Real estate perspective: when the real estate buyer's property right expectation right is enforced against the creditor, how to determine that "the transfer registration is not due to the buyer's own reasons"?
Published:
2021-06-10
The Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by People's Courts (hereinafter referred to as "the Provisions") came into effect on January 1, 2021. According to the provisions of Article 28, the real right expectation right of real estate buyers has the effect of excluding enforcement under certain conditions, that is: (1) a legal and effective written sales contract has been signed before the people's court seals up; the (II) has legally occupied the real estate before the people's court seals up; the (III) has paid all the price, or has paid part of the price in accordance with the contract and delivered the remaining price in accordance with the requirements of the people's court; the (IV) has not gone through the transfer registration due to the buyer's own reasons. The first (I) of (II) (III) is an objective condition, the first (IV) is a subjective condition, this paper will combine the legislative intent and judicial decision, the first (IV) of the subjective elements, that is, "buyer's fault" analysis.
The 1.'s determination of "buyer's fault" should be strictly controlled and should not be expanded.
In essence, the rights of the buyer of real estate to the subject matter, and the rights of the monetary creditor, are claims, based on the principle of equality of claims, both have no priority of rights. In the case of meeting the above four conditions at the same time, the creditor's right of the buyer of real estate has priority over the creditor's right of the applicant for execution, which is a breakthrough in the "equality of creditor's rights". Therefore, the application of Article 28 should be strictly controlled and the interpretation should not be expanded.
Judicial judgment point of view:(2021) The Supreme Court Minshen No. 1177 judgment holds that Article 28 solves the special rules set up for the purpose of special protection of the legitimate rights of the buyer when there is a conflict between the buyer's protection of the purchased real estate rights and the protection of the rights of ordinary money enforcement creditors in the enforcement procedure. Therefore, when examining and determining whether the outsider enjoys civil rights and interests sufficient to exclude enforcement by reference to the application of this provision, the prerequisites for the application of this article should be strictly grasped, and the facts such as the buyer's payment of the price, legal possession of real estate and the reasons for not handling the transfer of ownership should be strictly examined.
2. from the specific case, the analysis of the "buyer's fault" of the specific identification.
According to the interpretation of the provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Court, the reasons that can be attributed to the buyer can be divided into three levels: first, the neglect of the obstacles to the rights of others; second, the neglect of policy restrictions; and third, the negative exercise of registration rights.
(I) Ignores Obstacles to the Rights of Others
The most common manifestation of "ignoring the obstacles to the rights of others" is that the realization of the buyer's rights is hindered by the existence of a mortgage burden on the trading real estate. Before signing the sales contract, the buyer is based on whether the buyer is aware of the existence of the mortgage burden. There are two diametrically opposite views on whether it is at fault for not registering the transfer of ownership:
The first point of view is that:(2021) the Supreme Famin Shen No. 23 judgment states that from the above situation, Liu Shengyuan knew that the house could not be registered before buying the house involved in the case. As the buyer, Liu Shengyuan should do his duty of prudent care. He still purchased the house when he knew that the house involved in the case had not yet applied for the real estate certificate and could not directly handle the transfer registration. He was at fault for the house involved in the case and should bear the legal risks brought about thereby. (2019) Supreme Court Minzhong Judgment No. 480 states that in this case, the house involved in the purchase of Noker Company did not register the transfer of ownership because the house had been registered with other people's mortgage rights before its purchase. The purchase of the house involved in the Nok Company did not fulfill the reasonable duty of care, ignoring the rights of others, resulting in the purchase of the house due to the existence of other people's mortgage and can not handle the transfer registration, so the failure to handle the transfer registration is due to the buyer Nok Company's own reasons.
The second point of view is that:(2016) the Supreme Famin Shen No. 3646 judgment states that when the two parties sign the Asset Transfer Contract, whether Hanyuan Company knows that it cannot handle the real estate title certificate is not necessarily related to the inability to transfer the subject matter after the contract is signed. In the contract involved, China Television Union clearly informed the other party that it could not handle the property right certificate, which could not be used as the basis for determining that the transfer registration had not been handled due to Hanyuan Company.
Our lawyers agree with the first view. The purchase of a house is a major event in family life. Before the purchase, the buyer should fully understand the ownership, creditor's rights and debts, and mortgage of the house. If the buyer knows that the house has a mortgage burden and still chooses to trade before the purchase, it is deemed that he voluntarily bears the risk of the house being enforced before the completion of the transfer registration; if the buyer does not know whether the house has a mortgage burden before the purchase, he chooses to trade, it is considered that it has not fulfilled its duty of prudent care and should still bear the legal risk of not being able to realize the property right smoothly. That is, as long as the transaction real estate has a mortgage burden, which hinders the realization of the buyer's right, it can be considered as "the buyer's own reasons for not registering the transfer".
