王晓杰律师|商品房买卖中“团购费“”能不能收？

「前言」Preface

在一手房买卖过程中，尤其是商住房的买卖中，越来越多的中介公司打着支付“团购费”、“服务费”、“信息费”等名义费用（以下并称为“团购费”），可以打折、抵扣高数额的房款，比如付5万可以在房屋总款中抵扣8万。但实际即使不缴纳团购费，也可以享有“打折后”的低房价。因此，越来越多的购房者发现自己上当受骗了，于是找到中介公司要求退还“团购费”。那么在实务当中，对于此类团购费到底是怎么处理的呢？

In the process of buying and selling first-hand houses, especially in the sale of commercial housing, more and more AGENCIES pay nominal fees such as "group purchasing fee", "service fee" and "information fee" (hereinafter referred to as "group purchasing fee"). You can discount and deduct a high amount of house payments, such as paying 50,000 against 80,000 in the total amount of housing. But in fact, even if you do not pay the group purchasing fee, you can still enjoy the low house price "after discount". As a result, more and more property buyers find that they have been deceived, so they go to AGENCIESto ask for a refund of the "group purchasing fee". So in practice, how to deal with this kind of group purchasing fee in the end?

一、中介公司收取“团购费”是违规的。

Firstly, it is illegal forAGENCIES to charge "group purchasing fees".

首先，根据《住房城乡建设部关于进一步规范房地产开发企业经营行为维护房地产市场秩序的通知》的规定房地产开发企业不得进行例如：商品房销售不予明码标价，在标价之外加价出售房屋或者收取未标明的费用或以捆绑搭售或者附加条件等限定方式，迫使购房人接受商品或者服务价格等不正当经营行为。同时根据国务院《价格违法行为行政处罚规定》超出政府指导价浮动幅度制定价格或高于政府定价制定价格的，将会被责令改正，没收违法所得，并处违法所得5倍以下的罚款。

First of all, according to the REGULATIONS of the Ministry of Housing, Urban and Rural Construction on further standardizing the business behavior of real estate development enterprises and maintaining the order of the real estate market, real estate development enterprises shall not carry out, for example, the sale of commercial housing is not clearly marked, the house is sold in addition to the marked price, or the unmarked fee is charged, or bundled with a package or with additional conditions, Forcing property buyers to accept improper business practices such as the price of goods or services. At the same time, according to the State Council's regulations on Administrative punishment for Price violations, if the price is set beyond the floating range of the price guided by the government or higher than the price set by the government, it will be ordered to correct, the illegal income will be confiscated, and a fine of less than 5 times the illegal income will be imposed.

其次，根据《商品房销售管理办法》第二十八规定，“受托房地产中介服务机构在代理销售商品房时不得收取佣金以外的其他费用。”

Secondly, according to the 28th provisions of the measures for the Administration of Commercial Housing sales, "entrusted real estate agencies shall not charge fees other than commission when acting as agents for the sale of commercial housing."

综上，中介公司向购房者收取“团购费”，涉嫌变相乱收费，是违规行为。那么司法实践中，法院对于这种违规“团购费”会不会支持退还呢？

To sum up, SUCH AS THESE AGENCIES collect "group purchasing fees" from property buyers, suspected of charging indiscriminately in disguise, which is an illegal act. So in judicial practice, will the court support the refund of such illegal "group purchasing fees"?

二、司法实践口径。Ⅱ. The SPECIFICATIONS of judicial practice.

案例一：（2018）沪01民终5349号。

案例主旨：双方已签字确认“团购费”的约定，则不予支持确认团购费无效且请求返还的要求。如有违规属于行政管理的范畴，不影响买卖双方对于商品房买卖合同的效力及合同的履行。

Case 1: (2018) No. 5349, Shanghai 01 Civil Final. 

GIST of the case: if both parties have signed and confirmed the agreement on "group purchasing fee", they will not support the request to confirm that the group purchasing fee is invalid and request a refund. If any violation falls within the scope of administrative management, it would not affect the effectiveness of the contract for the sale and sale of commercial housing and the performance of the contract.

