legal basis: Article 587 of the Civil Code (effective January 1, 2021) stipulates the penalty for the deposit; Article 563 lists the statutory circumstances for rescission of the contract, including delay in performance and failure to perform after being urged; Article 566 stipulates that after the contract is rescinded, the party that has not performed the obligation shall terminate the performance, and the party that has performed the obligation may request restoration of the original state or take remedial measures and have the right to claim compensation for losses; Article 577 stipulates the liability for breach of contract; Article 584 defines the scope of damages as the losses foreseeable by the breaching party at the time of concluding the contract; Article 591 stipulates the rule of mitigation, and the buyer shall take timely measures to limit losses. In addition, 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" (amended on December 29, 2020) provides detailed rules for the seller's breach of contract and rescission of the contract, which can be referenced for second-hand housing cases. Practical suggestions: Clearly define the nature and amount of the deposit and the consequences of breach of contract upon signing the contract; retain all communication records; immediately send a written notice to the seller after the seller reneges on the contract and preserve the evidence; if no agreement is reached through negotiation, sue as soon as possible to prevent the statute of limitations and the risk of the house being transferred. You can check it simultaneouslyBusiness and contract dispute resolution services for enterprisesUnderstand the remedies for breach of contract.

5. Henglu Law Firm's Reminder

When dealing with deposit disputes, it's crucial not to delay. During the period of rising house prices, sellers often renege on the deal and quickly sell the property or set up mortgages. For buyers, every day of delay increases the risk of the property being transferred and making enforcement more difficult. Henglu Law Firm advises: When making payments, it's necessary to specify the nature of the deposit; after the seller sends out a signal of not selling the property, immediately urge the seller in writing or in a traceable manner and fix the evidence; evaluate the two paths of continuing the transfer and returning the double deposit plus the price difference, and choose the most favorable option based on the current status of the property; if there are flaws in the ownership of the property involving joint ownership or inheritance, it's necessary to clarify them in advance. The pace of handling such cases is crucial. It is recommended to consult professional lawyers about evidence and strategies as soon as possible, and you can start with the following steps:Beijing Henglu Law FirmUnderstand the key points of remedies for breaches of real estate transactions.

VI. Frequently Asked Questions

Q1: After paying the deposit for a second-hand house, the seller changed his mind and decided not to sell it. Can I still get the deposit back?

Yes, and the buyer can usually claim double repayment. The deposit has a guarantee nature. According to Article 587 of the Civil Code, if the seller who receives the deposit fails to fulfill the contractual obligations and causes the transaction purpose to fail, the buyer has the right to require the seller to return the deposit double. If the buyer has paid a deposit of 50,000 yuan and the seller breaches the contract and refuses to sell, the buyer can either demand the return of 100,000 yuan, or, if the actual loss is higher, choose to rescind the contract and claim compensation. However, the deposit and the part exceeding the actual loss cannot be recovered twice. In practice, the buyer should first urge the seller in writing to continue to perform the contract, keep the evidence of the seller's explicit refusal, and then decide whether to sue for double repayment or continue to perform the contract and claim compensation. If necessary, the buyer can also understand the situation at the same time.Creditor-debtor relations and enforcement case servicesThe path of property preservation in China.

Q2: What's the difference between a deposit and a booking fee? Which one did I pay?

The legal consequences of the two are completely different. The deposit is a guarantee of the debt, subject to the penalty clause of the deposit in Article 587 of the Civil Code. If the payer breaches the contract, he has no right to return the deposit; if the recipient breaches the contract, he shall return double the amount. The down payment, earnest money, and security deposit are generally only regarded as advance payments or performance guarantees, and the double penalty clause does not apply. In the event of a breach of contract, the principal amount will generally be refunded. To determine which type of payment it is, check the receipt and contract wording: if it is clearly stated as a deposit and a penalty clause is agreed upon, it shall be treated as a deposit; if it is written as a down payment or the meaning of the guarantee is not specified, it can usually only request the return of the principal. It is recommended to insist on indicating the word "deposit" on the payment certificate and retain the transfer notes and the original contract to avoid the seller later claiming it as a down payment and refunding less than the principal amount.

Q3: The seller said that if the house price rises, they'd rather forfeit the deposit than sell it. Can I insist on a mandatory transfer of ownership?

It depends on whether the seller can still fulfill the contract. If the house is still registered under the seller's name and has not been sold to another party or mortgaged to a bona fide third party, the buyer can request the seller to assist in completing the transfer of ownership in accordance with Articles 577 and 580 of the Civil Code. The court will generally support the forced transfer of ownership, and the deposit can be offset against the purchase price at this time. However, if the seller has already transferred the house to a bona fide third party, or the house has been sealed up and is objectively unable to be transferred, the buyer can only request the rescission of the contract, the return of the deposit in double and compensation for the loss of the price difference, and cannot force the transfer of ownership. It is recommended to send a letter and check the registration status of the house as soon as you find that the seller has changed his mind, and apply for preservation measures when necessary to prevent the house from being transferred and leading to the failure of contract performance.

Q4: To sue for a double refund of the deposit, what evidence do I need to prepare?

There are five categories of core evidence: 1. A housing sales contract or subscription agreement, which proves that both parties have reached an agreement on the sale and deposit and the breach of contract clauses. 2. Evidence of deposit payment, such as receipts, bank transfer records, or WeChat/Alipay payment records, preferably with a note indicating "deposit". 3. Evidence of the seller's breach of contract, such as chat records, audio recordings, or intermediary testimonies showing the seller's clear refusal to sell, price hikes, or reselling the property to others. 4. Records of reminders and negotiations, proving that the buyer has requested continued performance and fulfilled their mitigation obligations. 5. Information from the housing registration inquiry, confirming the property's status and whether it has been resold. The evidence should form a closed loop that reconstructs the complete timeline of paying the deposit, the seller's reneging, reminders, and refusal to perform. Submitting an application for property preservation at the time of suing will better ensure enforcement.

Q5: Can I claim both the double refund of the deposit and compensation for the loss of the increase in housing prices at the same time?

It's not possible to simply claim both the full amount of the deposit and the penalty. The deposit penalty itself has both punitive and compensatory attributes. According to Article 588 of the Civil Code, if the deposit is insufficient to compensate for the losses caused by a party's breach of contract, the other party may request compensation for the losses exceeding the deposit, but the total of the deposit and the damages should not exceed the actual losses and cannot result in double profits. In other words: if the deposit (the excess part of the double refund) has already covered your loss of the price increase, you cannot demand additional compensation for the price difference; if the price difference far exceeds the amount of the deposit, you can claim compensation for the excess part in addition to the double refund of the deposit, and the compensation shall be limited to the losses foreseeable at the time of contract conclusion. To prove the loss of the price increase, you need to provide the transaction prices of the same community and appraisal opinions, etc. The court will determine the compensation based on the degree of contract performance and the buyer's mitigation of losses.

This article is written based on the common judicial interpretations in the Beijing area. If the case occurs in other regions, it is recommended to consult local lawyers to verify the regional differences.

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