Zhongcheng Qingtai | Real Estate Perspective: In the second-hand housing sales contract that has not been registered for property rights, is the developer obliged to directly cooperate with the buyer for the transfer of property rights?
Published:
2020-11-20
Question leads
In the sale of second-hand housing, often encounter the seller of second-hand housing before the title certificate, the house resold to a third person, at this time, the third person can, of course, according to the purchase contract to the seller claim for property transfer, but the third person can directly to the developer claim for property transfer.
Case 1: The third party sued the developer and asked the developer to directly handle the real estate certificate under the name of the third party. This kind of lawsuit requested the court not to support it.
Case one
Company A and Pan signed the "Commercial Housing presale Contract" in January 2000, agreeing that Pan would purchase a set of commercial housing from Company A with an amount of 253210 yuan, a down payment of 83210 yuan and a bank mortgage of 170000 yuan. After Pan and Jianhe sub-branch (later renamed Tianhe sub-branch) Tianhe sub-branch signed a mortgage contract for the purchase of housing loans, issued loans, mortgage procedures. The case was prosecuted and enforced because Pan did not repay the loan. The creditor's rights were transferred to Company B. In July 2007, Company B, Pan Mou and the outsider Chen Mou signed the "Implementation Settlement Agreement", which agreed that Chen Mou would reach a settlement during the implementation. Chen Mou would pay all the principal, interest and expenses involved in the case to Company B, and Pan Mou would transfer the property to Chen Mou. Chen Mou paid all the principal and interest and expenses to the other company according to the contract, and Tianhe Sub-branch issued a "Certificate of Tilting" and applied for the procedures of Tilting. However, the property unanimously failed to handle the transfer procedures.
There was a dispute between Company A and Company C. In December 2007, the court ruled that the property involved in the case of Company A was transferred to Company C. Chen sued, requesting Company A and Company C to deliver the house involved in the case to Chen and provide necessary supporting documents to assist Chen in the registration of house ownership and land use rights.
The court of first instance held that Chen had also fulfilled the payment obligations stipulated in the implementation of the settlement agreement. Under the circumstances that the mortgage loan of the house involved in the case has been paid off and Pan Mou has not claimed his rights to Bai Mou Company and C Company in time, resulting in the lack of protection of Chen Mou's rights, Chen Mou now directly sues and requests to judge Bai Mou Company and C Company to deliver the house to Chen Mou, Bai Mou Company, C Company and Tianhe Sub-branch to assist in handling the registration of mortgage cancellation with sufficient grounds and in line with the principle of fairness and reasonableness, therefore, support it. In the same way, Chen Mou asked Bai Company and C Company to provide certification materials to assist in the registration of property rights transfer. Pan did not raise any objection to this, so the request was well founded. However, because Chen currently does not have the qualifications to buy a house, there are objective obstacles and cannot be handled, so the litigation request is temporarily not supported. Chen Mou can wait until the obstacle is removed, and then negotiate or sue for settlement. Company A and Company C were sentenced to deliver the real estate involved in the case to Chen Mou and rejected other claims.
Company C appealed, and the court of second instance held that Pan only signed the "Commercial Housing presale Contract" with Bai for the house involved in the case, and did not obtain the real estate certificate of the house involved, and Chen did not provide evidence to prove that Bai or C had agreed that Pan would transfer Pan's rights and obligations in the "Commercial Housing presale Contract" to Chen, in the case that Company C now also expressed its disagreement with Pan to transfer the rights and obligations of Pan in the Commercial Housing presale Contract to Chen, Chen can only claim the rights from the opposite party of the contract, that is, Pan, according to the relativity of the contract, while it lacks factual and legal basis to claim the rights from Bai Company, Company C and Tianhe Branch, which have no contractual relationship with him, therefore, the original judgment was that Bai Company and C Company made a mistake in delivering the house involved to Chen Mou. The judgment revoked the first instance judgment and rejected Chen's claim.
Scenario 2: The third party sued the developer, asking the developer to assist the seller of the second-hand house to handle the transfer of property rights, this kind of litigation requests the court to support.
Case II
On February 18, 2017, Wang mou and du mou signed the "underground parking space sales contract". the contract stipulates that Wang mou will purchase a parking space located in a residential area of Jinan hi-tech zone. since du mou has not yet obtained the real estate certificate of the parking space on the date of signing the contract, article 5 of the "underground parking space sales contract" stipulates: "property right registration: the formalities not completed by party a shall be handled by party B, including: 1. Party A's undelivered parking deed tax shall be paid by Party B and shall not be included in the total price. Party A unconditionally cooperates with Party B to handle the registration of the above parking spaces, property rights registration and other related procedures. Party A cooperates with Party B to go through the procedures for changing property rights." After the contract was signed, Wang paid Du 100000 yuan for the transfer of the parking space involved in the case in five times from February 19 to February 24, 2017 according to the contract. After both parties went to the residential property to complete the handover procedures, Du delivered the parking space to Wang for use. Later, Wang asked Du to register the change of property rights, but Du refused to perform the obligations of handling certificates and transfer of ownership of the parking space involved in the case. Wang sued the people's court in order to safeguard his legitimate rights and interests. His lawsuit request was as follows: first, he requested to order the defendant Du to immediately handle the property right certificate of the parking space, and the defendant Jinan real estate development company to assist; second, he requested to order the defendant Du to obtain the ownership certificate of the parking space, immediately assist the plaintiff Wang to handle the transfer registration procedures.