该案判决书原文中提到：“在购房优惠告知书中对优惠方式及收取优惠服务费作为对价进行了明确约定，约定内容不存在疑义，上诉人的立约行为表明其自愿支付对价以享受购房价格优惠，结合上诉人在先签订的定金合同及在后签订的《上海市商品房预售合同》，上诉人确已享受约定的折扣优惠。至于被上诉人保利建憬公司存在对外销售价格高于其在相关行政部门的备案价格的情况，属于行政管理范畴，受相关管理性规范调整，且结合商品房本身的特点及备案制度的相关规定，该行为并不足以对上诉人选择向被上诉人保利投资公司支付对价以享受购房价格优惠产生误导。综上所述，上诉人的上诉请求不能成立，应予驳回；一审判决认定事实清楚，适用法律正确，应予维持。”

The original content of the judgment of the case mentioned: "in the notice of preferential purchase, there is a clear agreement on the preferential mode and the collection of preferential service fee as consideration, and there is no doubt about the content of the agreement." The contract of the appellant shows that he is willing to pay the consideration in order to enjoy the discount of the house purchasing fee, combined with the deposit contract signed by the appellant and the "Shanghai commercial housing pre-sale contract" signed later, the appellant has indeed enjoyed the agreed discount. As for the circumstances that the appellee Poly Jianjing Company's external sales price is higher than its record price in the relevant administrative departments, it belongs to the category of administrative management and is adjusted by relevant management standards. and combined with the characteristics of commercial housing and the relevant provisions of the filing system, this behavior is not enough to mislead the appellant's choice to pay consideration to the appellee Poly Investment Company in order to enjoy the preferential purchase fee. To sum up, the appellant's appeal request WOULD NOT BE UPHELD and should be rejected; the judgment of first instance finds the facts clearly, the applicable law is correct, and should be upheld. "

从该案判决中，我们可以看出法院的态度，房屋买卖系重大交易，买方在决定购买房屋前就房屋价格势必会进行充分的考量，在签约过程中，如果涉及到“服务费”、“团购费”等形式的其他费用，且经买方签字确认并在合同履行过程当中得到了优惠折扣、实际应付价款的抵扣等内容的，那么要求确认团购费无效且请求返还的，法院不予支持。此外，房地产开发商的公示价格与买家之间的实际成交价不一致的，开发商标准价虽然超过备案价，但这是行政管理的范畴，受相关管理性规范调整，不影响买卖双方对于商品房买卖合同的效力及合同的履行。

From the judgment of the case, WE COULD see the attitude of the court that the house DEAL is a major transaction, and the buyer is bound to fully consider the house price before deciding to buy the house. In the process of signing the contract, if other expenses in the form of "service fee" and "group purchasing fee" are involved, and have been confirmed by the buyer's signature and received preferential discounts and deductions for the actual price payable in the course of the performance of the contract, Then the court will not support the request to confirm that the group purchasing fee is invalid and the request for refund. In addition, if the publicized price of the real estate developer is inconsistent with the actual transaction price between the buyer, although the developer's standard price exceeds the record price, it is within the scope of administrative management and is adjusted by relevant administrative norms, it does not affect the effectiveness and performance of the contract for the sale and sale of commercial housing between buyers and sellers.

案例二：（2019）沪02民终111号

案例主旨：中介公司实际上提供了推广、团购服务且购房者在签订房屋买卖合同时享受到团购优惠价，表示接受中介公司提供的团购服务，则购房者无权要求中介公司退还团购费。

Case 2: (2019) Shanghai 02 CIVIL FINAL No. 111, 

Gist of the case: the AGENCIES actually provides promotion and group purchasing services, and the buyers enjoy the group purchase preferential price when signing the house sale contract, indicating that they accept the group purchasing service provided by the AGENCIES, then the buyer has no right to ask the intermediary company to refund the group purchasing fee.

