Matters to which the Developer Shall Pay Attention When Fixing the House Involved in the Course of Proceedings
2017/2/14 13:33:50 点击率[144] 评论[0]

      As cases involving disputes over the quality of residential commodity houses will, more often than not, make the developer obliged to fix the houses involved therein in the course of proceedings, proper handling of the matters encountered during the fixing work can be highly relevant to the final judgment following the hearing. According to our experiences, the developer is expected to pay attention to the following matters:
      1.Owner's Tactics
      For the purpose of gaining the advantageous position in the lawsuit, mostly the owner may ask the developer to fix the house before suddenly filing a lawsuit, expecting that the messy work site will leave a bad impression on the judge as a way to obtain a judgment in his favor.
      2.Fixing in the course of proceedings
      The developer shall do whatever it can to request the judge to specify in the transcript of hearing that the fixing work of the house involved in the case shall be started in the course of proceedings so as to realize the following objectives:
      (1)To avoid increasing the losses and mitigate the compensation liability of the developer
      Some quality problems may affect the proper residence of the owner, while some others may have been detected prior to the occupancy of the owner who, therefore, left the house vacant thereafter. In this sense, to restore the house to its normal using standard by fixing it as soon as possible can avoid increasing the losses. Particularly, in those cases that can constitute the delay of house delivery, the compensation liability of the developer can be largely mitigated.
      (2)To reduce the pressure on the judge and lower the lawsuit risk
      If the house involved in legal cases has been in a situation that it can not be normally used for long, the judge thereof will assume great pressure. It is particularly true when it comes to series cases. In this connection, the possibility of the judge making the judgment in favor of the owner is higher. Hence, the developer can strive to be in an advantageous position in the course of proceedings and reduce the compensation amount by fixing the house as soon as possible.
      (3)To correct the preliminary determination on evidence of the judge
      The owner may usually tend to exaggerate the losses incurred by the quality problems, while the determination on the relevant evidence is largely based on the judge's discretion. Therefore, where the developer can get the house involved in the case fixed within a short period of time, or the developer can even prove that the quality problems do not exist at all in terms of engineering standard, the judge's confidence in the evidence provided by the owner will be affected, and the judge may be inclined to make the determination on the evidence in favor of the developer.
      What are the specific matters the developer shall pay attention to during the fixing work then?
      (1)Preparation for the fixing
      If the owner has not used the house involved in the case, the developer may opt for obtaining the key of the house for the convenience of the fixing work, and on the other hand for avoiding the sudden abruption by the owner who may file a lawsuit thereafter on the other. However, if the house has been occupied by the owner, it is highly recommended that the developer may not hold the key so as to avoid the disputes over the damage of the articles in the house.
      Besides, the developer should request the owner to clear the site of fixing work, e.g. when fixing the water leakage in a certain room, even if the work can be done without removing the furniture therein, the developer should also make such request to avoid any disputes over the damage of the articles. If the owner insists in not doing so, or is objectively unable to do so, all the articles that cannot be removed should be sealed, and the fixing work shall be done in the presence of the three parties, namely the developer, the owner and the property service agent. Please bear in mind that as both parties have commenced the lawsuit, it is possible that any undesirable things might happen at any time.
      (2)To record the process and result of the fixing work in detail so as to keep relevant evidence thereof
      First, the developer shall ask the property service agent to be present at the site of fixing work. Secondly, the developer shall record in writing such specifics as the starting time, ending time, work contents and quantity, reasons for the failure of the fixing work delivery etc. on each occasion of the fixing work. The developer shall also take photos of the fixing work site, and request the owner to sign on the said record for confirmation. If the owner refuses to sign on it, the developer shall ask the property service agent to do so.
      (3)To strictly follow the requirement set forth in the transcript of hearing when delivering the fixing work and do not act beyond the scope of the fixing work without careful consideration
      Generally the judge will detail the contents of the fixing work in the transcript of hearing, but more often than not, the owner will require the developer to fix other items beyond the scope specified in the transcript of hearing. For instance, although in the transcript the judge may require the developer to fix the upper hose to address the quality problem of water supply, yet the owner may require the developer to dig out the sewer pipe for check. Under such circumstance, the developer shall ask the owner to make the requirement in writing specifying that if the quality problem of water supply does not result from the malfunction of the sewer pipe, the fee relating to the digging out work shall be covered by the owner who may also choose to make the payment of the said fee by deduction from compensation amount.
      (4)To avoid detection of new problems
      In a certain legal case we have dealt with, according to the transcript of hearing, the developer was required to fix the upper hose in the basement, but upon the said hose having been dug out, the worker dug further under the requirement of the owner. The result is that a large amount of construction debris were dug out, based on which the owner believed that the overall quality of the house was doubtful, and made other requirements thereafter. Therefore, the above circumstance seriously affected the judge' s impression of the developer.
      3.Handling procedure and the role of customer service agent
      Upon receiving complaints for quality from the customer, the customer service agent may not handle it in a hurry. Instead, the agent shall inquire the case in detail and report to the company management as soon as possible. The engineering, legal and customer service personnel then shall meeting to find out the facts and the cause of the case and work for a solution plan. Finally, the said personnel altogether shall initiate consultation with the owner for solution.
      Prior to the dispute, the role that the customer service agent has to play is service provider for the owner. Upon the occurrence of the dispute, however, the role of the agent, instead of being the service provider, will be the developer's agent who may negotiate the solution with the owner. In this sense, the agent shall pay his/her attention to the following instructions:
      (1)To promptly report the complaint from the owner to the company management rather than solve the problem on his/her own part;
      (2)To be polite when dealing with the owner prior to or during the lawsuit and to refrain from arguing, particularly from disputing with the owner in an effort to avoid intensifying the conflict even leaving any unfavorable evidence;
      (3)To strictly follow the requirement set forth in the transcript of hearing rather than follow whatever instruction from the owner.
      It represents a systematic program to solve the disputes over the quality of residential commodity houses, and fixing service delivery in the proceedings constitutes a crucial part thereof. To that end, different functionaries of the developer are expected to work in coordination and make conscious efforts to act pursuant to the relevant procedures. Only by doing so can the developer expects a promising result of the case in its favor.

    邓永泉,律师,大成律师事务所高级合伙人、北京仲裁委员会仲裁员、中欧仲裁委员会仲裁员,《商法》(China Business Law Journal)“法律精英100强”(China's Top100 Lawyers)。