Insights

Can Ningbo Demolition and Resettlement Housing Agreed to Return to Children Prosecute

Ningbo Author：LuXu WANG

The divorce agreement stipulates that the relocated house belongs to the children, but after the house property certificate is issued, it is registered in the name of one party. The other party wants to help the child get the house back, but does not know whose name to sue. Disputes of this kind are very common in urban village redevelopment, rail transit projects, and new district construction in Ningbo. First give the conclusion: the divorce agreement stipulates that the demolition and resettlement house shall be owned by the children, which is the agreement of both parties on the disposal of property. The agreement is legally binding and generally cannot be revoked unilaterally. Even if the house has not been transferred or registered in the name of one party, the child or the party directly raising the child can also sue to confirm the ownership and handle the transfer. This paper combines the "the People's Republic of China Civil Code" (hereinafter referred to as the "Civil Code") and the judicial interpretation of marriage and family, dismantling the effectiveness basis, the main body of prosecution, the main points of evidence and the local process of Ningbo.

Legal basis of 1.: Binding force of divorce agreement and nature of grant clause

There are three legal bases for dealing with such disputes. The first paragraph of Article 1076 of the Civil Code: "If the husband and wife divorce voluntarily, they shall sign a written divorce agreement and apply for divorce registration at the marriage registration agency in person. The divorce agreement shall state the intention of both parties to divorce voluntarily and the consensus opinions on matters such as child support, property and debt settlement. "This is the legal basis of the property clause in the divorce agreement. Article 69 of the Interpretation (I) of the Supreme People's Court on the Application of the Marriage and Family Code of the the People's Republic of China Civil Code (hereinafter referred to as "Interpretation 1") stipulates: "If the property and debt settlement agreement reached by the parties on the condition of registering divorce or going to the people's court for divorce, if both parties fail to reach an agreement on divorce and one party goes back on his word in divorce proceedings, the people's court shall determine that the property and debt settlement agreement have not taken effect, and according to the actual situation in accordance with the provisions of articles 1087 and 1089 of the civil code. "This article regulates the situation of" unfulfilled divorce "; once the divorce registration is completed, the divorce agreement will take effect, in which the agreement on the ownership of property is legally binding on both parties, and the court accepts and supports the implementation of the divorce agreement. The third layer is the applicable boundary of the gift revocation 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 that cannot be revoked according to law. Whether a provision in a divorce agreement that “gifts the property to the children” can be revoked at will as an ordinary gift is the central issue of contention in such cases.

2. Core Qualification: The gift in a divorce agreement differs from an ordinary gift.

The mainstream of judicial practice is: the agreement in the divorce agreement to give the common property to the children belongs to the compound arrangement which is based on the premise of dissolution of the marriage relationship and has the dual attributes of identity relationship and property relationship, and can not simply apply the arbitrary revocation right of the ordinary gift contract. There are three reasons: first, the gift is part of the divorce package, which is often implicated with custody, alimony, debt sharing and compensation. Allowing one party to repent afterwards will destroy the balance of the whole divorce arrangement; second, after the divorce agreement is registered and effective, both parties should fully implement it, and one party's repentance violates the principle of good faith; third, children, as the third party benefiting from the agreement, form trust interests to their parents, unitary revocation by parents damages the rights and interests of minor children. Therefore, under the premise that the divorce registration has been completed and the agreement has entered into force, one party's claim to repentance on the grounds that "the transfer has not yet been transferred and the gift can be revoked" is usually not supported. The exception to the distinction is: if the divorce agreement between the two parties is not completed (withdrawn after application or without obtaining a certificate) and the divorce agreement has not yet taken effect, the property division clause may not be applied according to Article 69 of Interpretation 1; If there is fraud or coercion in the conclusion of the agreement, the aggrieved party may request the cancellation of the property division clause within one year from the date when it knows or should know the cause of cancellation.

