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fammira

Barker

Joined: Mar 20, 2006
Posts: 156

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Posted: May 13, 2009 - 03:21 PM
Post subject: Rental deposit

I am living and working in Shanghai.

Since I often need to go to Beijing, I thought to rent a small apartment there.
Last weekend an agent showed me a nice small flat, we dicussed the price and finally agreed on it.

Talking to the landlord on the phone, she did not seem very happy to lend it to a foreigner, she started to ask a lot of question about me and finally agreed to meet me next weekend since she was out of Beijing in those days.
I replied I could understand, and that I also prefered to meet her first.

We agreed to meet first and in case of mutual approval fix the contract the next Monday. The agent rightly insisted with the landlord that I pay one month as a deposit in order to keep the flat for me and not show it to others.

I was not very surprised today to hear the agent telling me that the landlord does not want to rent the flat anymore, the agent said she will give me the deposit back but I wonder if I have the right to ask more for the time I have lost....don't know about China but I don't think is different than how it would have been elsewhere, where landlord would be supposed to indemnify by twice the amount paied.

Hope someone can give me an advice here

Thank you!

monalisalee

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Posted: May 13, 2009 - 03:48 PM

Adrienne should know the legal on this. Interesting one. If you have a Fapio for your deposit, and you should, my guess is it is a legal commitment, similar to a deposit on a contract, and therefore you should get your holding deposit back PLUS damage. Whether that is an extra one month, or a trip to Beijing you had to make, dont know.
But in any case, could be very difficult to get blood out of a stone. With Fapio you should at least get your deposit back.

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johnboy88

MrPuxi

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Posted: May 13, 2009 - 03:53 PM

i do not think you have the right to compenation, after all there is no legal basis for that.

there was at that time no contract which may have been grounds fro such compensation claim. the law in any case does not foresee compensation as you did not suffer (measureable) damages which you may possibly be enntitled to claim and liquidate.

the money you paid was for the agent/landlord not to show the place to others and does not even have an underlying contract really to govern wrongdoing or breach. if the landlord now does not want to rent to you, that's a different thing and has no causality. again, here is no breach of the agreement (deposit = no show to others), at least nothing you could actually prove. at that moment you did (as far as i understand) not have a valid rental agreement. you also will not be able to claim that the landlord/agent knew before that you would in the end not be able to rent the place. that is called "culpa in contrahendum". you will not be able to prove that thing.

the thing with the 2 months rent compensation upon breach, is a contractual matter. it usually is put into contracts, but it is NO LAW. thus, no contract, no use.

therefore, in a nutshell, forget it. no use, no chance. and also, no damage.

Last edited by MrPuxi on May 13, 2009 - 04:02 PM; edited 1 time in total

nestor

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Posted: May 13, 2009 - 03:57 PM

Yes, landlord is supposed to indemnify you by twice the amount paid.
But as what mona said, but the landlord and/or the agent may be dishonest, and won't indemnify you for your loss.

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nestor

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Posted: May 13, 2009 - 04:03 PM

First, there may be no law on this issue, but as all we (Chinese) know, there is a well-known rule on deposit, no matter rental or other things.

Second, probably it was just a pretense that the landlord did not want to rent the flat anymore, but he/she just regret to rent to a foreigner.

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tomnoddy_uk
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Posted: May 13, 2009 - 04:09 PM

i've heard much the same as what nestor said, but if you don't have anything on paper you're pretty much screwed i think.

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fammira

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Posted: May 13, 2009 - 04:22 PM

for sure I have the paper that testifies the deposit that I have paied

I do not care what is the reason for the landlord does not want or can't rent the flat anymore.
For sure I have had a damage out of that in terms of time and money, even if at that moment we did not reach any verbal or written agreement about the rental

if we had it, we would not have gone into this matter, isn't it?

I will have no problem into having my deposit back from the agent, but I think I have the right to be indemnified from the landlord (or from the agent?) for the time I have lost and the time I will lose

not sure there's such a law in China that protects customers in such circumstances

MrPuxi

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Posted: May 13, 2009 - 04:38 PM

you have a receipt, nothing else.

this piece of paper says "i received so-and-so much money" nothing else. it does not represent a contract. it implicates that there is some kind of agreement about something, otherwise you probably would not pay that money. legally yes, that may be deemed as a contract. but the nature of this "contract" was actually the "show nobody else" thing. it did not exclude the possibility of the landlord changing his mind, i.e. not renting to you.

but this contract does not find articulation in written form, e.g. a few pages written text, it is in lack of such goverened SOLELY by the applicable law.

the actual and pretty much only probelm THAT TEHRE IS NO FORMAL AND ARTICULATED CONTRACT. you can obviously put in all kinds of things into a contract, e.g. 2 months compensation and what-have-not. but that is not what the law says at all. and, as summarized above, due to the lack of a written and formal contract here, this whole "situation" can only be governed and ruled by the applicable laws of this great country.

good luck claiming on this basis.

fammira

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Posted: May 13, 2009 - 04:59 PM

MrPuxi wrote:

thanks

so do you mean that chinese law does not allow me to be indemnified in case the other part changes his mind?

nestor

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Posted: May 13, 2009 - 05:24 PM

I am considering that you will not get your compensation. According to my experience, landlord and agent have contract, and both of them have came to agreement that landlord won't indemnify you, and then agent inform you that landlord do not want to rent anymore.

For the sake of the change, most of us in China will declare that double payment should be indemnified in the receipt if anything changes. But, if there is no such declaration on the receipt, you can only get your deposit back, unless the guy who should indemnify is honest.

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Michael

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Posted: May 13, 2009 - 05:30 PM

Consider yourself extremely lucky if you get the full deposit back. If I were you I get the deposit back and would move on. Making a legal issue out of something for which there is no written agreement will just be banging your head against a wall, regardless of who is right or wrong.