(II) neglect of policy restrictions
"Ignoring policy restrictions", the most common manifestation is knowing that the purchase of the subject real estate has a restrictive policy and cannot be transferred but still purchased, including but not limited to restrictions on the purchase of new houses, restrictions on the transaction of second-hand houses, relocation and resettlement houses or affordable housing, etc. Transaction restrictions on specific types of houses, etc., whether this situation is the fault of the buyer, the judicial decision has two diametrically opposite views:
The first point of view is that:(2017) Jin Min Zhong Judgment No. 151 states that when Li Zhangzi and Zhang Naijing signed the house purchase contract, they did not have the qualification to purchase the house for the time being. Both parties clearly agreed in the contract that they would handle the house transfer formalities after Li Zhangzi obtained the qualification to purchase the house. Therefore, the failure to handle the transfer registration of the disputed house was not caused by Li Zhangzi himself.
The second point of view is that:(2021) Lu 02 Minzong No. 835 Judgment stated that Jiang Tao was restricted by the objective conditions of "price-limited commercial housing shall not be listed for trading within 5 years from the date of real estate registration" and could not register the transfer of the house to his name. The rights and interests enjoyed by the house involved are not enough to exclude the people's court from enforcing the house involved.
Our lawyers agree with the second view. If the buyer chooses to trade knowing that he is not qualified to purchase a house, or knows that the transaction property cannot be registered for transfer within a certain period of time, it is deemed that he voluntarily bears such risks; if the buyer chooses to buy without paying attention to his purchase qualification or whether the transaction property can be registered for transfer, it is deemed that he has not fulfilled his duty of prudent care and should still bear corresponding risks. That is, as long as the realization of the right of the buyer is hindered by policy restrictions, it can be considered as "the buyer's own reasons for not registering the transfer".
(III) negative exercise of registration rights
The Supreme People's Court issued.<全国法院民商事审判工作会议纪要>Article 127 of the Notice Law [2019] No. 254 stipulates that, generally speaking, the buyer may be considered to meet this condition as long as he has submitted the transfer registration materials to the housing registration institution, or has made a request to the seller for the transfer registration. If the buyer does not have the above-mentioned positive behavior and has a reasonable objective reason for not registering the transfer of ownership, it can also be determined to meet the conditions.
In practice, the positive actions taken by the buyer include urging the seller to apply for transfer registration, filing a lawsuit, applying for arbitration, etc. by means of telephone, text message, wechat, letter, etc. There are two diametrically opposed views on the way to be recognized as effective "positive behavior:
The first point of view is that:(2014) Lai Zhongmin Yi Zhong Zi No. 233 Judgment states that Bian Xiuwen said that the appellee Zhu Yong had contacted several times by phone because he and Gao Wenchun often set out and did not transfer the ownership in time. However, Zhu Yong's transaction with Gao Wenchun and Bian Xiuwen in January 2009 lasted for more than three years until the disputed house was sealed up by the people's court in July 2012. Zhu Yong had no evidence to prove that he had taken other active measures to handle the transfer registration, nor had he filed a lawsuit with the people's court or applied to the arbitration institution for arbitration in accordance with the law, except that Bian Xiuwen said he contacted by telephone, requiring Gao Wenchun and Bian Xiuwen to cooperate with the property rights transfer procedures and actively exercise their rights is a failure to exercise their rights and is at fault.
The second view is that:(2017) Jinmin Final Judgment No. 78 states that Chen Jia, as an ordinary consumer, is not a legal professional, and failure to exercise his power through litigation before filing an enforcement objection cannot of course be regarded as his fault.
Our lawyers agree with the second view. Due to the weak legal consciousness and the limitation of professional knowledge, we should adopt a tolerant attitude towards the way, frequency and degree of the rights claimed by the buyer, and should not be too harsh. As long as the buyer can give preliminary evidence of the right to claim, it should not be regarded as "negative exercise of registration right".
Advice from 3. lawyers
In practice, when purchasing real estate, the buyer must make clear whether the purchase of the real estate is restricted by relevant policies, whether the transaction real estate has a mortgage burden, etc., and in the case of not being able to handle the transfer registration, take written measures to claim rights in time, and avoid taking "failure to handle the transfer registration" as "self-reason" when the transaction real estate becomes the subject of execution ", thus blocking the transformation of the right of expectation of real right into real right.
Key words:
Related News
Zhongcheng Qingtai Jinan Region
Address: Floor 55-57, Jinan China Resources Center, 11111 Jingshi Road, Lixia District, Jinan City, Shandong Province