3. situation breakdown: according to the housing status and registration classification processing

The agreement of the resettlement house for demolition and relocation to the children will encounter different housing states when landing, and the processing paths are different. First, the house has the conditions for accreditation and has not yet been registered: the children or dependents can be directly used as plaintiffs, and the petition confirms that the ownership belongs to the children and orders the parents to cooperate in the transfer registration. Second, the real estate certificate has been issued but registered in the name of one party: the appearance of registration can not oppose the internal agreement of the divorce agreement, the children can claim ownership according to the agreement, the prosecution should pay attention to apply for property preservation before the judgment comes into effect, to prevent the registered party from selling and mortgaging the house. Third, the resettlement house is still under construction and has not been delivered: the rights of the house have not yet been realized, and the ownership of the rights and interests agreed in the agreement can be confirmed first, and the transfer of ownership can be claimed after the conditions for the delivery of the certificate are fulfilled; If one party disposes of the resettlement qualification without authorization or signs a new compensation agreement, the non-compliance party can claim compensation for the loss. Fourth, the house has the burden of rights such as mortgage, seizure or unpaid purchase money: the transfer may not be possible for the time being, but the ownership can be confirmed first, and the performance will continue after the burden is eliminated. Fifth, if the resettlement housing involves the rights and interests of other family members (parents, adult children, etc.): the population list in the resettlement agreement must first be checked with their respective shares, and the "common property part of husband and wife" and "rights and interests part of other family members" must be distinguished, so as to avoid new disputes caused by disposing the resettlement rights and interests of the whole family as the common property of husband and wife.

4. Plaintiff's standing and choice of cause of action

Who has the right to file a lawsuit depends on the purpose of the litigation. In the case of "children as plaintiffs", the cause of action is usually a contract dispute (the performance of the divorce agreement) or a lawsuit confirming the validity of the contract, claiming that the parents shall perform the transfer obligation according to the divorce agreement. At this time, the children are the third party of the agreement and need to prove that they are the designated beneficiaries of the agreement. The party directly raising the children may act as a legal representative. If the prosecution is "the supporting party as the plaintiff", it may claim to confirm that the house belongs to the children and order the other party to cooperate in the transfer, or to require the other party to perform the agreement on the grounds of property disputes after divorce. The two paths have their own focus: the child's name prosecution is more in line with the "beneficiary third party" positioning, but needs to deal with its relationship with the subject of the agreement, the dependency prosecution operation is convenient, but if the dependency itself is also the opposite party of the agreement, the court will examine whether it has the right to claim on behalf of the child. In practice, the proposal: first look at the wording of the agreement-the agreement "owned by the children", the children as the plaintiff, the dependent party as the legal representative is more secure. No matter which path is chosen, the divorce agreement, demolition and resettlement agreement and housing ownership materials shall be submitted together as core evidence.

5. Case Study: Can the transfer be enforced if the property is registered under the man's name?

In the reconstruction project of an urban village in Ningbo, Wang and Li agreed to divorce, and agreed that a 120-square-meter house obtained from the resettlement would be owned by his minor daughter, who would be raised by Li. After the delivery of the resettlement house, the real estate certificate was registered in the name of Wang. Li repeatedly asked Wang to cooperate with the transfer of ownership, so he sued with his daughter as the plaintiff and his legal representative, demanding to confirm that the house belongs to his daughter and ordered Wang to assist in the transfer registration. Wang Mou defended that the house had not been registered in his daughter's name and that the gift had not been completed, and he had the right to revoke it. The court held that the agreement on property ownership in the divorce agreement is based on the dissolution of the marriage relationship, has the dual attributes of identity and property, and does not belong to an ordinary gift that can be arbitrarily revoked; the agreement has come into effect due to the completion of divorce registration and is binding on Wang, so it was decided to confirm that the house belongs to her daughter, and Wang cooperated with the transfer within a time limit. This example reflects the local referee on the "divorce agreement gift children can not be arbitrarily revoked" caliber of the implementation, but also prompted the parties: the house registration in whose name does not determine the ownership, the agreement agreement and registration status conflict, should be based on the content of the agreement as the basis for performance.

