After someone buys a house, it is often the case that the buyer shelves the property without registering the property rights and does not actually occupy and use it. Once a real estate developer is involved in other civil lawsuits, resulting in the seizure and execution of the property it develops, it will affect the rights of the buyer. At this time, the buyer believes: I have paid the full amount, the house should belong to me, and cannot be executed due to other debts of the developer. The third-party creditor claimed: Because the developer has not registered the property rights for anyone, according to the principle of property rights registration, it still belongs to the developer and should be enforceable.
In such a case, once the court allows enforcement, the property on which the purchaser has paid full or partial payment will be enforced to others to cover the debt, making it impossible for the buyer to obtain the property purchased, resulting in huge losses. Article 16 of the Minutes of the National Civil Trial Work Conference of the Supreme People's Court in Hangzhou in 2011 stipulates: "Where several contracts for the sale and purchase of houses are legal and valid and each buyer requests to perform the contract, the order of protection of rights shall be determined in the order in which the registration of the transfer of ownership of the house has been handled, the legal possession of the house, and the order of formation of the sale and purchase contract shall be determined." To determine the time of formation of the sales contract, a comprehensive consideration should be given to the time when the contract was filed with the competent authority, the time of signing the contract specified in the contract, and the time of signing the contract proved by other evidence. During the period of advance notice registration, without the consent of the right holder of the advance notice registration, the disposition act committed by the owner of the house shall not be opposed to the right holder of the advance notice registration. ”
Although this meeting minutes are not legal provisions and judicial interpretations, when courts at all levels hear cases of disputes over real estate sales contracts, they should refer to the principle of this meeting minutes to make judgments. That is to say, the validity of unregistered real estate in this "Meeting Minutes" should be determined in accordance with the order of registration, legal possession, and the order of formation of the sale and purchase contract. At the same time, the priority rights of the advance registrant are determined.
This "Meeting Minutes" and the "property rights registration" provisions of Article 9 of the Property Law have been guiding the confirmation of property rights in real estate sale disputes until the implementation of the Civil Code. However, after the promulgation and implementation of the Civil Code, there have been some changes in the law.
Article 208 of the Civil Code stipulates: "The establishment, modification, transfer and extinction of rights in immovable property shall be registered in accordance with the provisions of law. ”
Article 209 stipulates that "the establishment, modification, transfer and extinction of rights in immovable property shall take effect upon registration in accordance with law; It is not registered and has no effect, unless otherwise provided by law. ”
Article 214 stipulates: "Where the establishment, modification, transfer and extinction of a right in immovable property shall be registered in accordance with the provisions of law, it shall take effect when it is recorded in the immovable property register." ”
The above three laws stipulate that there is no change in principle from the registration principle stipulated in the original Property Law, that is, the registration of property rights is a condition for entry into force.
Article 215 A contract between the parties concerning the establishment, modification, transfer and extinction of the right to immovable property shall take effect from the time of conclusion of the contract, unless otherwise provided by law or otherwise agreed by the parties; Where the registration of property rights has not been carried out, the validity of the contract shall not be affected. ”
Although this provision stipulates that "if the property right is not registered, it shall not affect the validity of the contract." ", but does not affect the validity of the contract here means that the rights and obligations established between the parties in accordance with the contract are still valid, and the "validity" here only binds the parties to the contract and does not replace the principle of "property rights registration".
Article 221 Where a party signs an agreement on the sale and purchase of a house or an agreement on other rights in immovable property, in order to ensure the realization of the property right in the future, it may, in accordance with the agreement, apply to the registration authority for advance notice registration. After the registration of the advance notice, the disposition of the immovable property without the consent of the obligee of the advance notice registration shall not have the effect of the property right. If, after the registration of the advance notice, the creditor's rights are extinguished or no application for registration is made within 90 days from the date on which the registration of the immovable property can be carried out, the advance notice registration shall become invalid. ”
This provision is very important, that is, if the purchased property cannot be registered, but can be registered in advance, "after the advance registration, without the consent of the obligee of the advance notice registration, the disposal of the real property will not be effective." "In effect, priority is given to advance notice registration.
Paragraph 2 of Article 641 of the Civil Code stipulates: "The seller's retention of ownership of the subject matter shall not be used against a bona fide third party without registration." ”
This provision is worth learning from all buyers, the purchase of real estate is not registered, in fact, the seller still enjoys the ownership of the property, if not registered, it is not resistant to "bona fide third party", referring to the third party to buy in good faith or the third party through legal procedures to exercise civil rights in the unregistered property.
According to the above legal provisions, it can be made clear that the parties have purchased the developer's built property by signing a contract and paying money, and if the real estate is not registered in time, the property still belongs to the seller in the legal sense. If another bona fide third party claims rights in the property, the law protects the rights of the bona fide third party. According to the above provisions: The parties have paid the purchase price in full, and they only have the right to request the development company to perform the relevant contractual obligations in accordance with the Contract for the Sale and Purchase of Commercial Housing, and do not enjoy the ownership of the house.
The judgment rendered by the Supreme People's Court of the People's Republic of China (2020) Supreme People's Court Min Zhong No. 580 Civil Judgment on the enforcement objection case between Kong Mou and Great Wall Xinsheng Trust Co., Ltd. and Inner Mongolia Bank of China Real Estate Group Co., Ltd. deserves the attention of all buyers.
Kong paid the full amount of money to purchase six properties developed by BOC Real Estate Company, but did not register the property rights, nor did he actually occupy and use it, and the real estate did not incur the related expenses of actually using the property.
