Point of view... "One room, two sales" problem practice.
Published:
2022-09-16
The author recently handled a case of "one house, two sales", this paper will expand the analysis of how to deal with different situations in the practice of "one house, two sales" and risk prevention issues. Basic case Company A (canceled in 2004) signed a contract with Company B in 2001 and agreed to purchase a number of commercial houses of Company B. In September of the same year, Company A signed a Housing Purchase and Sale Agreement with Company C to resell the above-mentioned commercial houses purchased from Company B to Company C for demolition and resettlement, including the two houses involved in the case. After the contract is signed, Company C will pay Company A according to the contract, the two sides immediately handled the delivery of the house. Company C used all the above-mentioned houses for the demolition and resettlement of employees, and the employees subsequently moved to the above-mentioned houses for use until now. After that, Company A delayed the registration of the house transfer. In November 2018, Company C learned that Company B had certified the two houses involved in the case to Lu Mou on December 12, 2005. Lu mou was originally an employee of company a. company B concocted two "commercial housing sales contracts" with Lu mou on December 22, 2005 according to company a's transfer application, and cooperated with Lu mou to issue certificates for the two houses involved in the case to Lu mou. Based on the above facts, Company C filed a lawsuit with the court, demanding that the two "Commercial Housing Sales Contracts" signed by Company B and Lu Mou be confirmed invalid in accordance with the law. Finally, the court held that company B signed two "commercial housing sales contracts" with Lu mou according to the application of company a. company B claimed that there was no housing sales contract relationship with Lu mou, and Lu mou did not provide evidence to prove that it actually fulfilled the obligation of housing payment delivery. therefore, the meaning of the two "commercial housing sales contracts" concluded between company B and Lu mou was inconsistent, the agreement of the offer and commitment was not formed, so the two "commercial housing sales contracts" were not established. The essence of the case was that Company A sold one house and two houses. Company A colluded maliciously with Lu Mou. Company B mistakenly cooperated with Company A and Lu Mou to transfer the house involved in the case to Lu Mou's name under the condition of being cheated by Company A and Lu Mou. In the trial, Company B admitted that there was no contract relationship between Company B and Lu, and Lu did not provide evidence to prove that it actually fulfilled the obligation to deliver the house payment, which did not meet the requirements for the establishment of the contract. Therefore, the first instance ruled that the two "Commercial Housing Sales Contracts" between Company B and Lu were not established, and the second instance upheld the original judgment. Article 220, paragraph 1, of the Civil Code stipulates: "If the obligee or interested party considers that the matters recorded in the real estate register are incorrect, he may apply for correction of the registration. If the obligee recorded in the real estate register agrees in writing to make the correction or if there is evidence to prove that the registration is indeed wrong, the registration authority shall make the correction." From then on, company c may apply to the real estate registration agency for correction of registration with the effective judgment. The principle of handling one room and two sales In the above-mentioned case, the second transaction of the house involved in the case was judged not to be established because there was no agreement to buy and sell, in practice, for the sale and purchase behavior, the overall summary is nothing more than normal transactions, malicious collusion and other reasons for abnormal transactions three possibilities. In order to identify malicious collusion, it is generally possible to exclude normal trading and other causes by proving the existence of an association, low-cost transfer and applying rules of thumb. When the seller and the third party maliciously collude to enter into a separate house purchase and sale contract and then sell the house involved to the third party, it should be handled according to the relevant rules obtained in good faith, and judge whether the third party is in good faith when signing the contract (I .e. whether there is intentional or gross negligence), whether the transfer price is reasonable, whether it is registered or delivered through factual evidence, etc. If a third party acquires the ownership of the house in question in good faith, the original right holder may claim damages from the person who has no right to dispose of the house in accordance with the provisions of Article 341, paragraph 2, of the Civil Code. At the same time, according to the relevant provisions of the Supreme People's Court on Several Issues Concerning the Trial of Housing Registration Cases, if a third party has acquired the ownership of the house involved in good faith, the court shall rule to reject the plaintiff's lawsuit for subsequent transfer registration; the accused house registration is illegal, But if the revocation of the judgment will cause heavy losses to the public interest or the house has been acquired in good faith, the judgment confirms that the accused is illegal, but does not revoke the registration. In practice, if several contracts are valid and the buyer requires to perform the contract, according to the provisions of the minutes of the eighth national court civil and commercial trial work meeting of the Supreme people's Court, "when hearing a dispute over the sale of a house, if several contracts are valid and the buyer requires to perform the contract, generally, the right protection shall be determined in accordance with the order of registration of the change of ownership of the house, the legal possession of the house and the performance of the contract, and the order of the establishment of the contract of sale. However, the buyer who has registered in bad faith cannot have priority over the buyer who has legally occupied the house. The time of establishment of the contract of sale shall be determined by the time of filing by the competent authority, the time of signing the contract and other evidence". In the case of "one house, two sales", if the two contracts involving the common subject matter have legal effect, the real estate registration