What are the disputes over the purchase and sale of resettlement housing** and precautions?
Demolition and resettlement housing refers to the demolition due to urban planning, land development and other reasons, and resettled to the demolished person or tenant for residential use of the house, the resettlement house due to the completion of the actual delivery to the property right certificate for a long time, and because the resettlement object is a specific resettlement household, the sale of this type of housing is not only regulated by laws and regulations, but also subject to local policies, there is a long "sales restriction period". Therefore, after the two parties sign the house sale contract, they cannot transfer the property in time, and when the property rights are actually handled and the transfer conditions are met after a few years, the house price often rises sharply, so the seller's breach rate is quite high. Some sellers directly proposed to increase the price, and some sellers tried to prevent the contract from continuing to perform, so there were more disputes. This article provides a brief analysis of the disputes and precautions that are likely to arise in the sale and purchase of resettlement housing.
1. Is the house sale contract signed during the sale restriction period legally valid?
According to the current effective legal provisions and current judicial practice, in principle, the resettlement housing sales contract signed during the upper sales period is legally valid, and the transfer of ownership can only be obtained after obtaining the real estate certificate.
Case 1: A dispute over the confirmation of contract invalidity between Zhou, Wu and Li.
The court held that the "Resettlement Housing Sales Contract" stated that the house involved in the case was a demolition and resettlement house and that the plaintiffs Zhou and Wu had not obtained the house ownership certificate, and the parties clearly knew that the defendants Li and Wan had paid the corresponding purchase price to the plaintiffs Zhou and Wu in accordance with the agreement and had actually occupied and used the house involved in the case, so it could be determined that the signing of the "Resettlement Housing Sales Contract" was an expression of the true intentions of the parties. Paragraph 6 of Article 38 of the Law of the People's Republic of China on the Administration of Urban Real Estate: "The following real estate shall not be transferred: ......6) Failure to register and receive a certificate of ownership in accordance with law; ......The provisions of the law are provisions and restrictions from the perspective of changes in immovable property rights, rather than provisions and restrictions on contractual acts. The time limit for the listing and transaction of resettlement housing is to regulate this type of housing in terms of the transfer time, and it does not mean that such houses are not allowed to be traded. Therefore, the sale and purchase of the house involved in the case is not prohibited by national laws or laws and administrative regulations, and the fact that the house has not been registered with the property right does not affect the validity of the Resettlement Housing Sales Contract. The contract involved in the case does not have any invalidity as stipulated in Article 52 of the Contract Law, and should be legal and valid, and binding on the contracting party. Based on the principle of good faith, plaintiffs Zhou and Wu should perform their contractual obligations according to the contract. 2. Due to the house price**, what should I do if the seller asks the buyer to increase the price or not agree to the transfer?
Therefore, as long as the resettlement house obtains the property right and meets the conditions for the transfer, the buyer can sue the court to require the seller to perform the contractual obligations and does not need to pay the so-called house price ** fee beyond the contract, and after the court makes a judgment to support the buyer's claim for transfer, if the seller still does not cooperate with the transfer, The buyer can apply to the court for enforcement with the effective legal judgment, in which case the transfer can generally be realized without the signature and cooperation of the seller.
Case 2; The case of a dispute over a house sale contract between Wu and Lai 4 and Wang.
Lai4 argued that the contract for the sale and purchase of the house signed by the two parties was true, and the plaintiff had paid the house price 3770,000 yuan. However, combined with the transaction at that time** and the current house price, there are a large number of cases in the community where the buyer of the house makes up the difference and gives the seller. The defendant did not agree to transfer the ownership of the house until the plaintiff compensated part of the house price, otherwise, it did not agree to go through the transfer registration procedures.
The court held that the Resettlement Housing Sales Contract signed by the plaintiff and the defendant was true, legal and valid, and all parties should abide by it. The "Explanation of the Situation" provided by the plaintiff confirmed that the house involved in the case had met the conditions for handling real estate rights, and the defendant's failure to apply for the house ownership certificate and perform the transfer obligation in a timely manner constituted a breach of contract, and it should bear the obligation to continue to perform the transfer registration of the first house.
3. Can the seller refuse to transfer the ownership on the grounds that he agrees to pay liquidated damages?
This mainly depends on the attitude of the buyer. According to the law, in the event of a breach of contract by the seller, the buyer, as the non-breaching party, may request continued performance of the contract, or may choose to require the seller to pay liquidated damages, so if the buyer requires the seller to transfer ownership, even if the seller agrees to pay liquidated damages, it cannot be exempted from the obligation to cooperate with the transfer.
Therefore, in practice, it is a pity that some buyers compromise with the seller to meet the seller's request for a price increase or accept the seller's liquidated damages and waive the right to demand the transfer.
