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Real estate perspective: whether the right to request a certificate applies to the statute of limitations.

Published:

2020-09-18

Brief of the case:
On August 2, 1996, Liao and Ding signed the "House Transfer Agreement". Ding transferred all his houses to Liao and his wife, but they have not gone through the property rights transfer procedures. On March 13, 2002, due to the needs of the old city reconstruction, the house was included in the scope of demolition. As the property right representative, Liao signed the "Housing Demolition and Resettlement Compensation Agreement" with an urban construction company of the demolisher. After the completion of the resettlement house in 2003, Liao and his wife have not gone through the procedures for receiving the house, and an urban construction company had to temporarily place the property rights of the house under the company's name. In September 2018, Liao and his wife asked Ding and an urban construction company to assist in the transfer procedures. They sued the court to confirm that the "House Transfer Agreement" was legal and valid, and ordered Ding and an urban construction company to cooperate in the transfer procedures.

Focus of controversy:
Whether Liao's prosecution exceeds the statute of limitations.

The court decided:
Court of First Instance: The statute of limitations stipulated in the General Principles of Civil Law of our country applies only to the right of claim, and the right of formation is not limited by the statute of limitations. The plaintiff's request for assistance in the transfer of ownership belongs to the right of claim, and the provisions of the statute of limitations are also not applicable. Therefore, the defendant's defense of the plaintiff's prosecution has exceeded the statute of limitations is not established.

Court of second instance: The right to request a certificate for a contract for the sale of a house is different from the general right of claim, and the right of claim has a strong tendency and attribute of property rights, so the plaintiff's request for the defendant to assist in the registration of the transfer of the house shall not apply the provisions of the statute of limitations.

Legal Perspectives:
This case belongs to the issue of the right to request a certificate. Continuing to perform the obligation of handling a certificate is an important form for the developer to bear the liability for breach of contract for overdue handling a certificate. In the final analysis, it depends on the nature of the right. If it is determined as the right of claim, the statute of limitations should be applied. If it is determined as the right of claim, it is generally not considered to be limited by the statute of limitations. In judicial practice, there are two differences of opinion on the nature of the right to request a certificate:

The first opinion is that in the housing sales contract, the transfer of the possession and ownership of the sold house is the main contractual obligation of the developer, even if the house has been delivered to the buyer for possession and use, but the developer only performs the obligation of transfer of possession, only produces the legal effect of transfer of possession and risk; the existence of the fact of possession can strengthen the buyer's claim, but the claim does not matter "real right attribute"; the registration act is the performance act, the real right act in the sale of commercial housing, and the legal effect of the right of claim on the property. Therefore, the act of requesting registration is the right to request a certificate, which is based on the claim and is a general claim. The right of claim belongs to the object of the application of the statute of limitations, so it should be adjusted by the statute of limitations system.

The second opinion is that the right to request a certificate is a right in rem and does not adapt to the statute of limitations. The agreement of the contract for the sale of commercial housing should be distinguished, the act of one party delivering the house to transfer possession, and the act of the other party accepting the house and paying the price, belongs to the creditor's rights contract, and the regulation of the statute of limitations should be applied. And for the developer to assist in the housing transfer procedures and other licenses of the agreement has a strong property rights, belongs to the property rights contract, the buyer has the right to the house in the property law, so the right to apply for a certificate is a right to claim, the statute of limitations does not apply.

Related cases:
1. Song Haiyu, Kaifeng Future Real Estate Development Co., Ltd. Commercial Housing presale Contract Dispute Retrial Review and Trial Supervision Civil Ruling (2020) Yu Min Shen No. 750
Henan Higher People's Court: Article 15 of the commercial housing sales contract involved in the case stipulates that the future real estate company shall, within 360 days after the commercial housing is delivered for use, report the information required by the future real estate company to the property rights registration authority for the record. The delivery time of the house involved is December 29, 2014, and the expiration date of the statute of limitations for late application is December 25, 2018. Song Haiyu's complaint submitted to the court of first instance will be signed on January 9, 2019. Therefore, the court of first instance found that Song Haiyu's claim for overdue certification had passed the statute of limitations and was not improper.

2. Guangzhou Hecheng Real Estate Co., Ltd. and Liu Zang's Civil Judgment of Second Instance on Disputes over Housing Demolition and Resettlement Compensation Contract (2019) Yue 01 Min Zhong No. 13957
Guangzhou Intermediate People's Court: Because the right to request a certificate is different from the general right to request a creditor's right, Liu Hsing and He Weirong's request for assistance in handling a certificate in this case has the attribute of real right. The application is not subject to limitation of action. Hecheng Company believes that Liu Hsing and He Weirong's application exceeds the limitation of action, and the reason is not established, and the court will not support it.

Summary:
In the judicial practice of our country, there are differences on whether the right to request a certificate is applicable to the statute of limitations, but through the search of the class case by our lawyers, it is found that most courts tend to find that the statute of limitations is not applicable. In this regard, our lawyers believe that because in practice, it is usually decided that the right to request a certificate does not apply to the statute of limitations, the developer cannot be exempted from the obligation to assist the buyer in handling the house property certificate due to the passage of the statute of limitations. In order to prevent disputes arising from such issues, the developer should Actively perform the obligation of assisting in handling the certificate within the time limit agreed in the contract, and assist the buyer in handling the title certificate.