Ningbo prenuptial agreement gift room has not been transferred, can it be revoked?

Before marriage, an agreement was signed, agreeing that one party would give the house under his name to the other party, but the transfer registration had not been handled. Later, the relationship changed and the donor wanted to go back on his word. The basic conclusion in this case is that the donor can, in principle, revoke the gift until the property is registered, and the other party's request for continued performance and transfer of ownership is usually difficult to obtain support, which is contrary to the intuition of many people.

The reason for this conclusion is that the transfer of real estate rights is subject to registration. The agreement itself can prove what both parties meant at that time, but the failure to complete the registration means that the gift has not been actually performed, and the law gives the donor room to go back on his word. Only by understanding this can we understand why writing in black and white or even pressing the fingerprints may not necessarily mean that we can get the house. The proportion of property disputes in Ningbo's family trial practice is extremely high, and according to the Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), more than 99% of family cases involve the division of property.

1. legal basis and the specific caliber of judicial interpretation

it is a general rule of the contract of gift that the giver can revoke the gift before the right to the gift property is transferred. The corresponding judicial interpretation further clarifies that before marriage or during the existence of the marriage relationship, the parties agree to donate the real estate owned by one party to the other party, and the donor cancels the gift before the registration of the real estate change, and the other party requests the judgment to continue to perform, the people's court may follow The provisions of the gift contract are dealt with, that is, the effect of cancellation is recognized.

Two levels need to be distinguished: the validity of an agreement is not the same as the ability to enforce performance. The agreement is usually valid, and the exercise of the right of revocation does not presuppose the invalidity of the agreement; however, at the stage when the right has not yet been transferred, the law is more inclined to respect the final will of the donor, so the recipient often gets a valid but difficult commitment to enforce, which is the most surprising part of such disputes.

2. what circumstances cannot be arbitrarily revoked

1. Notarized gift

after notarization of the gift contract, the donor does not enjoy the right of arbitrary revocation. This is the safest and lowest cost reinforcement in practice. If both parties do have the real will to give the property to each other, at the same time of signing the agreement to the notary institution for gift notarization, can significantly reduce the risk of being repentant in the future, than after the dispute the original real idea is much more effective.

2. The property division clause in the divorce agreement.

If the treatment of the property is written in the divorce agreement, as the overall arrangement of the division of the husband and wife's property and the upbringing of the children, then its nature is the property division agreement at the time of divorce, not a simple gift, and the arbitrary revocation rule of the gift cannot be applied. When one party reneges, the other party may request continued performance, and the court will generally review the agreement for revocable circumstances such as fraud, coercion, etc., rather than directly allowing the renege.

3. Has constituted a marital property agreement and has been actually performed.

The ownership of pre-marital property and property acquired during the marriage may be agreed upon in writing between the spouses, and such agreements are binding on both parties. If the content of the agreement is not a unilateral free grant, but contains a mutual arrangement of rights and obligations, or if there has been actual performance such as delivery, co-residence, joint repayment of loans, etc., and the agreement on the property of the husband and wife rather than an ordinary gift, there is room for struggle.

Where is the boundary between the 3. gift and the husband and wife's property agreement?

The difference between the two depends mainly on whether there is a consideration and an overall arrangement. If the agreement also stipulates the overall ownership of the property of both parties, the distribution of income after marriage, the assumption of debt, or the abandonment of other rights and interests by one party in exchange, it is closer to the marital property agreement, and the difficulty of revocation will be significantly increased.

Therefore, the way in which the agreement is drafted directly determines whether it is easy to be revoked in the future. Rewriting a one-sentence promise of gift into a property agreement with equal rights and obligations, and clarifying the calculation of the consequences of breach of contract and compensation, is a cost-effective defensive action. The context in which the agreement was signed and whether there were mutual concessions are often more important than what is written in the title of the agreement.

4. specific to Ningbo: transfer materials, purchase restrictions and notarization

specifically to Ningbo, the transfer of real estate between spouses needs to submit identity certificate, marriage certificate, housing ownership certificate and gift agreement or notarial certificate to the real estate registration center in the area where the house is located. For houses with loans, the mortgagee must first obtain the consent of the mortgagee or handle the repayment and release of the loan. The list of materials is slightly different from the reservation method in each district. Before handling, you can check the handling guide or telephone confirmation in each district through Zhejiang Office APP, and you can run one less trip.

