Ningbo premarital mortgage house agreement has not been transferred can be revoked

One party mortgage to buy a house before marriage, after marriage, the husband and wife agreed in writing that the house is common property, but did not handle the registration of property rights change, divorce, whether the investor can go back on the grounds that "the gift can be revoked without transfer", the answer depends on the legal nature of this written agreement. If it belongs to the marital property agreement in the sense of Article 1065 of the Civil Code, it will be legally binding on both parties from the date of signature, and whether or not to handle the transfer does not affect the validity of the agreement itself.

On the other hand, if the essence of the agreement is that one party gives the property owned by itself to the other party, or if the agreement is shared by both parties and the house does not contain common property elements such as joint repayment of loans after marriage, it may fall into the donation revocation rule of Article 32 of the Interpretation (I) for Marriage and Family, and the investor's claim for revocation before transfer may be supported. Therefore, the starting point of judgment is not "whether there is a transfer", but "what is the agreement".

1. legal basis

article 1065 of the Civil Code stipulates that both men and women may agree that the property acquired during the existence of the marriage relationship and the pre-marital property shall be owned by each, jointly owned or partly owned by each or partly jointly owned, and the agreement shall be in writing and shall be legally binding on both parties. This article establishes a contractual property system whose source of effect is the autonomy of the will of the parties, not the registration of changes in property rights.

Another path juxtaposed with this is the gift rule. Article 6fifty-eight of the Civil Code stipulates that the donor may revoke the gift before the transfer of the right to the gift property, except for the notarized gift contract or the gift contract with the nature of public welfare and moral obligations such as disaster relief, poverty alleviation and assistance to the disabled. Article 32 of the (I) on the Interpretation of Marriage and Family further clarifies that before marriage or during the existence of the marriage relationship, if the parties agree to donate the real estate owned by one party to the other party or jointly, and the donor cancels the gift before changing the registration, the people's court may follow the Civil Code. The provisions of Article 6

58of the Code are dealt.

2. core points

1. Criteria for distinguishing between marital property agreements and gifts

the key to distinguish between the two is the content and direction of the agreement. The marital property agreement is a holistic arrangement for the ownership of property during marriage and before marriage, usually manifested as a marital property agreement, which stipulates that a pre-marital property shall be jointly owned, which is an act of choosing the agreed property system and shall take effect upon signature. A gift, on the other hand, is when one party gives its property to the other party free of charge, and the core feature is single service and free of charge.

Common judgment factors in practice include: the name and expression of the agreement is directly agreed to belong or expressed as "gift" or "give. Where the factor points to the agreed property system, the avoidance claim is usually difficult to establish.

2. The impact of joint repayment of loans after marriage on the nature of the house.

Premarital mortgage house has an easily overlooked feature: although the house is a party before marriage signed a contract of sale and pay the down payment, but after marriage to repay the loan using the husband and wife's common property, the corresponding common repayment part and its value-added, according to the law does not belong to one party's personal property. Since the house already contains a common property component, it is no longer "property owned by one party" within the meaning of article

32".

This is also why the mortgage house that repays the loan together after marriage is not the same as the real estate that is purchased entirely by one party before marriage and without any joint investment after marriage. The former is closer to mixed property, while the latter may fall entirely within the scope of the discussion of gift revocation. The party claiming revocation often first has to prove that the house belongs entirely to his personal property. Ningbo area of the pre-marital house purchase after marriage joint repayment part of the compensation calculation, the practical caliber is "value-added index x (joint repayment amount of 2)" (according to the Ningbo City Intermediate People's Court "to the case" "divorced," how to calculate the "account"? "and Beilun District Court judge caliber).

3. boundary conditions

if the house is indeed purchased by one party in full before marriage, and the two parties agree to be jointly owned after marriage, and there is no joint repayment of loans, joint decoration investment, etc., then the possibility of the agreement being recognized as a gift component will increase significantly, and the funder will claim to cancel before the transfer registration, and there is room for support. A notarized written agreement is difficult to revoke because of the exception to article 658.

There is another situation that needs attention: if the content of the agreement is only "added name" but not actually handled, and there is still a mortgage on the house, the bank's opinion as the mortgagee, whether the loan is settled or not, and whether the mortgage change can be handled will directly affect whether the agreement can be implemented on the ground. This part belongs to the issue of performance and should be judged separately from the validity of the agreement itself.

4. common mistakes

the first mistake is that "no transfer" is directly equivalent to "can go back on our word". Transfer registration solves the problem of publicity and confrontation of changes in property rights, while the effect of written property agreements comes from Article 1065 of the Civil Code, which belong to different levels, and failure to transfer does not necessarily lead to the invalidation of the agreement.

The second misconception is that as long as the agreement is written within the marriage, it is irrevocable. If the house is indeed the entire premarital personal property of one of the parties and the content of the agreement is essentially a gift, the avoidance rule may still apply. The third mistake is to ignore the mortgage mortgage on the house, the agreement is very well written, but in the performance stage card in the bank and mortgage cancellation link.

5. operational steps

the first step is to fix the agreement itself: keep the original of the written property agreement, the communication record of the signing process, and confirm that the signing time is after marriage and whether the content clearly points to the house. The second step is to sort out the capital structure of the house: transfer the purchase contract, down payment voucher, loan contract and post-marriage repayment flow, and confirm the amount range of joint repayment after marriage.

The third step is to judge the nature of the agreement and prepare a claim or defense accordingly: the party claiming validity revolves around the written agreement, joint repayment of the loan, and joint use of organizational evidence. The fourth step is to communicate with Ningbo's loan banks and real estate registration agencies in advance on the issue of performance, to clarify whether the mortgage needs to be canceled first, and if necessary, to resolve the transfer cooperation obligation in Ningbo through pre-litigation mediation channels.

Practical Experience of 6. Lawyers

pre-marital mortgage to buy a house, after marriage written agreement to share but did not do the transfer, the investor can not transfer can be revoked to repent, depending on the nature of the agreement, rather than whether there is a transfer. If it is a property agreement between husband and wife, it is binding from the time it is signed by both parties, and the failure to transfer the ownership does not affect the validity of the agreement itself, but if its essence is that one party gives its own property to the other party, it may fall into the rule that the gift can be revoked before the transfer of rights. Therefore, the starting point of judgment is what the content of the agreement is, not the registration status.

In practice, the parties often only write one sentence that the house is the common property of husband and wife, but do not explain the background and purpose. As a result, both parties speak their own words when there is a dispute. To reduce the risk, the key information should be written at the time of the agreement: whether the house includes joint repayment of the loan after marriage, the share of rights of both parties, who will bear the loan, whether compensation is required, and whether to register changes in the future. The more clearly it is written, the less likely it is for the other party to claim revocation as a gift. Involving mortgage, but also consider the possibility of communication with the bank to change the registration. If the two sides have already gone to court, it is often too late to make up for it afterwards. If you write one more sentence in advance, you can fight one less.

If there has been a dispute, the first thing to do is not to dispute whether it can be revoked, but to find out the agreement text, purchase certificate, loan repayment record and communication record at that time, and judge which nature the agreement is closer. If it is determined to be a property agreement, the claim can be executed in accordance with the agreement, and if it is determined to be a gift and has not yet been transferred, it is necessary to assess whether the other party's withdrawal claim is valid and whether it can be compensated or returned accordingly. Instead of entangling the nature afterwards, it is better to write it as a property arrangement that can withstand scrutiny at the moment of writing the agreement. This is the real initiative.