判决书原文提到：“法院认为，根据法律规定，不当得利是指没有合法根据取得不当利益，造成他人损失的，应当将取得的不当得利返还受损失的人。而昌茂公司收取马建中的12万元是基于昌茂公司提供了服务收取的团购服务费，虽马建中、昌茂公司之间无书面合同约定，但双方已经实际履行，马建中以不当得利要求昌茂公司予以返还，不仅有违诚信，且缺乏事实和法律依据，法院不予支持。马建中基于此要求祁华公司承担连带责任的请求亦不予支持。”

The original text of the judgment mentioned: "the court holds that, according to the law, unjust enrichment refers to those who have no legal basis to obtain improper interests and cause losses to others, and the unjust enrichment obtained shall be returned to the person who suffered the loss." The 120000 yuan charged by Changmao Company is based on the group purchasing service fee charged by Changmao Company for the services provided by Changmao Company. although there is no written contract agreement between Ma Jianzhong and Changmao Company, the two sides have actually fulfilled it. Ma Jianzhong asked Changmao Company to return it with unjust enrichment, which not only violated integrity, but also lacked factual and legal basis, and the court did not support it. Based on this, Ma Jianzhong's request for Qihua Company to assume joint and several liability will not be supported. "

从上述案例中也可以看出，法院对于以不当得利抗辩的审判思路同样是倘若中介公司实际上提供了推广、团购服务且购房者在签订房屋买卖合同时享受到团购优惠价，表示接受中介公司提供的团购服务，则购房者无权要求中介公司退还团购费。

It COULD BE CONCLUDED from the above cases that the trial idea of the court in defending unjust enrichment is that if the AGENCIES actually provides promotion and group purchasing services and the property buyers enjoy the group purchase preferential price when signing the house sale contract, if the buyer accepts the group purchasing service provided by AGENCIES, the buyer has no right to ask the AGENCIES to refund the group purchasing fee.

     案例三：（2019）粤03民终5671号及（2019）粤0803民初530号判决。 Case 3: (2019) Yue 03 CIVIL FINAL No. 5671 and (2019) Yue 0803 CIVIL FIRST INSTANCE No. 530.

笔者在检索相关案例时，发现深圳部分法院的裁判口径认为中介公司存在违规操作行为，在未得到开发商授权的情况下私自向购房者收取费用，故意隐瞒房屋真实价格，利用信息不对称的优势，获取不当利益，造成购房者损失，依法应当归还购房者支付的“团购费”。

When searching the relevant cases, the author found that some courts in Shenzhen believed that the AGENCIES had illegal operations, collecting fees from property buyers without the authorization of the developers, deliberately concealing the REAL price of houses, and taking advantage of asymmetric information to obtain improper benefits, resulting in losses for property buyers, and the "group purchaseing fee" paid by property buyers should be returned in accordance with the law.

三、部分地区行政措施 III. Administrative measures in some areas

郑州市、重庆市多地房管局均发布房地产消费警示，要求房地产开发商合规经营，同时告诫购房者理性对待楼市销售的各类“套路”。

The housing bureaus of Zhengzhou and Chongqing have issued warnings on real estate consumption, requiring real estate developers to operate in compliance, while warning buyers to treat all kinds of "routines" of property market sales rationally.

四、律师建议 IV. Lawyer's suggestion

根据前述案例可知，对于购房者交付了团购费、享受了团购费的优惠或通过优惠服务手段签署了房屋买卖合同，均应视为中介方履行了合同义务，再想要维权要求退还“团购费”就比较困难了。

According to the above-mentioned cases, for property buyers who have paid the group purchaseing fee, enjoyed the preferential group purchase fee, or signed the house sale contract through preferential service means, it should be regarded as that the AGENCIES has fulfilled its contractual obligations, and then it is more difficult to protect the rights and ask for a refund of the "group purchasing fee".

因此，笔者建议购房者在发现中介公司存在违规行为的同时就应当向当地住建部门反映举报，并且慎重决定房屋的购置与否，否则一旦双方完成服务项目并签订《商品房买卖合同》、或《服务协议》，再想撤销或者主张返还，在司法实务中实现的可能性就较小了，同时笔者呼吁各地政府部门因城施策，积极响应李克强总理在作“房住不炒”的定位，促进房地产市场平稳健康发展。

Therefore, the author suggests that property buyers should report to the local housing and construction department when they find that there are irregularities in the AGENCIES, and carefully decide whether to purchase the house or not. otherwise, once the two parties complete the service project and sign the "commercial housing sale contract" or "service agreement", and then want to cancel or advocate return, it will be less likely to be realized in judicial practice. At the same time, the author calls on local government departments to implement policies according to the city and respond positively to Premier Li Keqiang's positioning of "housing speculation", so as to promote the stable and healthy development of the real estate market.