How to revoke the unfilial parents of their children after the gift of real estate in Ningbo
The parents transferred the house to their children, and they wanted to "raise children to guard against old age", but the children turned a blind eye to it and even abused it. Can the transferred house be returned? Conclusion: Yes, but there are strict conditions and time limits. After the transfer of ownership of the real estate, the parents can no longer arbitrarily revoke it, but can only exercise the legal right of revocation in accordance with Article 663 of the Civil Code-the child must prove that the child "seriously infringes the legitimate rights and interests of the parents or their close relatives", "fails to perform the obligation to support the parents" or "fails to perform the obligation stipulated in the gift contract", and shall exercise it within one year from the date when the reason of knowing or should be known. This article explains the revocation path, conditions, deadlines and operations once and for all.
1. two revocation paths: arbitrary revocation and statutory revocation
article 658 of the Civil Code provides for the right of revocation at will: the donor may revoke the gift before the transfer of the right to the gift property; except for notarized gift contracts or gift contracts of a public interest and moral obligation nature such as disaster relief, poverty alleviation and assistance to the disabled that cannot be revoked in accordance with the law. Article 663 provides for the statutory right of revocation: if the donee has one of the following circumstances, the donor may revoke the gift-(I) seriously infringe upon the legitimate rights and interests of the donor or the donor's close relatives; the (II) fails to perform the obligation to support the donor; (III) fails to perform the obligations stipulated in the gift contract. The donor's right of revocation shall be exercised within one year from the date on which he knows or should have known the cause of revocation. The watershed between the two paths is "transfer": if the property has been registered for transfer (the transfer of rights has been completed), there is no room for arbitrary revocation and only legal revocation.
Three Cases and Elements of Statutory Revocation of 2.
Case 1: Serious infringement of the legitimate rights and interests of parents or their close relatives. Typical examples such as beating, abuse, abandonment, abuse and harassment, embezzlement of other parents' property, etc., must reach a "serious" level-occasional quarrels, general quarrels do not constitute, there must be violent injuries, persistent harassment and other facts, and the object of infringement includes the donor himself and his close relatives (spouse, other children, parents, etc.). Case 2: Failure to fulfil the obligation to support parents. Children have the obligation to support and support their parents-Article 1067 of the Civil Code stipulates that if adult children do not perform their maintenance obligations, parents who lack the ability to work or have difficulties in living have the right to require adult children to pay alimony. Those who do not pay alimony, do not take care of their lives or refuse to support their parents for a long time after receiving the property will fall into this item-failure to perform their legal obligations can be triggered without the agreement in the gift contract. Case 3: Failure to perform the obligations stipulated in the gift contract. The gift may be accompanied by an obligation (Article 661 of the Civil Code). Parents may stipulate in the gift contract such conditions as "maintenance obligations, regular visits, retirement for parents, retention of residence rights" and so on. If the children refuse to perform the gift, the cause of cancellation is triggered-this item has the lowest difficulty of proof, provided that the obligation was originally written into the contract.
3. time limit: one year and six month hard term
article 663, paragraph 2, of the Civil Code: The right of revocation of the donor shall be exercised within one year from the date on which the cause of revocation is known or should be known. Article 664 A special rule is set out: If the donor dies or loses his or her capacity for civil conduct due to the illegal act of the donee, the heir or legal representative of the donor may revoke the gift, and his or her right of revocation shall be exercised within six months from the date when he or she knows or should know the cause of the revocation. Key points of understanding: the starting point of the period is "the date when the reason for cancellation is known or should be known"-not the date of transfer of ownership, nor the date of emotional breakdown, but the date when parents know the fact that their children "serious infringement/non-support/non-performance"; One year and six months are the exclusion period. Suspension, interruption or extension are not applicable. If the overdue rights are eliminated, the house will not come back. In practice, many elderly people "endure for several years before suing", often lost in the deadline-found that their children are unfilial should be timely claimed, forbearance does not mean giving up their rights, but will miss the legal deadline.
Legal Consequences and Obstacles after the Revocation of 4.
According to Article 157 of the Civil Code, after a civil legal act is revoked, the property acquired by the perpetrator as a result of the act shall be returned-after the parents exercise the legal right of revocation, the children shall return the property (in conjunction with the transfer of ownership registration). However, revocation is not without obstacles: if the child has sold the property to a bona fide third party and completed the transfer of ownership, the third party acquires ownership in accordance with the system of bona fide acquisition under article 311 of the Civil Code, and the parents' revocation lawsuit is difficult to oppose the third party and can only claim compensation for the transfer price from the child-this is the reason why property preservation should be claimed as soon as possible after the cause of revocation is found (property seizure to prevent redisposition). If the child sets up a mortgage on the property, the mortgage may continue to survive after the reversal, which also requires a professional assessment.