Xinsheng Trust Company applied to the court on January 20, 2015 for property preservation of the land use right of Hu Guoyong (2008) No. 00137 under the name of BOC Company and the related real estate located in Saihan District, Hohhot, Inner Mongolia, due to a contract dispute with BOC Real Estate Development Company, Yang Yansen, Zhao Xin and Huaxia Company, and the scope of the 20-storey seizure was the entire floor of the property No. 1-25, including 6 properties purchased by Kong.
Kong raised an enforcement objection to the preservation act applied for by Xinsheng Trust Company, and after trial, the court rejected Kong's application for enforcement objection, and Kong filed an enforcement objection lawsuit with the court, and the court ruled to reject Kong's litigation claim, confirming that Kong was not sufficient to enjoy the litigation right to exclude enforcement. Kong was dissatisfied with the judgment of the court of first instance and appealed to the Supreme People's Court.
After trial, the Supreme Court held that the focus of the dispute in this case was whether Kong had sufficient civil rights and interests in the real estate involved in the case to exclude the people's court from enforcing.
According to Article 28 of the Provisions on Enforcement Objections and Reconsiderations, although Kong and BOC had signed a written Contract for the Sale and Purchase of Commercial Housing and paid the purchase price in full, before the delivery time of the contract was May 1, 2015, that is, on January 20, 2015, the enforcement court had taken measures to seize the property involved in the case, and before the court seized it, Kong did not legally occupy the property, let alone go through the relevant real estate registration procedures, which did not meet the provisions of the case. The first-instance judgment did not support Kong's litigation claim to exclude enforcement on this basis, and the factual and legal basis were sufficient and there was nothing wrong with it.
The Supreme Court found that the "Contract for the Sale and Purchase of Commercial Housing" signed by Kong and the Bank of China Company stipulated that the purpose of the real estate involved in the case was "only for commercial use" and not for residence.
Kong's appeal claimed that his purchase of the above-mentioned real estate was for residence, which contradicted the use of the house as set out in the Contract for the Sale and Purchase of Commercial Housing, and also contradicted his act of purchasing six houses at one time, and in the second-instance trial, Kong claimed that his habitual residence was in Yinchuan City, Ningxia Hui Autonomous Region, not Hohhot City, according to which this case also did not meet the circumstances stipulated in Article 29 of the Provisions on Enforcement Objections and Reconsiderations, and Kong's claim that the application of this provision to exclude the court's compulsory enforcement of the appeal grounds could not be established, and this court did not support it.
In addition, according to Article 9 of the Property Law of the People's Republic of China (the Civil Code was not implemented at the time of the trial and judgment of the case, the author notes. Because the house involved in the case had not been registered for the transfer of ownership, Kong only enjoyed the right to request that BOC perform its relevant contractual obligations in accordance with the Contract for the Sale and Purchase of Commercial Housing, and did not yet enjoy the ownership of the house involved in the case, so the court of first instance did not support his claim to confirm the ownership of the property involved in the case, and there was nothing wrong with this court, and this court upheld it. In the end, the court rejected Kong's appeal and upheld the original judgment.
This judgment is very meaningful and reminds all home buyers to pay attention to the following:
First, after purchasing a commercial house or another person's real estate, it is necessary to register the real estate in a timely manner, and if the registration fails for a while, it is also necessary to perform the relevant real estate registration procedures. These formalities can prove that failure to register immovable property is not the fault and fault of the purchaser. This is the direct and primary evidence for determining the rights of the purchaser in the event of a title dispute or enforcement objection in the future.
Second, after purchasing a commercial house or someone else's real estate, if you cannot register the real estate for a while, you must go through the advance registration of the purchase and sale of the house. Because "after the registration of the advance notice, without the consent of the obligee of the advance notice registration, the disposal of the real property shall not be effective." If, after the registration of the advance notice, the creditor's rights are extinguished or no application for registration is made within 90 days from the date on which the registration of the immovable property can be carried out, the advance notice registration shall become invalid. "After the advance notice registration, we must pay attention to when the property rights can be registered, which is crucial for the purchaser.
Third, after purchasing a commercial house or another person's real estate, if neither the real estate registration nor the advance notice registration can be applied for, it is very important to occupy the purchased property in accordance with the law and make it incur the expenditure of housing usage fees. In our judicial trials, there is a principle of "actual possession" when determining ownership of such houses. This physical possession must be within a reasonable period of time after the purchase of the home and not after a third party has made a claim against the property. That is to say, when the court confirms the fact of actual possession, it must presuppose lawful possession, and the court will not support malicious possession. The expenditure voucher that can prove the actual occupation period, the expenditure voucher for the use of water, electricity, property, etc. during the use of the house is the most important evidence.
In addition, in judicial practice, there is also a trial principle to note that if the parties purchase a residence, generally take actual residence as the principle of confirming ownership, if there is no actual residence, and the parties have other residences in the same area, this claim is likely not to be supported by the court. Because, in the trial of such enforcement objection cases, the proportion of recognition and protection of the only dwelling in the court is extremely large, and it can never be ignored.
Based on the author's analysis, friends can see that the main reason why Kong lost the lawsuit and caused personal losses was that the purchased property was neither registered as real estate, nor registered in advance, nor was it occupied and used, and in this case, Kong's litigation claim on the grounds that he had purchased a residence did not conform to the facts after trial, and finally the appeal was rejected by the Supreme Court. The lesson is extremely painful.