Research On Damages Of Housing Tenant’s Right Of First Refusal

The tenant’s right of first refusal is an important part of the civil legal system,and the provisions on its exercise are scattered throughout the Civil Code and in various judicial interpretations.The Civil Code only provides that a tenant may claim damages when his or her rights are infringed,but does not provide for the type of infringement,the subject of the claim,the nature of liability and the scope of compensation,which has led to a lack of uniformity in judicial practice.Firstly,the nature of the tenant’s right of first refusal should be considered as a formative right in the nature of a claim,and on this basis,the performance or non-performance of the "duty of notice" should be taken as the criterion,combined with the exclusion period and the registration of the transfer,the three main types and eight circumstances of infringement of the tenant’s right of first refusal can be clearly classified.Secondly,as the system greatly restricts the seller’s freedom of disposal,the scope of subjects should be strictly limited,excluding sublessees and commercial tenants,and at the same time,the conditions and modes of exercising the rights of partial lessees and auction lessees should also be clarified.Again,different types of infringement should be identified with different nature of responsibility.In the event that the lessee fails to exercise its rights,the lessor shall be liable in tort;in the event that the lessee successfully exercises its rights and the lessor refuses to perform the contract,the lessor shall be liable for breach of contract.Finally,it should be recognised that the scope of damages for the lessee’s right of first refusal includes loss of difference in price of the house,loss of rent,loss of salvage value of fixed decorations,etc.In the case of infringement,as the lessee may not necessarily exercise the right,the lessee needs to prove its willingness and ability to purchase in order to claim damages.In the case of breach of contract,since the lessee has exercised its rights and the lessor refuses to perform its contractual obligations,the lessor,as the party in breach of contract,should compensate the lessee for all the damages,including the loss of performance interests such as the difference in price of the house.