Real Estate Perspective: Shandong High Court Releases Answers to Difficult Legal Questions About Real Estate Enforcement

In order to standardize the execution behavior of courts in the whole province and unify the execution review scale, the Executive Bureau of Shandong Higher People's Court has successively compiled and issued three consecutive solutions to difficult legal problems in execution, summarizing and answering the difficult problems in execution submitted by courts in the whole province. The above answers will further standardize relevant implementation measures and unify the implementation scale, which is conducive to promoting the implementation work in the whole province.

This article is based on the "Shandong High Court Enforcement Difficult Legal Questions Answering (I)", "Shandong High Court Enforcement Difficult Legal Questions Answering (II)", "Shandong High Court Enforcement Difficult Legal Questions Answering (III)", the implementation of difficult legal issues on real estate dispute cases are summarized as follows:

1. implementation measures

Can (I) courts enforce unlicensed houses built on state-owned construction land?

Unlicensed houses built on state-owned construction land are not property that the courts may not seal up, seize or freeze as stipulated by laws and judicial interpretations. Therefore, for undocumented houses built on state-owned construction land, the court can enforce. During the implementation, opinions should be solicited from the housing registration authority on whether the house can be converted into a licensed house, and used as a reference for determining the value of an unlicensed house. When disposing of a house that has not gone through the initial registration, if it has the initial registration conditions, the court can issue a "Notice of Assistance in Execution" to the housing registration agency according to law after disposal; if it does not have the initial registration conditions temporarily, the court can issue a "Notice of Assistance in Execution" to the housing registration agency after disposal, and state that after the house buyer or the person who has completed the relevant procedures and met the initial registration conditions, the housing registration agency shall register in accordance with the Notice of Assistance in Execution; If the initial registration conditions are not met, the "status quo disposal" shall be carried out in principle, I .e. the status quo that the house does not meet the initial registration conditions shall be disclosed before disposal, the buyer or the recipient shall acquire the house according to the status quo of the rights of the house, and the subsequent property right registration shall be the responsibility of the buyer or the recipient.

How should the (II) court take into account the interests of commercial housing buyers when pre-sealing presale commercial housing registered in the name of real estate development enterprises?

The person subject to execution is a real estate development enterprise. In order to avoid infringing upon the legitimate rights and interests of the buyer of the commercial housing, the court intends to pre-seal the presale commercial housing registered in the name of the person subject to execution. It should first inquire about the sale of the presale commercial housing from the real estate registration department, that is, handle the online signature, record registration, etc. If the presale commercial housing has been registered with the real estate registration department, the court may not seal it up. If the applicant for execution provides evidence to prove that the presale commercial housing record registration is a false record made by the person subject to execution in order to evade execution, the court may seal it up. If the buyer of commercial housing raises an outsider's objection, he may choose to apply the provisions of Article 28 or Article 29 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 to exclude enforcement.

(III) how should the court take measures to seal up the presale commercial housing purchased by the executed person?

According to Article 15 of the Notice of the Supreme People's Court, the Ministry of Land and Resources and the Ministry of Construction on Regulating the Enforcement of People's Courts and the Assistance of Land, Resources and Real Estate Management Departments (Fa [2004] No. 5), the houses purchased by the executor that have been initially registered for the ownership of houses by real estate development enterprises, and the houses purchased that have been registered for the registration of commercial housing presale contracts or the advance notice of commercial housing are registered, the court may conduct a pre-seizure. When handling the pre-seizure of presale commercial housing, the court shall, in addition to serving the relevant legal documents of pre-seizure to the real estate registration department, promptly serve the pre-seizure ruling and the notice of assistance in execution to the developer, informing the presale that the commercial housing has been pre-sealed by the court and shall bear legal responsibility for refunding to the person subject to execution without authorization.

After the (IV) court pre-seals the presale commercial housing purchased by the executed person, if the developer and the executed person terminate the contract, can the court continue to execute the presale commercial housing?