6. Common misconceptions and correct answers

Misunderstanding 1: If the house has not been transferred, you can go back on your word at any time. Positive solution: The property gift in the divorce agreement is based on the premise of dissolution of the marriage relationship, and generally cannot be revoked unilaterally after the agreement takes effect; only if the agreement divorce is not completed or there are legal circumstances such as fraud and coercion, can it be reversed or revoked.

Misunderstanding 2: You can only sue in the name of the party who directly raises the children.Correct answer: As a third-party beneficiary under the agreement, a child may also bring a claim as the plaintiff, with the custodial parent acting as the legal representative in the litigation.

Misunderstanding 3: The house ownership certificate is registered in the man's name, and the house belongs to the man. positive solution: registration is only the publicity of real right, which can not resist the internal agreement on ownership in the divorce agreement; children can claim to confirm the ownership and handle the transfer according to the agreement.

Misconception 4: Even if the resettlement housing involves other family members, it can still be handled directly according to a marital agreement. positive solution: the list of population and their respective shares in the resettlement agreement should be checked first, and only the part belonging to the common property of husband and wife can be punished, and the part involving the rights and interests of others should be solved by another way.

Misunderstanding 5: If you win the judgment, the other party can't help it if you don't cooperate. positive solution: if the other party still does not cooperate after the judgment takes effect, it can apply to the court for compulsory execution, and the execution agency will send a notice of assistance to the real estate registration agency to handle the transfer registration.

7. Material List and Prosecution Procedure

For those preparing to sue, it is recommended to proceed with the following steps and materials:

  1. File retrieval: check the original divorce agreement with the original marriage registration authority that handled the divorce registration; apply to the original demolition implementation unit or the local street for retrieval of the demolition resettlement agreement, and confirm the resettlement population, housing source and area;
  2. query registration: check the current situation of the house, register the right holder, whether there is a mortgage seizure, and print the real estate registration information;
  3. Determine the main body: according to the wording of the agreement and the state of the house, determine the children or the dependents as the plaintiffs and list the defendants (the breaching party, and the co-owners such as the parents of the other party if necessary);
  4. Prepare prosecution materials: divorce agreement, demolition and resettlement agreement, identity certificate, household register (proving the relationship between children), real estate registration information, custody ownership certificate, etc;
  5. Property Preservation: If the registered owner poses a risk of selling or mortgaging the property, apply for property preservation concurrently with the filing of the lawsuit.
  6. Application for Enforcement: If, after winning the lawsuit, the other party still fails to cooperate with the transfer of ownership, apply to the court for compulsory enforcement to complete the transfer registration.

8. the practical connection of transfer conditions, taxes and registration arrangements

After a court judgment confirms ownership or the parties reach a settlement, the actual transfer of property rights still involves three sets of practical issues. First, the conditions for handling the certificate and transfer of ownership: the initial registration and household registration must be completed before the transfer registration can be handled after the conditions for handling the certificate are met; For houses that are still under construction or have not been initially registered, only the ownership of rights and interests can be confirmed first, and the application can be made with effective legal documents after the conditions are met. Do not force the registration authority to cooperate when the house does not have the conditions for handling the certificate. Second, the tax burden: the transfer of housing involved in the deed tax, stamp duty and possible personal income tax, according to the provisions of the tax law by the recipient or legal tax subject, but the agreement or judgment may be agreed by a specific party to bear ". Third, the registration procedure: the effective judgment or civil mediation document can be directly used as the basis for transfer registration, and apply to the real estate registration agency for unilateral processing with the effective legal documents; if the other party refuses to cooperate, the enforcement procedure shall be followed, and the court shall issue a notice of assistance to the registration agency for compulsory transfer. What needs special reminder is that Ningbo may apply local policies such as the limit on the number of years of listing and trading and the supplementary payment of land transfer proceeds to resettlement houses. Different projects have different calibers. Before handling, the specific policies of the house should be verified by the local real estate registration agency and the tax window, and then the transfer plan and time point should be determined.

case reference: the court considers that the divorce agreement is the true intention of both parties, legal and valid, and both parties should abide by the agreement on common property; the house for demolition and resettlement within marriage is divided into house funds according to the divorce agreement, and the court decides that the house for demolition and resettlement is shared by both parties. Trial Court: People's Court of Jiangbei District, Ningbo City, Zhejiang Province Case No.:(2012) Yongbei Ci Min Chu Zi No. 11

9. FAQ

If a divorce agreement stipulates that the resettlement housing shall belong to the children, can the other party file a lawsuit if they later go back on their word?

