In our country, the law has never been a cold rule clause, but a social minimum norm with humanistic care, soEven when we are faced with the old lai, we will demand that the basic living conditions of the old man be guaranteed, and the old man will not lose the ability to live because of the repayment of debts.
For this reason, under normal circumstances, if there is only one single house in the name of the lai, then the court will not enforce the house. However, there are lawbreakers who use the warmth of the law to seek their own personal interests, so the state has introduced laws and regulationsAs long as the debtor and the creditor meet certain conditions, then the house can be enforced even if it is the only home in the debtor's name, which is used to repay the legal property of the creditor.
Next, Brother Mata will tell you about what is the only housing? What is not considered a sole home? How do I perform a unique home? How to ensure the basic survival of debtors after enforcement? and how the security will be disbursed.
Friends who haven't followed Brother Mata can like and follow Brother Mata. If you have a loan dispute with an amount of more than 1 million yuan, and the appellate court is in Chengdu, you can tell your story to Brother Mataand may be able to help you.
1. The only house
What is Sole Housing? That is, if the creditor has only one house in his name, and there is no house in the name of his children and spouse, it is the only house.
Article 7 of the Provisions of the Supreme People's Court on the Sealing, Seizure and Freezing of Assets in Civil Enforcement by the People's Courts providesThe people's court may enforce the housing that exceeds the necessities for the livelihood of the person subject to enforcement and the family members he supports.
That is, in debt disputes,In the course of enforcement, the court should give priority to the retention of housing, and it is not appropriate to take dispositional enforcement measures against the only residential house.
It should be noted that it is mentioned in the relevant answers issued by the Zhejiang Provincial High People's Court on the determination of sole housing and how to enforce it"The enforcement of sole housing is limited to urban housing, and rural housing involving rural collective land and small property rights housing involving national policies should be implemented in accordance with relevant provisions and are not within the scope of this answer. ”
In the process of enforcement by the court, the determination of the sole house does not mean that there is only one house in the name of the creditor and the name of the family, and this house is the only house that is not subject to priority enforcement. The Zhejiang Provincial High Court has summarized six situations that cannot be identified as the only housing.
The first is that after a first-instance litigation or arbitration case is filed and accepted, if the debtor transfers the surplus house in his name so that only one house is left in his name, the court will not recognize it as the only house.
The second is that although the person subject to enforcement has only one house in the town, but the local rural area (including county-level cities, counties, and districts) has a homestead and builds a house on his own, the court will not recognize it as the only house.
The third is that although the person subject to enforcement has only one house in his name, and there is no house in the countryside, and there is no surplus house, he goes to rent or lend this house, in this case, the court will not recognize it as the only house.
Fourth, if the house is a house that the person subject to enforcement and his or her dependents have not lived in for more than one consecutive year, it is not the only house；In addition, if the house is the subject matter of the debt in the enforcement case, and other laws and regulations provide otherwise, it is not considered the only house recognized by the court.
In addition, it should be noted that it does not mean that as long as it is the only dwelling, the court will have preferential treatment when enforcing itIf the sole dwelling is more than is necessary, the excess will also be enforced.
2. How to execute
Suppose, if the only housing of the person subject to enforcement is a single-family villa, or a super flat of hundreds of square meters, then it is unreasonable for such a house to enjoy the preferential policy of the only housing?
Therefore,If the housing area exceeds 80 square meters, or the housing area is less than 80 square meters, but exceeds more than 50% of the housing area necessary for the person subject to enforcement and his dependents to maintain the minimum living standard (according to the relevant provisions of the local low-rent housing guarantee), it will be enforced.
At the same time,If the area of the house where the person subject to enforcement and his dependents live together exceeds 60 square meters, and the unit price of the house is more than 50% of the average price of the local housing, it will also be enforced.
If the house of the person subject to enforcement does meet the requirements of the sole residence, and the area does not exceed too much, can the court deal with the sole residence of the person subject to enforcement?
Article 20 of the Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts provides:"The applicant for enforcement provides residential housing for the person subject to enforcement and his or her dependents in accordance with the local standard for the guaranteed area of low-rent housing, or agrees to deduct five to eight years' rent from the price of the house with reference to the average rent standard of the local housing rental market. ”
In addition, in 2019, the Zhejiang Provincial High Court also mentioned how to solve temporary housing when implementing "one housing".
In order for the house to be delivered smoothly after the auction, thenBefore the auction, it is necessary to solve the problem of temporary housing, and the area should not be lower than the per capita standard of local low-cost housing, and the reasonable requirements of the person subject to enforcement should be met as much as possible according to their living and working needs.
The feasible plan is: 1. The applicant for execution voluntarily provides temporary housing for a period of not less than six months; 2. The person subject to enforcement shall rent the house by himself, and the applicant shall pay the rental fee for no less than one year in advance.
That is to say, if all conditions are met, if the court wants to enforce the only housing of the person subject to enforcement, it will either provide housing for the person subject to enforcement, or deduct 5 to 8 years' rent from the house auction proceeds for the person subject to enforcement for excess. During the auction period, if the house needs to be vacated, the applicant is required to provide housing, or pay the rental fee for no less than one year in advance to the person subject to enforcement.
If the person subject to enforcement vacates on time, the guarantee fee can be appropriately raised, which is generally within the range of 10% of the total guarantee fee.
In cases where the applicant for enforcement has difficulties in living due to disputes over tort liability, recourse to labor remuneration, etc., and failure to enforce the case will affect his right to survival, the people's court may, at its discretion, reduce or not pay the security fee, but shall retain the rental fee for not less than one year to the person subject to enforcement.
When the court auctions the only house, the applicant needs to promise to provide security fees, temporary housing or temporary housing rent, etc.; The court has to ascertain the condition of the house and give a notice to vacate it; If the person subject to enforcement refuses to vacate the vacancy, the court may enforce it;
In other words, as long as the protection of the person subject to enforcement can be effectively put in place, then even if it is the only house, the court can auction it!
3. Finally, I want to say
Although the sole home can be auctioned, in real life, we can encounter relatively few cases where the sole home is executedMore often than not, debtors maliciously transfer assets through divorce, gifts, etc., so that they have a penny in their names.
For those who are not aware of the malicious transfer of assets, you can take a look at this tweet:"Lao Lai maliciously transferred assets, divorced and gifted, creditors must deal with it like this!" 》
In addition, in today's social environment, if there is no malicious transfer of assets, the debtor is also trying to repay the money as much as possible. Then, for the only housing in the other party's name, in the case that the creditor's own influence is not particularly large, Brother Yu still suggests that everyone can help if they can.
The law is the minimum standard for maintaining social order, and in addition to the law, there should also be human feelings! However, for those who transfer assets in bad faith, creditors should protect their rights and interests as much as possible.
Finally, there is a solution that may be helpful for a friend who is really desperate, that isIf the court of appeal is in Chengdu, and the amount owed by the other party exceeds 1 million, and the application for enforcement has been more than 3 years, but there is still no effect. Brother Mata suggested that you can tell Brother Mata the story, teach you the ** old man.
In fact, from the moment we lend money, we must be prepared for a long-term battle, and we must not only put our hopes on the court, which is only a adjudication body after all. You must train yourself to be a super **, and only by being able to grasp the evidence of the other party's real assets can you help yourself get back the money that belongs to you. When lending funds, you must control the total amount and never affect your life because of borrowing.
Finally,Friends who haven't paid attention to Brother Mata yet, you can hurry up and follow Brother Mata! Friends in need, you can also like, favorite, ** this tweet.
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