After the court pre-seals the presale commercial housing purchased by the executed person, if the developer and the executed person terminate the contract by themselves or terminate the contract by arbitration or litigation, it shall be handled according to the following circumstances:(1) if the developer delivers all the purchase money to the court for execution, the court may no longer execute the presale commercial housing;(2) if the developer returns all the purchase money to the executed person without authorization after receiving the legal documents pre-sealed by the court, the court, the court, the court, the court may continue to execute, the amount returned by the developer to the person subject to execution without authorization shall be recovered by the developer himself;(3) The person subject to execution pays the house purchase price through partial self-payment and partial loan. The bank has registered the pre-mortgage, and the developer bears the stage for the bank loan. If the developer delivers the money to the person subject to execution to the court for execution, the court may no longer execute the presale commercial house;(4) If the executed person pays the house purchase money through partial self-payment and partial loan, the bank has registered for pre-mortgage, and the developer bears phased joint guarantee liability for the bank loan, if the developer fails to deliver the money that should be returned to the executed person to the court, the court may continue to execute the presale property, pay the corresponding amount of the bank loan in advance in the change price, and notify the developer.

In the process of execution, if the developer raises an objection to the exclusion of execution of the presale commercial housing, the court shall review and deal with it in accordance with the procedure of the outsider's objection.

Can the (V) court enforce the funds in the commercial housing presale supervision account under the name of the real estate development enterprise?

The commercial housing presale fund is the real estate development enterprise that sells the commercial housing under construction to the buyer, and the buyer pays the real estate development enterprise the purchase price in accordance with the commercial housing sales contract. Commercial housing presale funds are owned by real estate development enterprises, and the people's court may take freezing measures. However, according to the third paragraph of Article 45 of the "the People's Republic of China Urban Real Estate Management Law", the proceeds from commercial housing presale must be used for related project construction. In the process of execution, the court shall comprehensively consider the relevant laws, regulations and other regulations on the management of commercial housing presale funds, and implement them in accordance with the law on the premise of ensuring the normal progress of construction projects and sufficient construction funds. Therefore, if the construction enterprise holds the approval procedures of the relevant regulatory authorities, effective legal documents, etc., and requests to pay the project progress payment from the commercial housing presale fund supervision account, the court should support it.

How to master the (VI) "local low-rent housing security area standard", "local" in "local housing rental market" and "average rent standard in housing rental market?

In accordance with the provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by the People's Courts, Article 20, Paragraph 1, Item (III), the person applying for execution provides the person and his dependent family members with residential housing in accordance with the local low-rent housing security area standard, or agrees to deduct five to eight years of rent from the variable price of the house with reference to the average rent standard in the local housing rental market. The term "local" in this item refers to the municipal district, county or county-level city where the house to be disposed of is located. For the determination of the "average rent standard in the housing rental market", the court should refer to the information provided by the local housing rental management department and the market situation, and study and determine the specific circumstances of the case.

(VII) the applicant for execution claims that the real estate registered in the name of the outsider belongs to the person subject to execution, can the court execute the real estate?

In accordance with the provisions of the third paragraph of Article 2 of the provisions of the Supreme People's Court on the seizure, seizure and freezing of property in civil execution by the people's court, if the real estate such as land use right and real estate registered in the name of the outsider, the court may take enforcement measures if the outsider approves in writing that the real estate actually belongs to the person subject to execution. The outsider denies that the real estate belongs to the person subject to execution and the court cannot directly execute it. The court may enforce the immovable property after the parties have brought an action or confirmed the title through other legal proceedings.

How should the order of performance be determined if the (VIII) court needs to assist other courts in the execution of the proceeds from the auction of real estate?

If the execution court needs to assist other courts in the execution of the proceeds from the auction of real estate, it shall first assist the court that has a priority claim on the real estate in execution, and then determine the order of assistance in performance in accordance with the order of the seizure of the real estate by the seizure court. If there is still a surplus after assisting the priority creditor's court and waiting for the court to seize the execution or reserve the share, the other courts shall be assisted in the order in which the other courts serve the legal documents to the enforcement court.

