On the distinction between the validity of contract and the validity of real right and the prevention of "one room selling more" by advance notice registration

Case: A developer sells a house to B, and the contract stipulates that it will not be delivered within the time limit, and the developer will bear a penalty of 50,000 yuan. After the signing of the contract, developer A failed to go through the registration formalities in the real estate management department; After that, A sold the same house to C and went through the registration formalities.

Issues involved in this case:

1. If Party B fails to go through the registration formalities after signing the contract, will the house sales contract become effective? Can Party B's request for Party A to bear liquidated damages be supported?

2. Can Party B claim that the contract between Party A and Party C is invalid? B and A sign the contract first, and C signs the contract later, but C has gone through the registration formalities, so does C enjoy the real right to the disputed house?

3. How should Party B protect its rights in case of similar situation in the future?

This problem involves the distinction between the validity of contract and the validity of real right, and the prevention of "one room selling more" by advance notice registration.

Legislative background:

The situation of buying and selling houses between the parties is more complicated. If registration is an effective requirement of the contract, then if the registration formalities are not completed due to the seller's reasons, after the house price rises, the seller may demand that the contract be invalid and return the house on the grounds that the contract is invalid without registration, which may damage the interests of bona fide buyers. Especially in the case that the house has been delivered and the buyer has renovated the house, if the contract is confirmed to be invalid and the house is returned without registration, it may hinder the existing property order. In addition, if the contract is invalid due to failure to register, the non-breaching party will not be able to ask the breaching party to bear the liability for breach of contract. This phenomenon can be avoided if the validity of contract and registration is strictly distinguished and the pre-registration system is established.

Analyze this case:

Article 15 of the Property Law stipulates that the contract concluded between the parties on the establishment, alteration, transfer and elimination of the real right of immovable property shall take effect upon the establishment of the contract, unless otherwise stipulated by law or the contract; Failure to register the real right shall not affect the validity of the contract. In fact, the following viewpoints are clarified: after the two parties conclude a real estate sales contract, the contract has come into effect, and the ownership of the house cannot be transferred without going through the registration procedures; If a party to a contract violates the contract, it shall bear the liability for breach of contract.

At the same time, Article 20 of the Property Law stipulates: "In order to ensure the realization of future property rights, the parties may apply to the registration agency for advance notice registration as agreed. After the advance notice registration, if the right holder without advance notice registration agrees to dispose of the real estate, the real right effect will not occur. " What is registered in advance notice is not the real right of real estate, but the right of claim for the change of real right of real estate in the future. The provisions of the Property Law on advance notice registration make the registered creditor's rights have the effect of real right, that is to say, the creditor's rights with advance notice registration have the antagonistic effect on the subsequent disposition with the same content as the creditor's rights. In this way, the registered creditor's rights are protected, and the buyers will be able to obtain the agreed houses, which plays a special role in preventing the sale of one room and two houses in commercial housing sales.

In this case, the contract signed by both parties is the expression of the true meaning of both parties. Although there is no registration procedure, it only shows that property rights cannot be changed. According to Article 15 of the Property Law, the contract signed by Party B and Party A has come into effect; Party B supports Party A's request to assume the liability for breach of contract, and orders Party A to pay a penalty of 50,000 yuan and compensate Party B for the actual losses. Similarly, the house sales contract signed by Party A and Party C is valid, and the ownership of the disputed house belongs to Party C due to registration. In order to avoid one room and two sales, B shall apply to the registration agency for advance notice registration after signing the purchase contract with the developer in the future. After the advance notice registration, if the developer sells the house again, although the contract signed with the buyer may be valid, it has no real right effect.

Second, cases involving bona fide acquisition.

Case: A and B couples. Both parties bought the villa after marriage, but the owner on the real estate license was registered as A. After the relationship between husband and wife deteriorated, A sold the villa jointly owned by husband and wife to C privately. After consulting the register of the real estate registration department and confirming that Party A is the owner of the house, Party C signs a contract with Party A. After the contract is signed, Party C pays the house price, and both parties go to the registration agency to register the house. After learning about this, Party B took Party C to court, arguing that Party A had no right to dispose of the property jointly owned by husband and wife, and the property transfer contract signed between Party A and Party C was invalid, and Party C should return the property.

Possible consequences before the implementation of Property Law;

Article 51 of the Contract Law stipulates that after a contract is concluded by a person who has no right to dispose of another person's property, the contract is valid if it is ratified by the obligee or the person who has no right to dispose of it obtains the right to dispose of it. In the past, if the person who had no right to dispose of other people's property and the obligee refused to ratify it, the contract was invalid. Therefore, before the implementation of the Property Law, the court may decide that the contract signed by Party A and Party C is invalid.

