[Direct answer]In the Beijing area, if the seller of a second-hand house breaches the contract, the buyer can demand compensation. According to Articles 577, 584, and 585 of the Civil Code of the People's Republic of China, if the seller fails to fulfill the obligations of transferring ownership or delivering the house, they shall bear contractual liabilities such as continuing to perform the contract, taking remedial measures, or compensating for losses; the compensation for losses includes the difference in the price of the house, the interest on the paid housing price, reasonable agency fees, and other foreseeable losses. If there is a contractual penalty, it shall be paid in accordance with the agreement and may be requested to be adjusted. It is recommended to first send a letter of reminder to fix the contract, payment, and communication evidence, and if no agreement can be reached, promptly file a lawsuit. For reference, please refer to the relevant provisions of the Civil Code of the People's Republic of China.Legal services for real estate transactions and construction projectsEvaluate the plan.

1. Problem background and typical scenarios

In second-hand housing transactions, it is common for sellers to back out due to rising housing prices, selling to others, or funding issues, which often lead to disputes. Typical scenarios include: signing a contract and collecting a deposit but delaying the transfer of ownership; raising the price and refusing to sell unless the buyer agrees to pay more; selling the same house to a third party; and refusing to fulfill the contract on the grounds that the spouse does not agree or that the house is subject to a mortgage that has not been cleared. Buyers often have already paid a deposit, a down payment, or even repaid part of the mortgage, and are at risk of losing both the money and the house. The core of such disputes lies in the determination of breach of contract liability and the calculation of losses, which involve multiple rules related to contract performance, changes in property rights, and remedies for breach of contract. It is recommended to organize the evidence chain as soon as possible. The recovery of relevant funds can be combined withCreditor-debtor relations and enforcement case servicesCoordinate and plan everything in an organized and efficient manner to ensure that all tasks are completed on schedule and without any errors.

II. Key points of contention

The key factors determining the outcome of such cases focus on three aspects. Firstly, the determination of the facts of breach of contract: whether the seller explicitly refuses to perform the contract, fails to cooperate with the transfer of ownership within the prescribed time limit, or commits a fundamental breach of contract, which needs to be proven by the contract and communication records. Secondly, the choice of remedies: when the house has not been acquired by a bona fide purchaser, it is appropriate to claim for the performance of the contract; if the house has been sold to another party, the only remedy available is to seek damages, and the two cannot be combined. Thirdly, the calculation of the amount of losses: the difference in the price of the house, the interest on the paid purchase price, the agency fees, and the priority of the breach of contract penalty, as well as whether the agreed breach of contract penalty is too high or too low and needs to be adjusted. For cases involving the intersections of borrowing a name and holding on behalf of others, reference can be made to relevant provisions.Inheritance and family property division servicesClarify the ownership rights.

III. Professional analysis by Henglue Law Firm

When handling real estate sales breach of contract cases, Henglue Law Firm emphasizes identifying breaches of contract and quantifying losses based on contracts and performance milestones. In a case involving a developer's breach of contract for delayed delivery, owner Zhang Quan signed a "Beijing Commercial Housing Pre-sale Contract" with Beijing A Real Estate Company to purchase Unit 302 at a total price of over 6.84 million yuan. The contract stipulated that delivery should be completed by June 15, 2023, with a 90-day grace period and a daily default penalty of 0.01% of the total price. However, A Company failed to deliver until March 5, 2024, nearly nine months after the deadline. Attorney Tian Jiaoyan represented the plaintiff and argued that the developer's defense of force majeure due to the pandemic was unfounded, noting that the contract was signed in 2021 and the pandemic had become a normal situation that could have been foreseen, thus not constituting a legal exemption. The court strictly applied the grace period and ultimately ruled that A Company should pay the full default penalty of 118,366.12 yuan and litigation fees. In another case involving the return of a storefront and refund, attorney Liu Donghua (Practice License No.: 11101199911363364, issued by the judicial administrative authority) represented the buyer and claimed to terminate the pre-sale and loan contracts on grounds of fundamental breach of contract. The court ordered the developer to return the down payment, the principal and interest of the repaid loan, the public maintenance fund, and stamp duty, and to pay default compensation, with the sole shareholder bearing joint and several liability. This case was handled by Beijing Henglue Law Firm.Tian JiayanThe 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

The core basis is Article 577 (liability for breach of contract), Article 584 (the scope of compensation for losses includes the expected benefits), and Article 585 (penalty for breach of contract and its adjustment) of the Civil Code (effective from January 1, 2021); as well as the rules on reducing the penalty for breach of contract in the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the General Provisions of the Contract Chapter of the Civil Code of the People's Republic of China (effective from December 5, 2023). Practical suggestions: When signing the contract, clarify the transfer time, breach of contract situations, and the calculation method of the penalty; immediately send a letter of reminder and keep the evidence by notarization if you find any abnormal behavior of the seller; if the house has not been sold to others, prioritize to continue the performance of the contract; if the house has been sold to others, promptly sue for compensation and apply for property preservation. For cases involving the recovery of execution payments, you can combine the above suggestions with relevant provisions of the Civil Code and the Interpretation of the Supreme People's Court.Creditor-debtor relations and enforcement case servicesAdvance.

