The retroactive application of tax social security cannot be transferred, and the buyer may not constitute a breach of contract
In order to make up for the loophole of the "purchase restriction order", on March 3, 2010, the Shenzhen Municipal Planning and Land Commission once again issued the detailed rules of the "purchase restriction order", stipulating that "for non-resident households in the city to provide proof of tax payment when purchasing a house, they must meet the conditions of the latest continuous payment for more than 12 consecutive months without supplementary payment; For those who provide proof of social security payment, one of the following conditions must be met: first, the most recent payment of pension insurance and medical insurance for more than 12 consecutive months, second, the recent payment of pension insurance and work-related injury insurance for more than 12 consecutive months, and third, the recent payment of medical insurance and work-related injury insurance for more than 12 consecutive months.
The sudden introduction of the provisions has led to a large number of "three noes" who are trading through the reissue of tax certificates or single social security to buy a house frustrated, some buyers have not only paid the deposit, but also supervised the down payment, and even obtained the bank's mortgage commitment, some owners have also entrusted the guarantee company to complete the redemption, the sudden suspension of the transaction not only makes the buyer and seller into disputes, but also may be held liable for breach of contract by the guarantee company.
Recently, many buyers have called to inquire whether the transfer can not constitute a breach of contract, whether the deposit can be recovered, the author believes that the suspension of the tax payment and the transfer of a single social security resulting in the transaction can not be carried out, whether the buyer constitutes a breach of contract should be treated differently:
Scenario 1: If the two parties have clearly agreed on this at the time of signing the contract, the agreement shall prevail.
Some "three-no" personnel with a high sense of risk will remark in the contract when signing the contract, stipulating that "the seller agrees and understands that the buyer is actively handling the social security information about the loan, and agrees that the contract will take effect after the buyer handles the relevant information of social security" or "if the buyer is still unable to obtain a bank loan or complete the transfer procedures due to the buyer's re-issuance of tax certificate or social security, the buyer has the right to terminate the contract without being liable for breach of contract to the seller", so that the buyer does not constitute a breach of contract and cannot transfer the property, the seller shall return the buyer's purchase deposit. If the losses are caused to all parties, they shall bear their respective responsibilities (generally there will be no agreement that the buyer will still be liable for breach of contract if the tax payment is made up or the social security is invalid). The lawyer ** the buyer responded to the property owner to sue for claim 127In the case of a huge amount of liquidated damages of 80,000 yuan, it was decided that the seller not only had no right to pay liquidated damages, but also had to return the buyer's deposit for the purchase of the house because there was an agreement in the contract.
In this case, the subordinate parties conspire to support the buyer to make up the false tax payment or social security to circumvent the "purchase restriction order", and the house sale contract is in fact conditional on the buyer's ability to make up the tax payment or social security transfer, resulting in the inability to transfer the property, all parties are at fault, and neither party constitutes a breach of contract with each other, and the losses are also borne by each other.
Situation 3: There is no special agreement in the contract, but the buyer conceals the identity of the "three nos" who do not meet the conditions for purchasing a house or taking out a loan when signing the contract.
In this case, if the seller is a bona fide party without fault, and the buyer clearly knows that he is not qualified to purchase a house but still signs a contract with him, and tries to evade the purchase restriction order by making up false tax payment or social security, which ultimately leads to the inability to transfer the ownership, the buyer constitutes a breach of contract and shall bear the liability for breach of contract to the seller in accordance with the contract.