In practice in Ningbo, attention should also be paid to the caliber of purchase restrictions and taxes. The increase, decrease or transfer of the house name may trigger the verification of the purchase qualification. The party that is not registered in the city or has multiple houses under its name needs to confirm in advance whether it has the conditions to undertake the house. The specific levy of relevant taxes and fees shall be subject to the caliber of Ningbo's competent tax authorities, and the tax rate conclusion in foreign cases shall not be copied.

Judging from the general practice reflected in the public judgment of Ningbo court, family and property disputes are generally appointed for pre-litigation mediation, and Zhejiang shared court can support online mediation. For the two sides still have room to communicate the gift of the dispute, through mediation to reach a discount compensation or partial performance is not uncommon, it is not necessary to fight all the way to the judgment, which is more friendly to the time cost of both sides.

5. common mistakes

the first misunderstanding is that the agreement has been fingerprinted and witnesses have been found, which means that the house is already its own, ignoring the key link of registration. The second mistake is to give you a word of oral promise and a house in the chat record as a gift agreement, and the evidence form is too weak. The third misunderstanding is that after getting the agreement, it will not urge the transfer of ownership for a long time, and it will not come to mind until the relationship deteriorates. At this time, the other party has more room to withdraw.

Another misconception is to simply apply conclusions on the Internet. The same is the property gift has not been transferred, written in the prenuptial agreement, written in the husband and wife property agreement and written in the divorce agreement, the legal consequences are completely different, must return to the specific text and signed background to judge. Just look at the title and draw a conclusion. It is easy to make a dead end case that could have been fought.

6. operational steps

the party who wants to keep the real estate: the first step is to promote the transfer registration as soon as possible, which is the most thorough way; the second step, if the transfer is temporarily impossible, immediately re-submit the gift notarization, or rewrite the agreement into a husband and wife property agreement with equal rights and obligations, and specify the liability for breach of contract; the third step is to keep the original agreement, the image data of the signing process and the communication records of both parties, so on, so on, so on, so on.

The party who wants to cancel the gift: the first step is to confirm that the real estate has not yet completed the change registration, and the agreement does not belong to the division clause in the divorce agreement and has not been notarized; The second step is to clearly express the intention of cancellation in writing and leave marks. The third step is to organize a defense around the nature of the agreement, whether there is any consideration and whether it has actually performed. If necessary, go to the real estate registration center to verify the current registration status before deciding on the strategy.

Practical Experience of 7. Lawyers

before marriage, an agreement was signed, which agreed that one party would give the house under his own name to the other party, but he did not handle the transfer of ownership. Later, the relationship changed and the donor wanted to go back on his word. In this case, the basic conclusion is that before the registration of the change of property is completed, the donor can revoke the gift in principle, and the other party's request to continue to perform and order the transfer of ownership is usually difficult to obtain support. This is counter-intuitive to many people. The core reason is that the transfer of real estate rights is subject to registration, the agreement can prove the meaning of the time, but the lack of registration means that the gift has not been fulfilled, the law gives the donor room to go back on his word.

However, not all untransferred gifts can be withdrawn at will. Notarized gifts, as well as gifts with the nature of public welfare and moral obligations such as disaster relief, poverty alleviation, and assistance to the disabled, generally cannot be revoked arbitrarily; the part that has been fulfilled cannot also be withdrawn. In addition, it is necessary to distinguish the boundary between the gift and the husband and wife's property agreement-a written agreement with clear content and pointing to the attribution of the husband and wife's property. The effective path is not the same as the simple gift. It depends on what is written and the nature of the agreement, which directly determines whether we can go back on our word. This is also the real point of contention in this kind of dispute.

For the recipient party, the most practical approach is to promote the transfer as soon as possible, the rights to the registration. Pay attention to the pre-conditions such as purchase restrictions, taxes and banks, and handle them as soon as possible after the materials are ready. If the conditions are not met for the time being, the risk of arbitrary cancellation can be reduced through notarization and other means, or the agreement can be adjusted to a more secure property arrangement. During the negotiation, instead of worrying about whether the promise before marriage counts, it is better to grasp the practical issues of whether the transfer can be made, when the transfer can be made, and how to compensate at a discount when there are obstacles to the transfer. Only then can the negotiated plan be truly reliable.