5. Deduction Case (example, fictional)
an old man in Ningbo transferred his only house to his son, and both parties stated in the gift contract that "the son must bear the daily care of the elderly and retain the right to live for the elderly". After the transfer of ownership, the son did not visit for a long time, did not pay alimony, and repeatedly abused and pushed the old man. The old man held back for two years before suing to revoke the gift. The court found that the old man knew that "his son refused to perform his agreed duty of care" for more than a year before filing a lawsuit. When the period of exclusion expired, the right of revocation was extinguished and the request for revocation was rejected. In contrast, if the old man has fixed the audio and video recordings of his son's abuse, pushing and shoving, and the community mediation record, and sues within one year after the incident, he can claim revocation in accordance with Article 663, (I), (II) (III), and the real estate decree will be returned. The deduction shows that the revocation of gift is a double competition of "fact + time limit". One step later in evidence and one shot slower in prosecution may all lose.
Analysis of Common Misunderstandings in 6.
Myth 1: If you give it, you can get it back. Positive solution: The transfer can only be revoked by law, which must meet the statutory circumstances of Article 663 and provide evidence, and cannot be revoked by "bad mood. Myth 2: Children are not filial but cannot withdraw without beating or scolding. Positive solution: long-term refusal to perform maintenance obligations is itself a statutory revocation situation, the key is to fix the "non-performance of support" evidence. Myth 3: Whenever you want to withdraw. Positive solution: exercise within one year after knowing the cause of revocation (six months for heirs and legal representatives), and be eliminated within the time limit. Myth 4: It doesn't matter whether the gift contract is written or not. Positive solution: the written "must support, visit, retain the right of residence" and other agreed obligations, can be one more path of proof, significantly reduce the difficulty of revocation. Myth 5: First quarrel and then prosecute, and then find the evidence. Positive solution: evidence in peacetime-audio and video recordings, mediation records, neighbor testimony, transfer records are all ammunition for revocation of the lawsuit, and it is often too late to supplement the evidence afterwards.
Pre-planning for 7. gifts: conditions, residency and legacy support
revocation is ex post relief, pre-planning is the cure, and the three tools can be used in combination. Tool 1: With obligation gift clause. Article 661 of the Civil Code allows gifts to be accompanied by obligations. Parents can specify in the gift contract such provisions as "the donee shall perform maintenance obligations, regular visits, and protection of parents' residence", and implant in advance the reasons for revocation of "non-performance of agreed obligations" (Article 663, Item 3)-the more specific and testable the obligations are (e. g. visiting frequency, alimony standard), the easier it will be to prove in the future. Tool 2: Registration of the right of residence. Articles 366 to 371 of the Civil Code establish the right of residence system: parents can set up and register their right of residence for themselves while donating the real estate. Even if their children are unfilial in the future and the real estate is sold or mortgaged, the parents' right of residence can still oppose the new right holder-this is a milder and more stable old age guarantee than "revoking the house to be returned". The registration of the right of donation and the right of residence can be handled together with the real estate registration. Tool 3: Legacy maintenance agreements. If you are worried about the unreliable support of your children, you can sign a bequest support agreement with the dependant in accordance with Article 1158 of the Civil Code, stipulating that the dependant shall bear the obligation of birth, death and burial, and the estate shall be owned by the dependant-the effect of the agreement takes precedence over legal inheritance and general wills, but the obligation of support must be truly fulfilled, and one parent may also sign with the dependant other than the child as an alternative to pension arrangement.
Combination suggestion: for parents who tend to "give their children their houses but are afraid of having no one to rely on in their old age", the safest combination is "directional gift + maintenance obligation clause + residence registration", which not only keeps the certainty of gift, but also locks the bottom line of residence and care in their old age. If the relationship between children deteriorates to the point that it is difficult to trust, the direct transfer of ownership will be replaced by a bequest support agreement or will be designated by a will. The right of revocation is the bottom line, not the main way-blocking the risk before the gift is far more decent and effective than going to court afterwards.