4. What should I do if the seller has died when the resettlement house meets the transfer conditions?
As long as the resettlement housing sales contract signed between the seller and the buyer before his death complies with the law and is the true expression of the intention of both parties, the content of the contract is legal and valid. After obtaining the property rights of the house involved in the case, according to the contract, the seller has the obligation to assist in the registration of the transfer of property rights, and the obligation to assist is a debt for the performance of specific acts. Even if the seller dies, if the seller's heirs inherit the property, they should also inherit the seller's obligation to the buyer to assist in the transfer, and if the heirs refuse to cooperate with the transfer, the buyer can sue the court to require the seller to cooperate with the transfer.
Case 3: The basic facts of the case of a dispute over a house sale contract between Li, Wu and Dai Basic facts:
On April 16, 2012, Mr. Li, Mr. Wu and Mr. Dai signed the Contract for the Sale and Purchase of Resettlement Housing, stipulating that Mr. Dai would transfer the house involved in the case to Mr. Li and Mr. Wu. On the day the contract was signed, Wu Moumou withdrew 135,000 yuan from his China Construction Bank account, and issued a receipt on behalf of Moumou, stating that "I received 135,000 yuan from Li and Wu Moumou for the unit number of the Yihe New Town District". The house involved in the case was obtained from the resettlement received by Dai XX from the Tong'an Sub-district Office on December 29, 2011. Dai Moumou, Dai Moumou, and Dai Dechang are siblings, Dai Moumou died of illness on March 13, 2015, Dai Moumou and Dai Dechang, as the second successors of Dai Moumou, handled the notarized inheritance of the house involved in the case in December 2018 at the Chengdu Longquan Notary Office, and applied for and obtained the real estate property right certificate of the house involved in the case with the (2018) Chuan Cheng Long Zheng Nei Zi No. 1 notarial certificate, the number is Sichuan (2019) Longquanyi District Real Estate Property No. 0.
The court held that the resettlement housing sales contract signed by Dai XX with plaintiffs Li and Wu XX before his death was an expression of the true intentions of both parties, the content of the contract was legal and valid, the plaintiffs Li and Wu had fulfilled their obligations to pay for the house, and Dai XX had delivered the house involved in the case to plaintiffs Li and Wu XX for possession and use. After obtaining the property rights of the house involved in the case, according to the contract, the agent has the obligation to assist in the registration of the transfer of property rights, and the obligation to assist is a debt for the performance of specific acts. Now, due to the death of Dai XX, the defendants Dai XX and Dai XX, as the heirs of Dai XX, should also inherit the debt owed by Dai XX to the plaintiff for the performance of specific acts in respect of the transfer of the property rights of the house involved in the case to the plaintiff's name when accepting the inheritance of the house involved in the case, so the plaintiff's request for the defendant to perform the obligation to assist in the transfer of ownership is based on law.
5. Due to the purchase restriction policy, what should I do if the buyer is not qualified to buy a house?
First of all, the buyer can actively make himself qualified to buy a house according to the relevant policies, and then request to buy a house and cooperate with the transfer according to the contract. If the buyer's qualification to purchase the house cannot be resolved, that is, the purpose of the contract cannot be realized, the sales contract can be terminated according to the relevant provisions of the Civil Code. At this time, if the purpose of the contract cannot be realized due to Party B's breach of contract, the breaching party shall still bear the liability for breach of contract, if the transfer could have been completed before the introduction of the purchase restriction policy, but the transfer procedures were not completed before the introduction of the purchase restriction policy due to the delay of one party's breach of contract, the party who delayed belongs to the breaching party and needs to bear the liability for breach of contract.
Case 4: Fang Moumou et al. v. Cao Moumou et al. Appeal case of a house sale contract dispute.
The court held that the Shanghai Real Estate Sale and Purchase Contract signed by the Appellant and the Appellee in respect of the property at issue was an expression of the true intentions of both parties, and its contents were legal and valid, and both parties should abide by them. The dispute in this case was whether the Appellee had the right to unilaterally terminate the contract. According to the contract, the parties should sign online and go through the tax review and transfer procedures within five working days after the Appellee obtained the small property certificate of the house at issue, and the Appellee obtained the property certificate in January 2017, and the property at issue had already met the conditions for listing and trading, but according to the purchase policy issued by the city in March 2016, the Appellant was still subject to purchase restrictions at that time, and the parties could not continue to perform according to the agreement under the objective conditions at that time, which was a failure to perform. According to the Court, "the purpose of the contract"It is integral, and in the contract for the sale and purchase of a house, the transfer of ownership and the registration of the transfer of ownership are the most important "contractual purposes"."This purpose can only be achieved if the seller and the buyer cooperate in performance, and the "purpose of the contract" should not be determined by the contractual status of the parties"Split apart. Therefore, the court upheld the first-instance judgment that the house sale contract involved in the case was unable to be performed in January 2017, and the purpose of the contract could not be realized, which was not contrary to the law. In addition, the reason for the failure to perform the above-mentioned contract was caused by the Appellant's own failure to meet the conditions for purchasing the house, and although there were factors such as changes in the city's housing purchase policy, the purchase of resettlement houses was inherently risky, and the Appellant should reasonably expect, prudently judge, and bear the risk, and it had no right to request the Appellee, who was not at fault during the performance of the contract, to extend the performance period of the contract. In April 2017, the Appellant still did not meet the conditions for purchasing a house, and the performance period agreed in the contract had already expired, and the Appellee already had the right to unilaterally terminate the contract at that time, regardless of the agreement between the parties or the provisions of the law. Although the appellant asserted that he had met the conditions for purchasing the house during the second instance of this case, the contract had been terminated in April 2017, so it was difficult for this court to support his claim for continued performance.