After the implementation of the Property Law, the judgment will be overturned:

Article 106 of the Property Law stipulates that "the transferee shall acquire the ownership of the real estate or chattel if it meets the following circumstances: (1) the transferee accepts the real estate or chattel in good faith; (2) Transfer at a reasonable price; (3) The transferred immovable property or movable property that should be registered according to law has been registered, and the transferred immovable property or movable property that does not need to be registered has been delivered to the transferee. If the transferee obtains the ownership of real estate or movable property in accordance with the provisions of the preceding paragraph, the original owner has the right to claim compensation from the unauthorized person. "

This provision of the Property Law is about bona fide acquisition. The conditions for bona fide acquisition are: 1. The transferee must be in good faith and does not know that the transferor has no right to dispose of the person. 2. The transferee paid a reasonable price. 3. The transferred property has been registered (such as real estate), and the property that does not need to be registered has been delivered to the transferee (such as goods). Three conditions must be met at the same time, otherwise it does not constitute bona fide acquisition. Acquisition in good faith applies to both immovable property and movable property.

In this case, since Party A and Party B are husband and wife, and the property owner registered on the property right certificate is Party A, according to the effective principle of real estate registration stipulated in the Property Law, Party C has every reason to believe that the property owner on the property right certificate has the right to dispose of the property, so it meets the conditions of bona fide acquisition; Second, C paid a reasonable price for the property; Third, the registration of property rights has been completed, which fully conforms to the provisions of the property law on bona fide acquisition, and C has obtained the ownership of the house. The court may decide to reject B's request for C to return the property.

Of course, B's rights cannot be guaranteed. According to the Property Law, it has the right to demand compensation from Party A, and Party A should regard the money transferred from the property as the same property as Party B's husband and wife, not as its own property.

Third, mortgage cases.

Case: A real estate company (hereinafter referred to as Company A) has reached an agreement with Construction Company B (hereinafter referred to as Company B) to build a commercial house for Company A. According to the contract, the total amount of the subject matter is 60 million yuan, and the project will be completed within 8 months. If either party breaches the contract, it will pay a penalty of 20% of the total contract amount. After the signing of the contract, Company A borrowed 30 million yuan from Bank A with its construction land use right as collateral to raise funds for the project construction, and Company B assumed the guarantee responsibility for the loan, but no guarantee method was agreed.

Without the consent of Company A, Company B entrusted part of the construction tasks to Construction Company C, which was jointly funded by Zhang, Li and Wang. During the construction process, worker Liu accidentally dropped the bricks in his hand, seriously injuring pedestrians passing by the construction site, and spent 5,000 yuan on medical expenses.

Company A will carry out the pre-sale of commercial housing immediately after the start of construction. Ding bought | method; Law/Education Our website remits General Manager H to Building 65438 10 1 room, and pays 50,000 yuan in advance as a down payment. But soon, Company A signed a contract with Wang to sell the above-mentioned house to Wang, and after the house was completed, the property right certificate of the house was handled by Wang. Wang doesn't know the fact that the house has been sold to Ding.

After Wang checked in, the whole family had skin itching, tears, dizziness and other discomfort. After testing, it was found that indoor formaldehyde and other chemical indicators seriously exceeded the standard. However, there is no clear agreement on chemical indicators in the purchase contract.

Because Company A can't repay the loan of Bank A, Bank A wants to exercise mortgage on the commercial house developed by Company A. ..

Question:

5. If Bank A exercises the mortgage, what is the subject matter of its rights? How does bank a realize mortgage?

Answer: The subject matter mortgaged by Bank A is land use right, excluding commercial housing. The Property Law stipulates that after the right to use construction land is mortgaged, the new buildings on the land are not mortgaged property. When Bank A realizes the mortgage, it can dispose of the commercial house together, but it can't be compensated in priority with the price of the commercial house.

6. After learning that the house had been sold to the Queen, Ding filed a lawsuit with the court, demanding that Company A fulfill the contract and deliver the house. Should his ideas be supported? Why?

A: No, because Wang has obtained the ownership of commercial housing, and the registration of real estate is the basis for the change of property rights.

Fourth, attach a case

Case: The seizure of movable property and immovable property in this case.

