Insights

How to divide demolition houses, public rental houses and parking spaces during divorce in Ningbo

Ningbo Author：LuXu WANG

The raising of 1. issues

A couple divorced, and the family had a house owned by the husband's parents before marriage, which was demolished after marriage and resettled a new house. Another set of public rental housing is rented under the man's name. There is also an underground parking space without a title certificate in the community.

The woman wants to know whether and how these things can be divided during divorce.

This paper will focus on the above issues, from the legal provisions, practical operation, typical cases of three dimensions of the system.

2. legal basis

  • joint property and personal property of husband and wife: Article 1062 of the Civil Code stipulates that wages, bonuses, income from production and operation, inherited or donated property, etc. obtained by husband and wife during the existence of the marriage relationship shall be the joint property of husband and wife; Article 1063 of the Civil Code stipulates that the premarital property of one party and the compensation or compensation obtained by one party due to personal injury shall be the personal property of one of the husband and wife.
  • The handling of the purchase of a house funded by parents: Articles 5 and 8 of the Interpretation (II) 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 stipulate that when the joint property of the husband and wife is divided by divorce, if the parents contribute to the purchase of the house, the house may be ruled to belong to the children of the investor according to the source of the capital contribution, the duration of the marriage relationship, and other circumstances, and reasonable compensation shall be given to the other party.

3. core points

1. Demolition of houses: the key depends on the right of origin and the resettlement population.

If the demolished house is the personal property of the party before marriage, and the resettlement house is only replaced according to the original property area, it is generally still recognized as personal property. However, if the placement takes into account the demographic factors of the spouse, such as the size of the head or compensation, the spouse may claim the corresponding compensation. Ownership determination can refer to the Zhejiang High Court's "Answers to Several Questions Concerning the Trial of Marriage and Family Cases" (Gao Fa Min -1 [2016] No. 2) on the nature determination rules of premarital payment for house purchase and post-marital registration of property rights; If the difference in area is paid with the common property of husband and wife during resettlement or there is a situation of joint repayment after marriage, please refer to Ningbo Intermediate People's Court's "case" statement "and case" and divorce, how to "? (2014-08-05) The judge of the Middle Beilun Court calculates compensation.

2. Public rental housing: only the right to lease can be negotiated or judged.

The ownership of public rental housing belongs to the state or unit, and the husband and wife only have the right to use the lease. In the event of divorce, the court usually decides that one party should continue to rent the house and the other party should move out or receive appropriate assistance, but it cannot directly divide the ownership of the house, depending on the source of the house, the need to raise children, the economic situation of both parties, etc. After the judgment that one party continues to rent, it still needs to obtain the consent of the property right unit and go through the procedures for the change of the lessee. The management of public rental housing and the identification of co-residents in Ningbo are subject to the regulations of the local housing security department and the property right unit, and it is recommended to communicate in advance.

3. Parking spaces: divisible with title certificate, difficult to divide without title certificate

parking spaces with independent title certificates are divisible property, and it is necessary to determine whether they are purchased before marriage or after marriage, and in whose name they are registered. Parking spaces with only the right to use and no title certificate generally cannot be divided as property rights in the event of divorce, and can only negotiate who will continue to use them or return them to the developer. According to the Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), more than 99% of divorce cases involve property division, and right-of-use assets such as parking spaces should also be explicitly dealt with in the division plan.

4. boundary conditions

  • the demolition and resettlement agreement is the core evidence: if the agreement clearly records that the spouse is the resettlement population, or if the resettlement area is calculated according to the head, the division of the rights and interests of the spouse is more basis.
  • The change of public rental housing requires the consent of the property right unit: after the court decides that one party continues to rent, it is usually necessary to go through the procedures for the change of the lessee, and some units have internal audit procedures.

5. operational steps

  1. to obtain the data of demolition and resettlement agreement and original house property right: Confirm the source of houses to be demolished, calculation method of resettlement area and resettlement population.
  2. Inquire about the lease contract for public rental housing: specify the management requirements of the lessee, co-residents and units.
  3. Verify the ownership of parking spaces: whether there is a title certificate, purchase contract, invoice and registration.
  4. Priority negotiation, if necessary, apply for assessment: for divisible properties and parking spaces, if negotiation fails, you can apply for discount compensation after judicial assessment.

6. common mistakes

myth 1: The demolition house obtained after marriage must be the common property of husband and wife. Positive solution: If the demolition comes from the pre-marital personal property and does not take into account the spouse's demographic factor, the resettlement house may still be considered personal property.

Myth 2: Public rental housing can become one's own house after living for a long time. Positive solution: the property right of public rental housing belongs to the state or unit. In the event of divorce, only the right to use the lease can be handled, and it cannot be divided according to the property right house.

The ownership determination of demolished houses, public rental houses and parking spaces is more complicated. It is suggested that the relevant contracts and ownership data should be sorted out before divorce, and then the division scheme should be determined.

Summary of 7. relevant laws and regulations

the main legal provisions covered in this paper include:

  • article 1063 of the Civil Code
  • article 1062 of the Civil Code
  • article 5 of the Interpretation (II) 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

8. Practical Operation List

if you are facing related problems, it is recommended to follow the following steps:

  1. collect evidence: organize all written materials, transfer records, chat records, etc. related to the case;
  2. consult a professional: before taking any action, it is recommended to consult a professional lawyer to understand their rights and possible legal consequences;
  3. assessing costs and benefits: litigation requires time and economic costs, which need to be combined with the amount of the case and the probability of winning the case;
  4. choice of dispute resolution: give priority to negotiation or mediation, and consider litigation if no agreement can be reached;
  5. note the statute of limitations: the law does not protect the person lying on the right to sleep, be sure to claim the right within the statutory statute of limitations.

Practical Experience of 9. Lawyers

the trap of this type of property is that it "looks like common property, but in fact it is different in nature". Demolition of houses depends on the source of the original house and the resettlement population: if the house of one of the parents before marriage is demolished, the ownership and compensation of the resettlement house should be divided one by one, and cannot be divided into common property. The first step is to get the resettlement agreement, compensation details and resettlement population list, see how the house came from, who was resettled at that time, and then talk about how to deal with it. As soon as many parties hear "demolition", they acquiesce in common property, which is precisely the first step.

Public rental housing usually has no property rights. What can be handled is only the lease and the right to use, not the division of ownership. Parking spaces depend on whether there is an independent property right certificate. Those without a certificate can only deal with the right to use or income. Therefore, in the face of these properties, first distinguish which of "property rights, use rights, or income", and then determine what and how to divide it, otherwise the plan will not be implemented even if it is beautifully written. The identification of the right form is the most easily ignored and the most influential step in such cases.

Evidence and negotiation should be matched. Collect resettlement agreement, property right registration, payment and residence records, household registration and population information; The party who wants to continue to live and the party who gets compensation will be settled separately, and the "who continues to live and who gets the money" will be clearly stated in the agreement, so as to avoid writing the terms but failing to implement them. If the resettlement involves the interests of the elderly and children, it should be considered separately, and it should not be divided between two people. When talking, it is much more useful to put the direction of each property into concrete arrangements than to agree on "joint consultation" in general.