5. Henglu Law Firm's Advice

In cases of breach of contract by the seller of second-hand houses, the most common mistakes made by buyers are delaying action and having incomplete evidence: they neither send a letter to fix the breach of contract nor sue the seller in time, resulting in the house being sold to others or the seller transferring his/her property. It is recommended that when signing the contract, the buyer should keep all the documents and payment records. If the seller reneges on the contract, the buyer should promptly urge the seller to perform the contract and consult a professional lawyer to determine whether to claim for continued performance or compensation for breach of contract. The adjustment of the housing price difference and the breach of contract penalty, as well as the timing of providing evidence, directly determine the final amount of compensation. When encountering such disputes, the buyer can refer to the following advice for reference:Special services and other case servicesObtain a targeted solution.

VI. Frequently Asked Questions

Q1: If the seller of a second-hand house breaches the contract, can the buyer claim compensation or even win the lawsuit?

Yes. A legally established sales contract is binding on both parties. If the seller refuses to transfer ownership, deliver the property, or arbitrarily increase the price without a valid reason, it constitutes a breach of contract. According to Article 577 of the Civil Code, the buyer has the right to choose to demand continued performance (if the house has not yet been transferred to a bona fide third party) or to rescind the contract and claim compensation for losses. If the seller has maliciously transferred the house to a third party, although it may be difficult for the buyer to recover the original house, the buyer can claim damages such as the difference in the house price and other losses of obtainable benefits. In practice, if the evidence is complete and the facts of the breach of contract are clear, the buyer's claims are usually supported. The key is to fix the evidence of the breach of contract in time and to assert claims within the statute of limitations.

Q2: If you claim that the seller breached the contract and demand compensation, what evidence do you need to prepare?

Prepare at least four types of evidence: 1. Sale contracts, supplementary agreements, and intermediary service contracts to prove the parties' rights and obligations and breach of contract clauses. 2. Payment receipts, deposits, down payments, and mortgage repayment records to demonstrate fulfilled obligations and the basis for calculating losses. 3. Communication records, such as WeChat messages, text messages, and audio recordings, containing the seller's refusal to transfer ownership, demands for price increases, or admissions of breach of contract. 4. Evidence of the property's current status, including real estate registration information, indications of resale, and price trends in the same area, used to calculate the price difference. The more complete the evidence, the easier it will be to determine breach of contract and losses. If necessary, you can apply for a court investigation order to retrieve the transfer and mortgage registration records to prevent evidence from being lost.

Q3: If the seller breaches the contract, what kind of compensation can the buyer generally receive?

The compensation shall be limited to the actual losses and the claimant may also claim the expected benefits. Common items include: the interest on the loan paid for the house during the same period; the difference in the price of the house caused by the rise in housing prices (the difference between the contract price and the market price at the time of breach of contract or litigation); the intermediary fees and appraisal fees paid and non-refundable; the breach of contract penalty agreed upon in accordance with the agreement, but if it is too high or too low, the claimant may request an adjustment. According to the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the General Provisions of the Contract Chapter of the Civil Code of the People's Republic of China", the agreed breach of contract penalty shall generally be based on the actual losses, and if it exceeds 30% of the losses, it may be deemed excessive. Specifically for second-hand houses, the difference in the price of the house is often the main part of the compensation, which needs to be supported by professional appraisals or the transaction prices in the same area.

Q4: How long does it usually take to resolve a lawsuit against a seller of a second-hand house for breach of contract?

The duration of the trial varies depending on the complexity of the case and the type of procedure used. For simple cases with clear facts and minimal disputes, the trial is typically completed within three months; for cases applying the ordinary procedure, it is generally completed within six months, with the possibility of extensions in exceptional circumstances. If it is necessary to assess the price difference of the house, add a third party, or handle another case, the duration will be correspondingly extended. If the other party fails to fulfill their obligations after the judgment, it is necessary to apply for enforcement, and the enforcement period will depend on the situation of the property investigation. Hiring a lawyer as early as possible and preparing all the evidence at once can help shorten the trial and enforcement periods and avoid the transfer of the house or the loss of the seller's property.

Q5: If the seller breaches the contract, what should the buyer do specifically?

In three steps: First, fix the evidence, preserve the contract, payment receipts, and all communication records. If necessary, notarize the seller's breach of contract statement or take screenshots as evidence; Second, send a written notice to the seller, requiring them to fulfill their obligations within a reasonable timeframe. Make it clear that the contract will be terminated and compensation will be sought if the deadline is not met. The notice serves both as a reminder to fulfill the obligations and as a basis for subsequent contract termination; Third, take decisive action to protect your rights. If the property has not been acquired in good faith, you can sue to require continued performance and transfer of ownership. If the property has already been sold to another party, you can sue to terminate the contract and claim compensation for the price difference, interest, and agency fees, while applying for property preservation. For complex cases, it is recommended to hire a lawyer as soon as possible to develop the optimal path for continued performance or contract termination and compensation.

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 the purchase and sale of real estate·Attorney Tian Jiayan·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on the current laws and regulations and publicly available 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.