Both Party A and Party B are employees of the same unit and both live in public houses. Later, the unit made a major adjustment to the public housing, redistributed a set of public housing (two bungalows with a yard) where Party B lived to Party A, and handled the real estate license for Party A. Because when B lived in public housing, he took another room after two and a half rooms, so the dispute appeared: A said "I have a real estate license" and asked to move in, while B said "I built the house here myself" and refused to hand over the house, so both parties resorted to the court.

Comments:

Party B builds a house on the land in Party A's courtyard, and the house is attached to the land used by Party A. The ownership of the house is inseparable from the land use right and cannot be different from its owner. Therefore, in this case, the house should be owned by the land use right holder. Party A obtains the ownership of the house because Party B's property is attached to the land used by Party A, so although Party A can obtain the ownership of the house, it should compensate Party B. ..

The focus of the dispute in this case is the attribution of appendages. Regarding the ownership of attachments, according to the general principles of China's civil law, the parties may negotiate on the ownership of attachments. If the parties have an agreement on the ownership of the subject matter, the ownership of the attached object shall be determined according to their unanimous opinion. However, if the parties fail to reach an agreement through consultation, the ownership of the attachment shall be determined according to the specific circumstances of the attachment.

Things can be divided into movable property and immovable property, and attachment includes attachment of movable property and immovable property, attachment of movable property and immovable property and attachment of immovable property. The attachment of chattel to chattel means that two chattels are attached together. Naming: Put someone else's tires on the bike and one person's jewelry on another person's ring. When movable property and movable property are attached, the owner of the main property or the owner of the valuable property obtains the ownership of the compound. If the attachments can't distinguish between master and slave, or the value is equal, the compound should be owned by the original owner.

The attachment of real estate to real estate means that one real estate is attached to another real estate to synthesize one thing. The attachment of real estate and non-production will hardly happen in China. In our country, the construction of buildings on land must be approved by certain procedures, and the premise is to obtain land use rights. If the land use right is not obtained, the ownership of the building cannot be obtained. Naming, if the building is added, if the builder can obtain the ownership separately with the approval of the relevant departments, there will be no attachments; Without the approval of the relevant departments, the owner cannot obtain the ownership of the building, so he has no right to the newly added building. In this case, it should be regarded as an appendage of movable property (building materials) and real estate. It can be seen that if a house is built on land owned or used by others, the builder cannot obtain the property right of the house.

No matter what kind of attachment, it is to change the original form into something new and increase the economic value of the thing. In this case, if it can be restored after painstaking efforts, or if it is inconvenient and uneconomical, it should not be restored, and one party should obtain the ownership of the new formation. The result of attachment is that one party's ownership is expanded and the other party's ownership is lost. Although this is necessary in social economy, it is unfair to the party who loses ownership. Therefore, starting from the principle of fairness, the party that has suffered losses due to seizure may ask the party that has gained benefits to return the benefits it has gained.

When the seizure occurs, if the party who loses the ownership requests the party who obtains the ownership to return the benefits, the provisions of the unjust enrichment law shall apply. Because, in order to avoid economic waste, the court stipulates that one party obtains the ownership of the attached, mixed and processed things, but the party does not obtain more benefits than the original ownership, and the party that loses ownership does not lose its interests. There is a causal relationship between the interests of the party with expanded ownership and the losses of the party that loses ownership. Therefore, the relationship between the two sides is a debt of unjust enrichment, and the party who suffers losses has the right to demand the party who gains benefits to return the benefits it has gained. Of course, the return of this interest is not the return of the original things and fruits, but the return of the interests increased by obtaining the ownership of other characters.

Judging from this case, Party B has built a house on the land used by Party A ... As mentioned above, the land use right is consistent with the ownership of the house and can only be owned by the same person, so Party B cannot obtain the ownership of the house it has built. Therefore, in this case, when building a house on someone else's homestead, movable property and real property were attached, that is, Party B's building materials were attached to Party A's homestead. Since movable property is attached to real estate, the owner of real estate obtains ownership. Therefore, the wing built by Party B within the scope of Party A's homestead belongs to Party A. However, in the annex, the party that obtained the ownership has no basis for obtaining benefits, and the losses it caused to others should be returned within the scope of benefits, so Party A should return the improper benefits it obtained to Party B, which should be the cost of building and the corresponding labor remuneration.

In addition, I recommend two cases of property law:

1, Title: Case Course of Property Law (Case Teaching Material for Higher Education Law Major)

Author: Fang Zhang Hongbo

Press: Intellectual Property

2. Essentials of New China Property Law and Case Interpretation, 2nd Edition Author: Li Xiandong Law Publishing House.