[Direct answer]In the Beijing area, in principle, the deposit can be refunded in double. According to Article 587 of the Civil Code of the People's Republic of China (effective January 1, 2021), if the party receiving the deposit fails to perform the obligation or performs the obligation in violation of the agreement, resulting in the failure to achieve the purpose of the contract, it shall refund the deposit in double. 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 the deposit (Article 586). The buyer may also choose to require the seller to continue to perform the contract or claim the breach of contract penalty, but according to Article 588, the breach of contract penalty clause and the deposit clause can only be applied one at a time, and cannot be used concurrently.

I. Problem background and typical scenarios

The typical scenario of second-hand housing transactions is: after the buyer pays the deposit, the house price rises or a higher offer appears, and the seller reneges on the deal for reasons such as "my family doesn't agree", "I want to leave the house to my children", or simply raises the price: "If you want to buy it, pay an additional 300,000 yuan, otherwise, I'll refund your deposit." There are also sellers who sell the house to someone who offers a higher price after signing the contract and completing the transfer. At this point, the buyer often just wants to get back the deposit, but doesn't know where their legal claim lies or what the upper limit is, and ends up giving away their interests in the negotiation.

II. Key points of contention

First, is it a deposit? According to the contract, if the payment is described as a deposit and the money has actually been paid, the deposit effect will take effect. If the contract specifies "deposit", "intention deposit", or "purchase deposit" but the nature is unclear, it is usually treated as an advance payment and the double refund rule does not apply. Second, the maximum proportion. The amount of the deposit shall not exceed 20% of the subject matter of the main contract. The excess part will not produce the effect of a deposit and can only be refunded as ordinary payment. Third, whether the buyer can choose to continue performance. If the house has not been transferred to a third party, the buyer can request to continue performance and claim the liability for breach of contract due to delay in performance; if it has been transferred to a bona fide third party, performance is no longer possible and the buyer can only seek compensation. Fourth, the deposit and the breach of contract penalty cannot be used concurrently. If the contract stipulates both the breach of contract penalty and the deposit, the party in breach can only choose one to claim; if the deposit is insufficient to compensate for the actual loss, the buyer can also request compensation for the part of the loss exceeding the amount of the deposit.

III. Professional analysis by Henglue Law Firm

When handling second-hand housing breach of contract cases, Henglue Lawyers found that the most common mistake made by buyers is to only claim the return of the deposit without pursuing breach of contract liability, which is equivalent to voluntarily giving up the right to double the return of the difference. Taking a second-hand house with a total price of 5 million yuan as an example, if the deposit is 200,000 yuan, which is just within the upper limit of 20% of the subject matter of the main contract, the seller should return 400,000 yuan in double; if the agreed deposit is 500,000 yuan, the 30,000 yuan exceeding 20% does not produce the effect of the deposit, and the double return part should only be calculated according to 200,000 yuan. Another common dispute is the choice of compensation approach: during the rapid rise in housing prices, the actual loss may be much higher than the penalty for the deposit. At this time, it is more effective to compare the amount of the breach of contract clause with that of the deposit clause, evaluate the loss of expected benefits, and then choose the more advantageous one to claim. In litigation, it is also necessary to pay attention to whether the house has been disposed of elsewhere. If it has been sold to a third party, it is necessary to first determine whether it constitutes a bona fide acquisition, and then decide whether to claim for continued performance or turn to monetary compensation. For disputes involving continued performance and transfer of ownership, it can be combined with the above analysis.Real estate sales and purchase disputesFor practical experience in designing requests, if the buyer needs to claim a refund of the purchase price and seek compensation, they can refer to the following guidelines.Contract disputeThe processing path of the request.

