In a divorce agreement in Ningbo, the property was assigned to me. Can I acquire ownership of the property without completing the transfer of title?- Zhiheng Law Firm

A couple agreed to divorce and agreed that the property purchased after marriage should be owned by the woman, but both parties have not registered the change of property rights. Subsequently, the man sold the house to a bona fide third party and completed the transfer of ownership. The woman then filed a lawsuit seeking recognition of her status as the owner of the property, but the outcome was not favorable. Disputes of this nature are not uncommon in practice. One sentence conclusion: The divorce agreement stipulates that the real estate belongs to one party. Before the real estate registration is completed, the party only has the creditor's right to request the other party to cooperate with the transfer of ownership and cannot directly obtain the ownership of the house. If the house has been legally acquired by a bona fide third party, the original agreement party cannot recover the house and can only claim compensation for breach of contract from the other party according to the divorce agreement.

1. legal basis: "dual-track system" of effective registration and effective contract"

The key to understand this problem is the double-track rule composed of Articles 209 and 215 of the the People's Republic of China Civil Code.

Article 209, paragraph 1 provides: “The establishment, modification, transfer, and termination of real property rights shall take effect upon lawful registration; without registration, they shall not take effect, unless otherwise provided by law.” This is the registration effectivism of the change of property rights-who owns the house, subject to the register.

Article 215 provides: “A contract concluded between parties concerning the establishment, modification, transfer, or termination of real property rights shall become effective upon its conclusion, unless otherwise provided by law or agreed upon by the parties; failure to register the real property right shall not affect the validity of the contract.” This is the principle of distinguishing between creditor’s rights and property rights—provisions in a divorce agreement regarding the ownership of real estate take effect upon the signatures of both parties and are binding on the parties who have signed the agreement.

The combination of the two makes the conclusion clear: the divorce agreement gives the woman the "right of request", not the "ownership". Before the transfer registration is completed, the man is still on the register, and the man is still the registered right holder who can dispose of the house in legal appearance.

The rules governing bona fide acquisition also need to be clarified. Article 311 of the Civil Code provides that a person without the right of disposition transfers immovable property to a transferee, and the transferee's bona fide acquisition requires three conditions to be met at the same time: the transferee is in good faith when the immovable property is transferred. The so-called "reasonable price", with reference to the provisions of Article 18 of the (I) of the Supreme People's Court on the Interpretation of the Property Rights Section of the Civil Code of the People's the People's Republic of China of China, should be comprehensively judged in the light of market prices and payment methods. The original article said that "the system of good faith acquisition is stipulated in Article 14 of the (I) of interpretation of property rights" is not accurate-Article 311 of the Civil Code is the core provisions of the system of good faith acquisition, and Articles 14 to 21 of the (I) of interpretation of property rights are the refinement of the constituent elements such as "good faith", which is amended and quoted in this paper.

2. Legal status of untransferred ownership: detailed consequences of three scenarios

is also "no transfer of ownership", and the ending is completely different depending on whether the third person intervenes or not, which can be divided into three situations:

The property is still registered under the other party’s name and has not been subject to any disposition.: The agreement party can only request the other party to cooperate with the transfer of ownership according to the divorce agreement. If the other party does not cooperate, it can appeal to fulfill the agreement and apply for compulsory execution of the transfer of ownership after winning the lawsuit. At this stage, the rights of the parties to the agreement constitute claims, and there is a risk that they may be further disposed of by the other party or subject to a court-ordered seizure.
The other party sells the property to an unwitting third party and completes the transfer.: If the third party is acquired in good faith and acquires the ownership of the house according to law, the original agreement party cannot recover the house, and can only investigate the other party's liability for breach of contract and compensate for the loss of the house value according to the divorce agreement.
The third party is still transferred knowing that the house has been agreed in the divorce agreement, or fails to pay reasonable consideration: if the third party does not constitute bona fide acquisition, the original agreement can claim that the transfer is invalid and recover the house; but "knowing" needs evidence support, only speculation is difficult to overturn the third party's presumption of bona fide.

