In the past two years, the transaction price of commercial housing has been high, and many buyers have set their sights on the second-hand housing trading market. With this comes a significant increase in "yin and yang contracts", have you stepped on the "thunder"?
Typical cases
In order to sell his idle house, Zhang entrusted a real estate intermediary company to list it for sale. After the plaintiff Gong saw the housing information, he contacted the real estate intermediary company to express his intention to purchase. After being informed by the real estate agent, Zhang led Gong to see the house, Gong expressed his willingness to buy, and agreed on a transaction price of 720,000 yuan, and then Gong signed a "Transfer Agreement" with a real estate intermediary company.
Two days later, when the plaintiffs Gong and Zhang registered the transfer of the house, they filled out a copy of the "House Sale and Purchase Contract" of the house according to the requirements of the trading center. The plaintiff and the defendant real estate intermediary company wrote the purchase price as 550,000 yuan in order to pay less tax. After completing the transfer registration procedures for the house, the plaintiff Gong Mou sued that the Transfer Agreement was invalid, requested the court to confirm the validity of the House Sale and Purchase Contract, and ordered the defendant to refund the overcharged house payment of 170,000 yuan.
Court judgment
The "Assignment Agreement" signed between the plaintiff and the defendant real estate intermediary company is the true intention of the two parties, and both parties have actually performed, and the house has been transferred to the plaintiff's name, and the agreement should be legal and valid. As for the "Housing Sale and Purchase Contract" signed by the plaintiff and Zhang Mou, it was concluded during the transfer formalities between the plaintiff and the defendant real estate intermediary company in order to perform the transfer agreement, and the two parties set the house price at 550,000 yuan in order to pay less tax, and the contract was not actually performed, which was not the true intention of the parties, and harmed the interests of the state, so the contract was invalid.
Explain the law and reason
Zhang Qiangfei, a lawyer at Henan Yucui Law Firm, believes that Article 146 of the Civil Code stipulates that civil juristic acts carried out by actors and counterparts with false expressions of intent are invalid. The "Assignment Agreement" in the above-mentioned case is the embodiment of the true intention of the parties to the "yin" contract, and there is no statutory invalidity, so it takes effect when it is established. The "Contract for the Sale and Purchase of Housing" is a "yang" contract, which is a false factual representation by both parties, which violates the mandatory provisions of the law and is therefore invalid.
Signing a "yin and yang contract" in the sale and purchase of a house has the following risks for buying a house: 1. the risk of determining the true intention; 2. the risk of not being able to obtain a high loan; 3. the risk of re-selling to bear high taxes and fees; and 4. the risk of not establishing the contract.
There are also risks for sellers: 1. the risk that the sale and purchase contract may be confirmed as invalid; 2. the risk that the house price will not be recovered in full. At the same time, buyers and sellers may also be exposed to administrative penalties and criminal prosecutions.
In recent years, the chaos of "yin and yang contracts" has emerged in an endless stream, involving all walks of life. The "yin-yang contract" may not only bring economic losses and litigation burdens to individuals, but also damage the state's tax revenue, shake society's confidence in honest management, performance and tax payment, and disrupt the market economic order. Here, we advocate that everyone sign contracts in accordance with laws and regulations, and do not take chances.
Source: Sanmenxia Daily