Last edited by Michael on May 13, 2009 - 05:34 PM; edited 1 time in total

MrPuxi

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Posted: May 13, 2009 - 05:31 PM

the point is, you will have no chance to get something even close to what you may expect. one big problem is the definition of damages. because that is what you may be indemnified for.

few years back, there was a courtcase about a worker who was killed due to negligence of the employer. the widow sued for damages she would suffer IN THE FUTURE becasue her hubby was no longer able to provide for her. she was right, the court ruled. she was awarded a total of about RMB 36.000 being the damage she would suffer in the future for not geeting her hubby's slaray. her husband was about 30.

so, that means a (future) lifetime of work in china amounts to about RMB 36.000. for some odd reason (china??) the calculation was not based on the hubby's monthly salary multiplied by expected work-life-time. don't ask...

this was a ruling based on exisiting and prevailing law. now, you do the math: how much do you think you will get out of this, especially considering the lack of a formal contract (i elaborated above). now, think about how much effort you have to go through in order to possibly be considered for indemnification.

still interested? PM me, i will take your case.

nestor

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Posted: May 13, 2009 - 05:37 PM

Ah, MrPuxi, you are a lawyer? No wonder you are so serious about this.
But I bet Fammira will not like to waste more time on this issue. Smile

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monalisalee

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Posted: May 13, 2009 - 05:57 PM

For reasonable people in a reasonable country, you may get compensation.

But where are we?

Sure, would't be giving MrPuxi any.

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johnboy88

fammira

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Posted: May 13, 2009 - 06:09 PM

thanks to all for the replies and suggestions!

I have a receipt that allows me to have my deposit back, my question was whether there was any chance to be refunded for the damage, the time and the energies I have lost and will lose because of this

I know it will be a further waste of time and energy to go for such a compensation, especially in China, so I will take my deposit and will look for another flat somewhere else.

Hope this can be useful to other people in the future Wink

Adrienne

FooJay

Joined: Mar 01, 2003
Posts: 1708
Location: Shanghai, China
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Posted: May 13, 2009 - 06:25 PM
Post subject: Re: Rental deposit

Yes, the folks above are correct in what they are saying, especially about how fortunate you are to even get the deposit back.

Given that you have been working in China I am really intrigued by your comment.....

[quote="fammira"]....don't know about China but I don't think is different than how it would have been elsewhere!(/quote]

Have you not noticed anything different during your time here? Rolling Eyes

Adrienne

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yu888
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Posted: May 13, 2009 - 06:29 PM

^ Ok here is the deal, even in a developed country, the receipt would have to state that it was a deposit was related to a letter of intent signed by both parties.

I this case, I beleive your agent was in fact working FOR you when s/he asked you for a deposit and even issued a receipt saying that the agency received the deposit. S/He probably did so to help convince the landlord to rent it to you, even bringing a deposit and yet the landlord decided it would be too much a headache to deal with pesky laowai requests and expectations, not to mention the communications hassle, and opted out. Entirely their right to do so, again, UNLESS you have a signed agreement.

Sorry but I will have to agree with Michael that you are actually lucky the deposit didnt just get gobbled up with no papertrail and is instead coming back to you. Yes, time is costly to us, but for teh society at learge, they dont really have that concept yet and so th einefficiencies will remain for quite some time.

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Reggin

StreetBeater

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Posted: May 13, 2009 - 06:31 PM

Michael wrote:

Exactly, shit happens all the time, especially here.

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MrPuxi

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Posted: May 13, 2009 - 07:51 PM

^^ true, unfortunaetly...

you should be lucky that you were not scre**d for your complete deposit. sorry to say, but that would have been the typical china-shite, pretty much everybody has to deal with all the time... even though then you would have been right (and the law on your side Wink

, still you probably would have had a hard time to see a single fen.

fammira

Barker

Joined: Mar 20, 2006
Posts: 156

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Posted: May 14, 2009 - 12:02 AM

I don't know why you all say I am lucky to have my deposit back
We clearly agreed when I gave it to the agent that in case the landlord would have changed her mind, the agent would have given the deposit back to me, and so she did with many apologies for the unconveniences caused.

Different would have been the case if it was me the part coming into any change of mind or impossibility...in that case I would not even asked for any money since it was all on my side.

To Adrienne, I have been here for 4 years and my chinese is fluent.
My question was if consumers are protected by the law in China as usually happens in western legal systems.
Before facing a topic that I don't know in details I thought it would have made sense to ask people that know much more than me about it Wink

I am aware that in China everything passes through discussion and endless adjustment, but common sense is the same everywhere and I think that even with all the evident differences you can see here, you would agree with me on this point.

For sure I can't proove the reasons the landlord does not want to rent to me anymore only one week after the agreement (while she did not disagree to take the deposit indeed) but I saw enough mess in this country to think about a real change of needs (she said a relative now needs the flat...yeah maybe..)
Anyway this is not important.
The point is that her behaviour was far from being clear and honest, cause after all you read I never came to meet the landlord even if I asked for a meeting at least three times.
Sure, the agent is there to make his job, and I can't blame him, but damn too much is too much...
I am warned for next time, good that I still can think positive...the more I am in China, the more patient I get Wink

Last edited by fammira on May 14, 2009 - 12:36 AM; edited 3 times in total

monalisalee

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Posted: May 14, 2009 - 12:17 AM

Yes you are right. If you had broken your promise of not taking the place, you would forfeit your deposit. If the landlord does that.....nothing happens.

Where I come from, a written agreement is not ALWAYS required, if the injured party can show "intent" was there, in which case there would be a ruling in their favour.

Five thousand years of history, and there is still a long way to go (in some ways), to catch up to some countries just a few hundred years old.

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johnboy88