3. Remedies and key points for recovery after unauthorized disposal

found that the real estate had been sold and mortgaged without authorization, and if he was angry emotionally, he still had to follow the procedure in action:

Inquire the real estate registration agency for the first time about the housing registration status, find out whether the ownership has been transferred, to whom the ownership has been transferred, whether there is mortgage or not, and fix the evidence of "the disposition has occurred.
If the third party has not completed the registration, he should immediately sue and apply for property preservation, seal up the house, freeze the sale price, and prevent the second transfer.
If the bona fide acquisition has been established, change the direction of appeal: sue the original registered party for breach of contract, claim compensation for the loss of house value, and apply for evaluation to determine the amount of loss if necessary; at the same time, try to preserve the other party's other property as much as possible to avoid "winning the lawsuit but not getting money".
Pay attention to the limitation of action and the limitation of execution: the claim for breach of contract is subject to the limitation of action for three years, starting from the time when it knows or should know that the right is damaged; after obtaining the effective judgment, it should apply for compulsory execution within the legal time limit.

Deduce a scene to make it easy to understand: the divorce agreement stipulates that the house jointly purchased after marriage belongs to Li, and the ownership has not been transferred. One year later, Wang, the registered party, sold the house to Zhang, who did not know about it, at the market price and completed the registration. Li sued Zhang for the return of the house-because Zhang had obtained it in good faith, the court would not support it; Li sued Wang for breach of contract, claimed compensation according to the current price of the house, and applied for the seizure of Wang's deposit, and was finally compensated. If Zhang purchased the property at a price significantly below market value or knew of the existence of the agreement, Li may bring suit to have the transfer declared invalid and recover the property.

4. Operable steps: promptly convert creditor's rights into property rights.

The divorce agreement clearly stipulates the property ownership, the transfer period, the penalty for not cooperating with the transfer, and the obligation clause of not disposing the house before the transfer.
After having the transfer conditions (no seizure, no mortgage or paid off), handle the registration of property right change as soon as possible, and do not replace the registration procedure with "the other party has promised.
If the mortgage loan of the real estate is still outstanding, the bank usually does not agree to change the borrower directly. It needs to communicate with the loan bank about the treatment plan of repaying the loan in advance, transferring the loan or taking over the loan by one party, and then handle the transfer.
Before the transfer of ownership is completed, regularly check the registration status to determine whether there are any mortgages, liens, or unauthorized dispositions.
Once found to be sold without authorization, immediately sue and apply for property preservation; for non-bona fide transferees, they can claim the invalidation and return of the contract, and for bona fide transferees, they will turn to the action of breach of contract compensation.

5. common mistakes

Myth 1: The divorce agreement says that the house belongs to me and it is mine. positive solution: the real estate is subject to registration, the agreement is only the basis of creditor's rights, there is no real right change without transfer, and the registration party is still the legal owner.

Myth 2: I can directly sue to get back the house that has been sold. positive solution: if the buyer is in good faith and has completed the registration, the original agreement party can only claim against the breaching party, and cannot deny the ownership of the third party.

Misunderstanding 3: There is a divorce agreement anyway, and it doesn't matter if you can't transfer the ownership. Positive solution: The non-transfer of ownership means that the real right has not changed, the registrant can still sell and mortgage, and the house may also be seized and auctioned by the court due to the debts of the registrant.

Myth 4: There is no way to transfer ownership before the loan is paid off. positive solution: it can be solved by repaying the loan in advance, changing the borrower through negotiation with the bank, and one party undertaking the loan, etc., and the specific policy of the bank shall prevail.

Misunderstanding 5: Once the divorce agreement is signed, the liability for breach of contract cannot be investigated. Positive solution: If the agreement stipulates the transfer obligation and liquidated damages, the unauthorized punishment by the registration party will constitute a breach of contract, and the contract-abiding party can claim compensation, not just self-admission.