is better than the real estate registration. However, if two contracts involving the same subject matter, one of which is not legally effective or is found to be invalid, the buyer of the contract does not have the right to claim the subject matter, and certainly cannot fight the other legally valid contract buyer's right to claim the subject matter. How to prevent "one room two sell"? It is suggested that when signing the contract, the buyer of the house should have a detailed understanding of the property right status of the house, the current situation of the use of the house and other basic information. After the contract is signed, the seller should be urged to cooperate with the transfer procedures in a timely manner. The following measures can be taken to ensure that the ownership of the house can be obtained: 1. Registration of advance notice The buyer may apply for advance notice registration of real estate in accordance with the provisions of paragraph 1 of Article 85 of the detailed rules for the implementation of the interim regulations on Real Estate Registration in accordance with the agreement: (1) commercial housing and other real estate presale; (II) real estate sale and mortgage; (III) to set up mortgage on pre-purchased commercial housing; in (IV) with other circumstances stipulated by laws and administrative regulations, go through advance notice registration when purchasing commercial housing, the advance notice registration has the effect of public announcement. Article 15, paragraph 2, of the Interpretation (I) of the Supreme People's Court on the Application of the Property Rights Section of the the People's Republic of China Civil Code stipulates that under the following circumstances, the transferee of immovable property shall be deemed to know that the transferor has no right of disposition: within the validity period of the advance notice registration, without the consent of the obligee of the advance notice registration. After the buyer has registered the advance notice, the seller has no right to dispose of the house without authorization, thus preventing the third party from obtaining it in good faith. Although most local registration agencies handle advance registration for presale commercial housing, in fact, advance registration can also be carried out for second-hand housing transactions. However, it is worth noting that after the advance notice registration, if the creditor's right is eliminated or the real estate registration can be carried out, both parties to the advance notice registration should apply to the real estate registration institution for transfer registration in time. Otherwise, if the creditor's right is eliminated or the registration is not applied for within 90 days from the date when the real estate registration can be carried out, the advance notice registration shall be invalid. If the transfer registration cannot be applied for due to various reasons, it is recommended that both parties apply to the real estate registration agency for advance notice registration again for extension. 2. Handle online signature filing Online signing and filing can make real estate transactions more transparent and fully protect the stability of commercial housing transactions. Whether it is a new housing transaction or a second-hand housing transaction, after the buyer and the seller have signed a housing sales contract, they can go to the relevant department for online signing and filing., The online signature number formed by the record is published online and available for relevant parties to inquire, so as to prevent "one house, two sales" or even "one house selling more".
The author recently handled a case of "one house, two sales", this paper will expand the analysis of how to deal with different situations in the practice of "one house, two sales" and risk prevention issues.
Basic case
Company A (canceled in 2004) signed a contract with Company B in 2001 and agreed to purchase a number of commercial houses of Company B. In September of the same year, Company A signed a Housing Purchase and Sale Agreement with Company C to resell the above-mentioned commercial houses purchased from Company B to Company C for demolition and resettlement, including the two houses involved in the case. After the contract is signed, Company C will pay Company A according to the contract, the two sides immediately handled the delivery of the house. Company C used all the above-mentioned houses for the demolition and resettlement of employees, and the employees subsequently moved to the above-mentioned houses for use until now. After that, Company A delayed the registration of the house transfer. In November 2018, Company C learned that Company B had certified the two houses involved in the case to Lu Mou on December 12, 2005. Lu mou was originally an employee of company a. company B concocted two "commercial housing sales contracts" with Lu mou on December 22, 2005 according to company a's transfer application, and cooperated with Lu mou to issue certificates for the two houses involved in the case to Lu mou.
Based on the above facts, Company C filed a lawsuit with the court, demanding that the two "Commercial Housing Sales Contracts" signed by Company B and Lu Mou be confirmed invalid in accordance with the law.
Finally, the court held that company B signed two "commercial housing sales contracts" with Lu mou according to the application of company a. company B claimed that there was no housing sales contract relationship with Lu mou, and Lu mou did not provide evidence to prove that it actually fulfilled the obligation of housing payment delivery. therefore, the meaning of the two "commercial housing sales contracts" concluded between company B and Lu mou was inconsistent, the agreement of the offer and commitment was not formed, so the two "commercial housing sales contracts" were not established.
The essence of the case was that Company A sold one house and two houses. Company A colluded maliciously with Lu Mou. Company B mistakenly cooperated with Company A and Lu Mou to transfer the house involved in the case to Lu Mou's name under the condition of being cheated by Company A and Lu Mou. In the trial, Company B admitted that there was no contract relationship between Company B and Lu, and Lu did not provide evidence to prove that it actually fulfilled the obligation to deliver the house payment, which did not meet the requirements for the establishment of the contract. Therefore, the first instance ruled that the two "Commercial Housing Sales Contracts" between Company B and Lu were not established, and the second instance upheld the original judgment.