Court judgment: The Court held that Article 8 of the Contract Law stipulates that a legally established contract shall be legally binding on the parties. The parties shall perform their obligations in accordance with the agreement and may not modify or terminate the contract without authorization. In this case, on December 18, 2017, the plaintiff and the defendant signed the "underground parking space sales contract", which is the true intention of both parties, and both parties should perform the contract. At present, the price of the parking space involved has been paid to du mou, and the parking space involved has been delivered to Wang mou for use. du mou should transfer the property right of the parking space involved to Wang mou in accordance with the contract. Jinan real estate development co., ltd. also has the responsibility and obligation to assist du mou in handling the property right certificate of the parking space involved. Therefore, the plaintiff to handle the parking space property right certificate and assist the plaintiff Wang mou transfer litigation request to support.
case analysis
The focus of the dispute in the above case is: if the buyer purchases the house from the developer, has not yet registered the property right, and resells the house to a third party, can the third party directly request the developer to handle the ownership certificate? For this issue, the key is whether to break through the relativity of the contract.
Analysis of the difference between the above two cases: the third person in case one claims to require the developer to directly transfer the real estate certificate to his name, while the third person in case two claims to require the developer to assist the seller of the second-hand house to handle the transfer of property rights, so that the seller of the second-hand house can handle the transfer of property rights for the third party.
1. For the focus of the dispute in case one, there are two views in practice: the first view is that, based on the principle of contract relativity, the third party only requires the buyer to assist in the registration of the change of property rights of the house, and cannot directly claim to the developer. The second view is that the front and rear contracts are in a continuous state, and the third party replaces the buyer's position. For the convenience of the transaction, the registration can be omitted in the middle, and the buyer can directly request the developer to assist in the registration of property rights change. The Supreme People's Court responded to this issue in the third series of Civil Trial Guidance and Reference in 2017. "We agree with the first view on the grounds that:(1) it is consistent with the jurisprudence of contract relativity. Article 8 of the Contract Law stipulates that a legally established contract shall be legally binding on the parties. A contract takes effect between the counterparties and generally cannot bind a third party other than the contract, except as expressly provided by law. In the case of a serial sale, although it is aimed at the same subject matter and the transactions are continuous with each other, they still belong to different subjects and different legal relationships, so the third party cannot break through the relativity of the contract and directly claim rights against the seller, unless it complies with the provisions of Article 73 of the Contract Law on subrogation. (2) Prevent the loss of national tax revenue. According to the relevant laws and regulations of my country's real estate taxation, second-hand housing transactions need to pay business tax, personal income tax, deed tax and other taxes. If a third party is allowed to directly claim the transfer of ownership to the seller, the tax in the intermediate link will be evaded, resulting in the loss of state-owned assets. There is a suspicion that civil trials hinder the state's administrative power to levy taxes. (3) Reasonable balance of the interests of creditors. If a third party is allowed to request the transfer of ownership directly from the seller, the interests of the buyer's creditors may be harmed. Especially when the buyer maliciously evades the debt, it makes a fictitious house sale contract with a third party, and the third party obtains the ownership of the house through a court decision, so that the interests of the buyer's creditors are defeated."
2. As for Case 2, firstly, the third party did not break through the principle of contract relativity. The third party only advocated that the developer assist the seller of the second-hand house to register the property right, so that his own rights can be realized. Secondly, the third party also has no possibility of tax evasion. In the process of realizing the right, the developer handles the property right registration for the seller of the second-hand house, and then the seller of the second-hand house handles the property right registration for the third party, there is no possibility of tax evasion from beginning to end; finally, in case two, there is no creditor interest that harms the seller of the second-hand house. Therefore, the court supported the third party's claim.
Summary
In the transaction process of second-hand housing, such a situation often occurs. The seller resells the real estate to a third party before he has obtained the real estate registration certificate. At this time, the third party can of course claim the property right transfer from the seller according to the second-hand housing sales contract. For suing the developer, the third party should flexibly grasp the litigation skills and cannot directly claim to the developer to register the real estate certificate under its name, instead, developers should be required to assist the seller of second-hand housing for property registration, and then transfer the property to its name, so as not to break through the relativity of the contract.
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