Registration of 6. analysis of property transfer: materials, time limit and unilateral application

Once the necessary conditions are met, the process of transferring ownership will directly determine whether “rights on paper” can be converted into “ownership in name.” The procedure can be broken down as follows:

Required documents: Identification documents of both parties, divorce certificate (or a final divorce judgment or mediation agreement), the original real estate ownership certificate, and the divorce agreement (or the provisions regarding property division as determined in the judgment or mediation agreement). If the attribution is confirmed by a court decision or mediation, one party may apply unilaterally on the basis of the legal instrument in force, without the cooperation of the other party.
Processing channel: Apply for divorce analysis (transfer) registration from the real estate registration agency where the house is located, which can be accepted by the registration outlets in Ningbo city and each district, and some businesses can be applied for appointment online; the material requirements are subject to the list of registration agencies.
deals with mortgage: if the loan is not settled, the bank usually does not agree to change the borrower directly, but needs to deal with the scheme of repaying the loan in advance, transferring the loan or the scheme that the acquiring party undertakes the loan and obtains the approval of the bank, and then transfer the ownership -- this link takes the longest time in practice, and it is suggested that the order of loan repayment and transfer should be arranged in the divorce agreement.
The other party refuses to cooperate and has no effective documents: it can only sue first to request to fulfill the divorce agreement, and then apply for compulsory execution based on the judgment after obtaining the effective judgment. The court will serve the notice of assisting execution to the registration institution to handle the transfer of ownership.
Tax and fee caliber: In practice, the transfer of the original common property is usually exempted from value-added tax and personal income tax, and the deed tax is treated according to the tax exemption caliber of the division of the property of the husband and wife; after the divorce, if one party gives the property owned by the individual to the other party, the tax burden caliber is different-the specific confirmation by the competent tax authority shall prevail.

Transitional protection during the period of non-transfer of 7.: advance notice registration, objection registration and residence arrangement

Until the formal transfer of ownership is completed, the property registered in the other party’s name remains at risk of being disposed of or subject to a lien; transitional protective measures may be adopted:

Advance notice registration: according to the divorce agreement or relevant agreements, you can apply to the registration agency for advance notice registration to restrict the registration party to dispose of the house again. After the advance notice registration, if the house is disposed of without the consent of the right holder of advance notice registration, the real right effect will not occur -- this is the most direct means of "locking the house" during the period of non-transfer.
Objection Registration: If you think that the record in the register is inconsistent with the real right status, you can apply for objection registration, but the objection registration must be prosecuted within the legal time limit, otherwise it will be invalid, which is an emergency arrangement.
Pay attention to the registration status in time: regularly check whether there are restrictions such as mortgage and seizure through Zheli Office APP or registration agency, and immediately take preservation and litigation measures if any abnormality is found.
The written arrangement of residence: If the house cannot be transferred in a short period of time and the acquirer needs to actually live, the right of residence or the terms of residence arrangement can be specified in the divorce agreement to avoid secondary disputes caused by the other party renting or selling separately.

Class Case Reference: If the divorce agreement stipulates that the property belongs to one party but the ownership has not been transferred, you can only request the other party to assist in the transfer. The People's Court of Fenghua District, Ningbo City found that the property division clause in the divorce agreement is binding on both parties. It is agreed that the real estate involved in the case belongs to the plaintiff, and the plaintiff has paid off the mortgage loan and canceled the mortgage registration. The defendant should assist the plaintiff in handling the transfer procedures. The defendant's absence after legal summons does not affect the judgment. Trial Court: Ningbo Fenghua District People's Court Case No.:(2018) Zhejiang 02

13Minchu No. 1673

8. FAQ

The divorce agreement stipulates that the property belongs to the child, and if there is no transfer, can one party repent and cancel it?

The Answers to Several Questions about the Trial of Marriage and Family Cases (No. 2 [2016] of Gao Fa Min) of the People's Court of Zhejiang High Court makes it clear that if the divorce agreement stipulates that the common property will be given to the children and then go back on it, it should be dealt with according to the agreement and cannot be revoked at will. However, before the transfer of the property is still registered in the name of the donor, there is still the risk of unauthorized disposition or seizure, timely transfer to land.