How should a third party in the (IX) be examined if it prevents the execution of the real estate involved on the grounds that it enjoys rights such as leasehold?

According to Article 15 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of the Enforcement Procedure of the the People's Republic of China Civil Procedure Law, if an outsider claims ownership of the subject matter of execution or has other substantive rights sufficient to prevent the transfer or delivery of the subject matter of execution, he may raise an objection to the enforcement court in accordance with the provisions of Article 227 of the Civil Procedure Law. Therefore, if the third party prevents the transfer and delivery of the real estate involved in the case on the grounds of enjoying the lease right, in principle, it should be reviewed and dealt with in accordance with the outsider's objection procedure, and account for the outsider and the party's right to file an objection. However, if it is found that the real estate involved in the case is seized or mortgaged first and leased later, the enforcement court may regard the objection as an interested party objection and examine it in accordance with the provisions of Article 225 of the Civil procedure Law.

If the (X) real estate has been auctioned or sold in accordance with the law, and the applicant for execution does not accept the debt, must the property be lifted?

According to the provisions of Article 27 and the second paragraph of Article 28 of the provisions of the Supreme People's Court on the auction and sale of property in civil execution of the people's court, if the property of the person subject to execution has not been sold after being auctioned or sold according to law, and if the person applying for execution and other execution creditors still do not accept the property to repay the debt, the seizure, seizure or freezing shall be lifted and the property shall be returned to the person subject to the person subject to execution, except where other enforcement measures. The "other enforcement measures" stipulated in the above-mentioned judicial interpretation include compulsory management, as well as the reactivation of evaluation and auction procedures by the enforcement court according to changes in market prices.

If the property of the person subject to execution is auctioned or sold in accordance with the law, and the person applying for execution or other enforcement creditors do not accept the debt in return, the court may, after obtaining the consent of the person applying for execution, hand over the property to the person applying for execution for management or restart the evaluation and auction procedures, instead of immediately lifting the measures of seizure, seizure or freezing.

(11) Can the enforcement court continue to take enforcement measures against property returned after the auction has failed?

In accordance with the Provisions of the Supreme People's Court on the Auction and Sale of Property in Civil Enforcement by the People's Courts, the return of the property to the person subject to execution after it is unsealed does not mean that the person subject to execution can no longer perform the obligations specified in the effective legal documents, nor does it mean that the property becomes exempt from execution. The property, as the property of the person subject to execution, can still be used to pay off the debt. As long as the creditor's rights of the applicant for execution are not fully paid off, the court may still take enforcement measures in accordance with the law on the unsealed and returned execution property of the person subject to execution.

(xii) After the pending seizure takes effect, can the court directly award the property to the pending seizure creditor at the previous unsold price?

The first court in the case of the property auction failed, and the creditor refused to accept the debt to lift the seizure, waiting for the seizure of the court's seizure of the property in question after the effectiveness of the seizure, can not without the assessment of the auction process, directly ruled that the property at the auction price to offset the creditors waiting to be seized? In accordance with the provisions of Article 27 and the second paragraph of Article 28 of the provisions of the Supreme People's Court on the auction and sale of property in civil execution of the people's court, if the property of the person subject to execution is unsold by auction, if the applicant or other enforcement creditor applies for or agrees to accept the auction property at the reserve price set by the auction, the property shall be handed over to him for debt. The law and judicial interpretation do not require that the court that initiates the assessment and auction proceedings must be the same court as the court that decides to settle the debt. After the first court ruled to lift the seizure of the property involved, the waiting seizure will take effect automatically, and the waiting court has the right to directly rule that the property involved in the case will be compensated to the creditors waiting for seizure within a reasonable period of time without assessing the auction procedure. If there is a long interval between the date of the auction and the date of the determination of the debt in rem, and the market value of the property involved has changed significantly compared with the last auction, it would be unfair to rule the debt in rem at the price of the auction, in which case, it is not appropriate to rule the debt in rem directly.