IV. Practical suggestions and legal basis

According to the provisions of Article 584 of the Civil Code of the People's Republic of China on the scope of compensation for losses, Article 585 on the request for adjustment of excessive penalties, Article 586 on the contract for deposits and the upper limit of 20%, Article 587 on the double return of deposits, and Article 588 on the choice between penalties and deposits (all of the above provisions came into effect on January 1, 2021), it is recommended that: First, when signing the contract, it is necessary to explicitly use the term "deposit" and specify the nature of the payment, avoiding using terms such as "security deposit" or "intention deposit"; Second, the deposit should be paid through bank transfer and with a note indicating the address and purpose of the house, and the transfer receipt and invoice should be kept; Third, if the seller reneges on the contract, it is necessary to immediately send a written letter to urge continued performance, and to fix the evidence of the seller's refusal to perform; Fourth, simultaneously check the status of the house registration. If it is found that the seller has already sold the house to others, it is necessary to apply for preservation as soon as possible; Fifth, when suing, it is necessary to list the double return and compensation for losses separately in the litigation request, so as to facilitate the court's review of each item. For the recovery of funds and subsequent enforcement, reference can be made to the relevant provisions of the Civil Code of the People's Republic of China.Creditor's rights and debts, and enforcementFor cases involving large amounts of money or scattered evidence, it is recommended to handle them through legal channels.Specialised legal servicesFirst, let's conduct a preliminary assessment of the proposed route.

5. Henglue Law Firm's Advice

The down payment is a tool, not the goal. Buying the house is the buyer's true objective. Therefore, when the seller is slightly delayed but still willing to perform the contract, it is often more cost-effective to prioritize claiming continued performance and late breach penalties than directly terminating the contract and seeking compensation. Conversely, if the house has already been acquired by others or the seller clearly lacks the ability to perform the contract, it is necessary to promptly switch to claiming monetary compensation and applying for preservation measures to avoid having a judgment in hand but no property available for enforcement. Three details are worth noting: if the down payment is verbally agreed upon but not actually paid, the down payment contract will not be established; if the seller's spouse has not signed the contract but the house is jointly owned by the couple, there will be obstacles to continuing performance claims; if the intermediary collects the down payment but fails to transfer it to the seller, the payment path will affect the identification of the responsible party. Regardless of the path chosen, it is necessary to clarify the amount composition and calculation method in the litigation request. Vague expressions will directly affect the scope of support.Beijing Henglu Law FirmIt is recommended to complete the evidence fixation simultaneously during the stage of sending a letter of reminder.

VI. Frequently Asked Questions

Q1: If I claim to get a double refund of the deposit, can I win the case?

The nature of the contract is clearly a deposit, and the payment has been actually made. If the seller breaches the contract, resulting in the failure to achieve the contractual purpose, and all three conditions are met, there is a high probability of obtaining support; otherwise, the money may only be refunded as an ordinary payment or converted into damages.

Q2: What evidence do I need to prepare?

The house sale and purchase contract and supplementary agreement, the deposit receipt and bank transfer certificate, the reminder letter and delivery record, the evidence of the seller's refusal to perform or reselling the house, the results of the house registration information inquiry, and the proof of the transaction price of the same community at the same period.

Q3: How much are the attorney's fees and litigation costs, approximately?

The litigation fees shall be prepaid in stages according to the amount of the subject matter of the dispute, and the proportion to be borne by the losing party after the judgment in favor of the winning party shall be determined by the court; the attorney's fees shall be charged according to the amount of the subject matter or the stages of the case, subject to the provisions of the entrustment contract, and the fees involved in the evaluation shall be calculated separately.

Q4: How long does the process take?

The first-instance trial usually lasts three to six months, and it will be shorter if the simplified procedure is applied; if it involves house evaluation, adding a third party, or objections to preservation, the time will be extended accordingly. After the judgment takes effect, there are still enforcement procedures that require reserved time.

Q5: What should I do first?

First, confirm the nature of the deposit and the evidence of delivery. Send a written notice to the seller demanding that they fulfill their obligations within a specified timeframe and keep the receipt. At the same time, check whether the house has been disposed of elsewhere. Based on this, determine whether to demand continued performance or switch to seeking double compensation and damages for losses.

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

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

Disclaimer: This article is compiled based on the current effective laws and regulations and open 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 the event of a dispute, please consult a practicing lawyer in a timely manner.