What should I do if the other party doesn't cooperate with the transfer after the divorce?

can bring a lawsuit to the court with jurisdiction on the basis of the divorce agreement, requesting to order the other party to perform the transfer obligation; if the other party still fails to perform after the judgment takes effect, apply to the court for compulsory execution, and the court shall serve the notice of assistance in execution to the real estate registration agency to handle the transfer.

If the house is registered in the name of the other party, will the court directly decide that the house belongs to me?

will. If the divorce agreement or divorce judgment confirms that the house belongs to you, you can apply for registration unilaterally with the effective document. If the other party refuses to hand over the ownership certificate, the court can assist in the execution of the notice without the other party being present.

How to calculate the tax when transferring ownership?

In practice, the value-added tax and personal income tax are usually not levied on the transfer of the original common property of the husband and wife after divorce, and the deed tax is treated according to the tax exemption standard of the division of the husband and wife's property; the specific confirmation is subject to the tax authority of the place where the house is located, and the standard of different districts and counties may be slightly different.

The house was seized by the court before it was transferred. What should I do?

Confirm the reason of sealing up first: if it is caused by the personal debt of the registrant, the execution objection can be raised to the execution court based on the divorce agreement and other materials, claiming that the house has been owned by the party according to the divorce agreement and does not belong to the responsible property of the registrant, and request to suspend the execution and lift the sealing up; if the objection is rejected, the execution objection can be filed. Whether the objection can be established depends on whether the divorce agreement is signed earlier than the formation or seizure of the debt, whether it has been actually occupied and used, whether the transfer is at fault or not, and other factors-early signing of the agreement, early claim, and early actual occupancy are all favorable factors. In the case of a joint debt seizure, the debt should be dealt with simultaneously to avoid the house being auctioned.

Practical Experience of 9. Lawyers

If it is written in the agreement that the house belongs to you, will the house really be in your hands? The most painful lesson in practice is that some people hold the signed divorce agreement, but because of the delay in handling the transfer of ownership, they helplessly watch the other party sell and mortgage the house. The effect of real estate registration is very hard, the agreement only gives you a right to request the other party to cooperate, not the ownership itself. Therefore, the next step in getting the agreement is not to celebrate, but to register the change of property rights as soon as possible, turning the rights on paper into the rights on the register, and the sooner you start, the more active you will be.

There is often a window period from signature to accreditation. During this period, we should take the initiative to fortify. The common practice is to complete the transfer of ownership as soon as the conditions are met. For those who do not have the conditions for the time being, consider making advance notice registration or filing objection registration so that others can understand that there is a dispute in the suite when checking the files and reduce the space for the other party to unilaterally dispose of it. If the house continues to live, a written agreement can also be made on the living arrangement to prevent the other party from putting pressure on "you want to vacate the house. The sooner you do these moves, the more the initiative is in your hands.

In case the other party has been disposed of without authorization and has been legally acquired by an unknown third party, it is usually unrealistic to recover the house. At this time, we should decisively turn to investigate the liability for breach of contract: claim compensation according to the divorce agreement, apply for property preservation to freeze the due amount or other property, and fix the relevant clues. Many people miss the best time to recover money because they want to "get the house back. It is more important to judge clearly whether to "chase after the house" or "chase after the money" than to strike one direction.

The divorce agreement stipulates that the timely transfer of ownership after the ownership of the property is the most critical step in such disputes. The agreement is a contract of creditor's rights, which binds both husband and wife, and registration is the completion mark of the change of real right, which determines whether it can be against the third party. During the period of non-transfer, the risk of unauthorized sale and mortgage of the registered party always exists, and after being obtained by a bona fide third party, it can only claim compensation for breach of contract. It is suggested that the parties should specify the transfer period and liquidated damages in the agreement, register the change immediately after the conditions are met, and check the registration status regularly; when abnormal treatment is found, sue and apply for preservation as soon as possible to control the loss to a minimum.