Enforcement and Children's Defense Review after 8. Revocation of Judgment
winning the revocation lawsuit is only the first step, and the attack and defense of execution and defense should keep up with: first, transfer of ownership-after the court decides to revoke the gift and return the real estate, the parents unilaterally apply for the registration of transfer of real estate with the effective judgment without the cooperation of their children (the registration authority shall handle it according to the entrustment or with the effective legal documents); Second, enforcement-if the children refuse to cooperate with the withdrawal or delivery, parents may apply for enforcement, the court may force the withdrawal and impose fines, detention and other compulsory measures. Third, risk control during the revocation period-children may transfer, mortgage and sell real estate during the lawsuit, and they should apply for property preservation to seal up the real estate at the same time when filing the lawsuit, so as to block the risk of "failed execution after judgment" before the lawsuit. Fourth, the common defense of children-"maintenance obligations have been fulfilled" (use transfer records to prove alimony, the court will review the degree and continuity of performance in substance), "the infringement is minor and does not constitute a serious act" (the court judges comprehensively according to the degree, frequency and consequences of violence), "the agreed conditions have not been fulfilled" (whether the terms of the obligation are clear). The core of parents' response is the chain of evidence: evidence of the cause of revocation (infringement, non-maintenance, non-performance) + evidence of the period (the date of knowing the cause and the date of prosecution) + preservation measures. Only when the three links are interlocked can the judgment be implemented.
9. FAQ
the house has been transferred to the children, can it be returned?
The transferred ownership can no longer be arbitrarily revoked; If the child seriously infringes on you or refuses to perform the maintenance obligations such as maintenance, it may be legally revoked in accordance with Article 663, and the return shall be requested after proof; Pay attention to the one-year exclusion period.
The children are not filial but have not beaten or scolded. Can they withdraw?
Can. It has a legal obligation to support its parents, and a long-term refusal to perform is a statutory revocation; the key is to fix the evidence of "non-performance of support" (no maintenance, refusal to care, etc.).
Is there a deadline for revocation?
There is. The donor shall exercise it within one year from the date when he knows or should know the cause of the revocation; if the donor dies or loses the capacity for civil conduct due to the illegal act of the donee, the heir or legal representative shall exercise it within six months from the date of knowledge.
Is it important to write "to be supported" in the gift contract?
Important. It is more direct to provide evidence that the agreed obligation may trigger the revocation of article 663, subparagraph (III), "non-performance of the agreed obligation.
If the children sell the house, can they cancel it?
If the third party has acquired in good faith and has transferred the ownership, the cancellation of the lawsuit is difficult to oppose the third party, can only claim compensation from the children.
Practical Experience of 10. Lawyers
after the house is transferred to the children, the road they can take is completely different from when they have not been transferred. Transfer completed, ownership has been transferred, can no longer rely on "I regret" arbitrary recovery, can only go statutory revocation, and the donee's behavior has strict requirements. Therefore, the first step for parents who want to take it back is to judge whether the facts in their hands are enough-whether the children have seriously infringed the rights and interests of their parents or their close relatives, or whether they have the obligation to support but fail to perform, or violate the obligation stipulated in the gift contract. It is very difficult to support the revocation if there is no grievance and evidence.
Statutory revocation has a rigid time limit, which should be exercised within one year from the date on which the cause of the revocation is known or should be known, and this time limit is not equal. Therefore, once the elderly decide to withdraw, they must fix the evidence as soon as possible: for example, the communication record of the children clearly indicating that they do not support them, the actual situation of life care, medical treatment and expenses and other materials that can reflect the support status, as well as the written documents originally donated. After the revocation, we have to face practical obstacles-the house may have been redisposed of by the child or mortgaged. At this time, we should consider preservation together to prevent the judgment from being defeated.
It is better to make solid arrangements beforehand than to undo them with difficulty afterwards. The gift is not only "one to give", can be through the obligation of the gift, for their own set of residence, or with the legacy of support agreements and other ways, the "housing" and "old-age" binding, so that their old age has a grip. Similarly, a realistic choice can be expressed to the children in the negotiation: if the agreed maintenance obligations can be fulfilled, the house can be retained; If the refusal continues, the parents will claim to withdraw according to law. To make the boundaries clear in advance is often better able to preserve family ties and interests than to wait until conflicts intensify and then go to court.
After the gift of real estate to children want to cancel, "transfer" is a watershed: before the transfer can be arbitrarily revoked, after the transfer can only be legally revoked. Parents should specify the agreed obligations such as maintenance in the gift contract and retain the right of residence arrangement. At ordinary times, they should keep the evidence that their children do not perform their support or commit infringement, and claim the cause in time within one year. If the time limit is delayed or the evidence is blank, the right of revocation will be lost-instead of recovering it afterwards, it is better to write down the "conditions" and leave the "back hand" when giving it.