Yes. If the agreement has entered into force as a result of divorce registration, the repentant party cannot refuse to perform on the grounds of ordinary gift revocation.

The resettlement house has not been delivered and the certificate has not been issued. Can you sue now?

can confirm the ownership of the rights and interests first, and then claim to transfer the ownership after delivery and the conditions for handling the certificate are met; it can also be listed in the application "to handle the transfer when the conditions are fulfilled", so as to avoid that the request cannot be executed due to the unreality of the house.

What if one party conceals the resettlement house during the divorce?

Concealing the shared house belongs to the common property of the husband and wife. The other party can sue for division again within three years from the date of discovery (according to Article 84 of Interpretation 1) or by referring to the rules of property disputes after divorce, and claim to divide or divide the concealed party less.

If the housing has a mortgage, can it be transferred directly to the children?

You need to pay off the loan first or go through the formalities such as remortgage with the consent of the bank, and then transfer the ownership after the mortgage is released; before that, you can confirm the ownership first, and the right confirmed by judgment is also protected by law.

If you were coerced into signing a divorce agreement, can the property-related provisions be revoked?

Yes. If there is fraud or coercion, the aggrieved party may request the people's court to revoke the property division clause within one year from the date when it knows or should know the cause of the revocation, and the right of revocation will be lost within the time limit.

10. Practical Legal Insights

The divorce agreement stipulates that the resettlement house belongs to the children, but the house certificate is registered in the name of one party afterwards, and the other party does not cooperate with the transfer of ownership. This kind of situation is very common in areas with more land requisition and relocation. The main point is that this agreement is the agreement reached by both parties on the disposal of property at the time of divorce. After the divorce registration is completed, it will become binding and generally cannot be revoked unilaterally. Therefore, the parties should not be intimidated by the fact that the house is still in the name of one party, nor should they give up just because the other party said that the house is mine. The first thing to do is to turn out the original divorce agreement, the source materials of the property rights of the resettlement house and the resettlement certificate to confirm which suite the agreement points.

When it comes to operation, it is necessary to think clearly in whose name and according to what cause of action before prosecuting. Usually, the party directly raising the children or the children themselves advocate confirming the ownership of the house and handling the transfer of ownership. It is necessary to sort out the resettlement agreement, payment voucher, housing selection record and housing status into a chain of evidence in advance to avoid repeated tossing and turning due to improper selection of the subject or request. At the same time, attention should be paid to whether the house does not yet have the conditions for handling the certificate, whether there are obstacles such as mortgage or seizure, which will affect whether the transfer of ownership can be directly ordered, and the handling of the certificate and tax arrangements should also be taken into account.

In the negotiation, the other party does not cooperate with the transfer of ownership, and most of the time it is to use the real estate to hold back the support, visit or compensate. Instead of simply urging, it is better to tie up the transfer and other matters, such as the mutual performance of the agreed transfer time and payment and visitation arrangements, stating the liability for breach of contract if it fails to cooperate within the time limit, and giving the other party some pressure with litigation preservation if necessary. Prosecution and negotiation are not contradictory. While preparing evidence and litigation, leaving a window for negotiation is often the fastest combination of such disputes.

The divorce agreement stipulates that the demolition and resettlement house belongs to the children, which is legally tenable, but it relies on the "timely action of the agreement text evidence chain". When signing the agreement, the location, area and transfer point of the house should be clearly written. After divorce, the transfer of ownership shall be started as soon as possible, and those registered in the name of one party shall claim their rights and apply for preservation in a timely manner. When suing, the plaintiff's subject and cause of action shall be selected, and three groups of core materials shall be equipped with divorce agreement, demolition and resettlement agreement and registration information. The rights and interests will not be automatically realized by "writing into the agreement", and the active exercise of the right of request is the key.