6. What responsibility should the seller bear when the seller breaches the contract and cannot transfer the property, and who belongs to the value-added part of the house?
If the seller's breach of contract results in the inability to transfer the property, if the right to resettle the property is not in the seller's name or the seller transfers the house to the name of another bona fide third party after the property right is settled, the seller does not have the right to dispose of the property, so the purpose of the buyer's request for transfer cannot be realized. In this case, the buyer can only require the seller to bear the liability for breach of contract, and at the same time, according to the mainstream opinion of current judicial practice, the part of the house appreciation should be counted as the buyer's loss, and the seller should also compensate the buyer.
Case 5: The second instance of a dispute over a house sale contract between Hu and Wang.
The court held that at the time of signing the contract for the sale and purchase of the house involved in the case, the purchase restriction policy had not yet been implemented, and Song Moumou should have the qualifications to purchase the house, and both parties should perform their obligations in accordance with the agreement. Judging from the performance situation, after Song Moumou paid the deposit and down payment according to the contract, Hu and Wang should go through the procedures for early repayment of the bank loan, but Hu and Wang failed to go through the procedures for early repayment of the bank loan, but instead caused a lawsuit because they failed to repay the loan on time, resulting in obstacles to the continued performance of the housing sales contract involved in the case and then causing a lawsuit. Therefore, the reason why the housing sales contract involved in the case could not be continued was due to Hu and Wang.
Hu and Wang's conduct has constituted a breach of contract, and they should bear the corresponding civil liability. Article 97 of the Contract Law of the People's Republic of China stipulates that: "After the contract is terminated, if it has not been performed, the performance shall be terminated;If it has already been performed, the parties may request restitution, take other remedial measures, and have the right to claim compensation for losses, depending on the performance and the nature of the contract." Now there is a factual and legal basis for Song Moumou to demand that Hu and Wang return the purchase price and pay the value-added losses. As for the loss of housing value-added, because the loss is a breach of contract loss, Hu and Wang should be liable for compensation.
7. Precautions.
Resettlement housing often does not have a property right certificate when buying and selling, and there are many people involved, the performance period of the sales contract is long, and the waiting time for transfer is long, which may involve many uncertain factors such as housing price fluctuations and policy changes, so the buyer needs to be more cautious when buying resettlement housing than buying other commercial houses.
1) Pay attention to verify whether the seller has the right of disposal.
For resettlement houses that have not yet been issued with the property right certificate, it is necessary to pay attention to verifying the compensation agreement for demolition and resettlement, confirm whether the seller is the resettled population, know which co-owners of the resettlement house for sale, and ask to check the other party's "Demolition and Resettlement Compensation Agreement" or "Resettlement Publicity Form" and other proofs. It is recommended that the compensation agreement for demolition and resettlement involve family members signing the resettlement housing sales contract, so as to avoid the seller's sales contract being valid, but unable to transfer the ownership because it does not have the ownership of the house.
2) The content of the house sale contract should be as detailed as possible.
The content of the sales contract is very important, it must be agreed in detail, and the terms of payment, delivery, transaction transfer, tax bearing, household registration, mortgage, breach of contract and other terms should be as comprehensive as possible, especially the setting of the default clause, which must be both legal and can restrain the other party's breach of contract, the liquidated damages are too high and the law will not protect them, and the agreement is too low to restrain the other party, so we must pay attention to the setting of the default clause.
3) Avoid their own breach of contract, pay attention to the transfer conditions, and put forward transfer requirements in a timely manner.
During this period, the buyer must fulfill his contractual obligations in accordance with the contract, and at the same time, the buyer must pay attention to the transfer conditions, once the transfer conditions are met, the transfer requirements should be put forward as soon as possible, and legal measures should be taken if necessary to prevent the seller from transferring the house to other people's names, resulting in the seller's request for transfer of the purpose can not be realized. The law is always the backer of the victims. The law only protects those who know the law, and to understand the law, you need to study or buy services yourself. I am a lawyer, if you need help, you can call us to inquire and answer for you in detail.