2. execution objection reconsideration

(I) the buyer has purchased the presale commercial house under the name of the person subject to execution and has gone through the presale record registration, should the court support the request to exclude the execution of the commercial house?

Article 30 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" stipulates: "During the execution of monetary claims, the transferee proposes to stop the real estate that has been sealed up for the advance notice registration of the transfer of real rights. If the disposition objection is raised, the people's court shall support it; if it meets the conditions for real right registration and the transferee raises an objection to exclude execution, it shall support." The registration of commercial housing presale is the registration of commercial housing presale contracts by the real estate management department in accordance with the Urban Real Estate Management Law, which is an administrative measure. Advance registration is a kind of real right registration system stipulated in the property law, the purpose of which is to ensure that the right holder can realize the real right in the future. The filing and registration of commercial housing presale contracts cannot be equivalent to advance notice registration, does not have the effect of real right, cannot apply the provisions of Article 30 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objection and Reconsideration Cases by People's Courts, and may be reviewed in accordance with the provisions of Article 28 or Article 29 of the above provisions.

(II) the person subject to execution raises an objection to the seizure that exceeds the standard, what should the court focus on?

The court shall focus on the following contents if the person subject to execution raises an objection to the seizure exceeding the standard: 1. The amount of the subject matter of the case execution (including the principal of the creditor's rights, interest, liquidated damages or compensation, interest during the delay in performance and the cost of realizing the creditor's rights specified in the effective legal documents);2. After the implementation department initiates targeted inquiry, online inquiry and entrusted evaluation, the inquiry results or evaluation report issued by the relevant agencies. 3. The market conditions and price fluctuations of the subject matter of the seizure, the proportion that can be floated in accordance with the law when determining the auction reserve price, and the land transfer fees, taxes and fees owed by the executed person; 4. Whether the subject matter of the seizure contains the property waiting for seizure. If there is a waiting list for the seizure of property, the property is not included in the value of the property until it is formally seized; 5. The creation of security interests and other priority rights on the subject matter of the seizure. If the above-mentioned burden of rights exists, the amount of the claim of the priority person shall be deducted from the calculation of the value of the property. 6. An outsider's objection to the subject matter of the seizure.

(III) the subject matter of execution has been sealed up by multiple courts, if an outsider requests the later sealed-up court to lift the seal-up with the decision of the first sealed-up court, what should the later sealed-up court do?

The subject matter of execution involves multiple execution cases and has been seized by multiple courts. Due to the different types of rights and priority of rights enjoyed by the executor in different cases, the reasons for whether the substantive rights enjoyed by the outsider to the subject matter of execution can be opposed to the executor of each case are different, and the remedies that the executor of each case may choose are also different. Therefore, if an outsider requests the subsequent seizure court to lift the seizure, the subsequent seizure court cannot directly suspend the execution or lift the seizure based on legal documents such as the first court's unsealing ruling, and the outsider's objection shall still be reviewed in accordance with Article 227 of the the People's Republic of China Civil Procedure Law.

If an outsider in the (IV) raises an objection to the execution of the subject matter awaiting seizure, should the court accept it?

In accordance with the provisions of the first paragraph of Article 28 of the provisions of the Supreme people's Court on the seizure, seizure and freezing of property in civil execution by the people's Court and the provisions of the reply of the Supreme people's Court on the effectiveness of the seizure of all the subject matter disposed of by the court, the seizure, seizure and freezing prior to the seizure, seizure and release of the freeze shall take effect automatically. After the people's court has disposed of all the property that has been sealed up, detained or frozen, the waiting list for sealing up, seizure or freezing of the property has never had the effect of sealing up, seizure or freezing. Therefore, the effect of the actual seizure has not occurred in the waiting seizure, and if the outsider claims to exclude the enforcement of the claimed entity rights of the subject matter of the pending seizure, he shall file an objection to the first seizure court. If an outsider raises an objection to the court waiting for the seizure, the court waiting for the seizure shall not accept it.