Article 220, paragraph 1, of the Civil Code stipulates: "If the obligee or interested party considers that the matters recorded in the real estate register are incorrect, he may apply for correction of the registration. If the obligee recorded in the real estate register agrees in writing to make the correction or if there is evidence to prove that the registration is indeed wrong, the registration authority shall make the correction." From then on, company c may apply to the real estate registration agency for correction of registration with the effective judgment.
The principle of handling one room and two sales
In the above-mentioned case, the second transaction of the house involved in the case was judged not to be established because there was no agreement to buy and sell, in practice, for the sale and purchase behavior, the overall summary is nothing more than normal transactions, malicious collusion and other reasons for abnormal transactions three possibilities. In order to identify malicious collusion, it is generally possible to exclude normal trading and other causes by proving the existence of an association, low-cost transfer and applying rules of thumb. When the seller and the third party maliciously collude to enter into a separate house purchase and sale contract and then sell the house involved to the third party, it should be handled according to the relevant rules obtained in good faith, and judge whether the third party is in good faith when signing the contract (I .e. whether there is intentional or gross negligence), whether the transfer price is reasonable, whether it is registered or delivered through factual evidence, etc.
If a third party acquires the ownership of the house in question in good faith, the original right holder may claim damages from the person who has no right to dispose of the house in accordance with the provisions of Article 341, paragraph 2, of the Civil Code. At the same time, according to the relevant provisions of the Supreme People's Court on Several Issues Concerning the Trial of Housing Registration Cases, if a third party has acquired the ownership of the house involved in good faith, the court shall rule to reject the plaintiff's lawsuit for subsequent transfer registration; the accused house registration is illegal, But if the revocation of the judgment will cause heavy losses to the public interest or the house has been acquired in good faith, the judgment confirms that the accused is illegal, but does not revoke the registration.
In practice, if several contracts are valid and the buyer requires to perform the contract, according to the provisions of the minutes of the eighth national court civil and commercial trial work meeting of the Supreme people's Court, "when hearing a dispute over the sale of a house, if several contracts are valid and the buyer requires to perform the contract, generally, the right protection shall be determined in accordance with the order of registration of the change of ownership of the house, the legal possession of the house and the performance of the contract, and the order of the establishment of the contract of sale. However, the buyer who has registered in bad faith cannot have priority over the buyer who has legally occupied the house. The time of establishment of the contract of sale shall be determined by the time of filing by the competent authority, the time of signing the contract and other evidence".
In the case of "one house, two sales", if the two contracts involving the common subject matter have legal effect, the real estate registration is better than the real estate registration.
However, if two contracts involving the same subject matter, one of which is not legally effective or is found to be invalid, the buyer of the contract does not have the right to claim the subject matter, and certainly cannot fight the other legally valid contract buyer's right to claim the subject matter.
How to prevent "one room two sell"?
It is suggested that when signing the contract, the buyer of the house should have a detailed understanding of the property right status of the house, the current situation of the use of the house and other basic information. After the contract is signed, the seller should be urged to cooperate with the transfer procedures in a timely manner. The following measures can be taken to ensure that the ownership of the house can be obtained:
1. Registration of advance notice
The buyer may apply for advance notice registration of real estate in accordance with the provisions of paragraph 1 of Article 85 of the detailed rules for the implementation of the interim regulations on Real Estate Registration in accordance with the agreement: (1) commercial housing and other real estate presale; (II) real estate sale and mortgage; (III) to set up mortgage on pre-purchased commercial housing; in (IV) with other circumstances stipulated by laws and administrative regulations, go through advance notice registration when purchasing commercial housing, the advance notice registration has the effect of public announcement.
Article 15, paragraph 2, of the Interpretation (I) of the Supreme People's Court on the Application of the Property Rights Section of the the People's Republic of China Civil Code stipulates that under the following circumstances, the transferee of immovable property shall be deemed to know that the transferor has no right of disposition: within the validity period of the advance notice registration, without the consent of the obligee of the advance notice registration.
After the buyer has registered the advance notice, the seller has no right to dispose of the house without authorization, thus preventing the third party from obtaining it in good faith.
Although most local registration agencies handle advance registration for presale commercial housing, in fact, advance registration can also be carried out for second-hand housing transactions. However, it is worth noting that after the advance notice registration, if the creditor's right is eliminated or the real estate registration can be carried out, both parties to the advance notice registration should apply to the real estate registration institution for transfer registration in time. Otherwise, if the creditor's right is eliminated or the registration is not applied for within 90 days from the date when the real estate registration can be carried out, the advance notice registration shall be invalid. If the transfer registration cannot be applied for due to various reasons, it is recommended that both parties apply to the real estate registration agency for advance notice registration again for extension.
2. Handle online signature filing
Online signing and filing can make real estate transactions more transparent and fully protect the stability of commercial housing transactions. Whether it is a new housing transaction or a second-hand housing transaction, after the buyer and the seller have signed a housing sales contract, they can go to the relevant department for online signing and filing., The online signature number formed by the record is published online and available for relevant parties to inquire, so as to prevent "one house, two sales" or even "one house selling more".
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