Insights

Can one party in Ningbo privately sell the house and the other party recover it?

Ningbo Author：LuXu WANG

Whether the house is registered under the names of two people or only one person's name is written, as long as it belongs to the joint property of husband and wife, the right of disposition is not unique to one person. But in reality, it is not uncommon to quietly list, sign contracts or even transfer ownership. When the other half realized that the property right had fallen under someone else's name, the question became two: whether it could be returned, or who should claim the loss.

Why can't 1. common property be decided by one person?

Article 1062 of the the People's Republic of China Civil Code stipulates that husband and wife have equal rights to deal with common property. The purchase and sale of a house is a major act of disposition and shall be agreed upon by both parties through consultation. A house in which only the name of one party is registered is still common property if the purchase is financed by post-marital income, and the registration of the name does not amount to a separate right of disposition.

Writing only one name is no exception

the real estate register has the effect of presumption of rights. It is the registered right holder that is publicized to the public. This solves the problem of transaction security and does not change the property ownership within the husband and wife. In practice, it is precisely the houses registered unilaterally that are most likely to be sold unilaterally, because the buyer cannot see the common relationship from the registration information, and it is difficult for the intermediary and the online signing link to find it voluntarily.

The confrontation between 2. no right to dispose and bona fide acquisition

the unauthorized sale of a common house by one party constitutes no right to dispose of it. However, the right to dispose of the house does not of course lead to the return of the house, the result depends on whether the buyer constitutes a bona fide acquisition. This step is the winner of the whole case.

The validity of the contract and the change of real right should be viewed in layers.

The contract of sale itself is usually valid, and the right to dispose of it does not affect the validity of the contract, but may give rise to liability for breach of contract. What really determines the ownership of the house is the change of property rights: if the buyer meets the elements of good faith acquisition, the original co-owner can only claim compensation.

How to judge the three elements of 3. goodwill acquisition.

The transferee is transferred in good faith, at a reasonable price, and has completed registration in accordance with the law, the three conditions must be met at the same time, one is indispensable. Much of the controversy has focused on the first two.

1. Good faith and reasonable price judgment.

Good faith means that the transferee does not know and should not know that the transferor has no right of disposition. If the buyer is a close relative of the seller, the transaction process is obviously abnormal, the house has been lived by the other party and the buyer has never looked at the house, the goodwill determination will be shaken. Reasonable prices are usually based on the transaction price of the same lot in the same period, which is significantly lower than the market price, which may either deny good faith or be deemed to conceal the true purpose at a low price.

2. The weight of the completed registration step

if the transfer has not yet been processed, the co-owner advocates that the odds of blocking the transaction are significantly higher, which is also the reason why the time must be rushed after the abnormality is discovered. Once the transfer is completed, the difficulty of claiming return increases exponentially, and the focus of the case usually shifts from returning the house to calculating the loss at present value and claiming compensation.

The path of relief when the 4. cannot be traced back

the house does not come back, and the relief is not over. The co-owner may convert this disposition into a monetary claim against the disposition party in a divorce or post-divorce property dispute.

No distinction between damages and minor points

losses are generally calculated at the present value of the home rather than the transaction price, as unauthorized sales deprive the co-owner of the opportunity to continue to hold and enjoy the value added. At the same time, Article 1092 of the Civil Code stipulates that if one party hides, transfers or sells the joint property of husband and wife, it may be divided less or not at the time of divorce and division; if the whereabouts of the money is unknown and the reasonable use cannot be explained, the possibility of transferring the common property is very high.

Instant action after 5. find signs

the outcome of such disputes is highly dependent on the speed of reaction. It is often only a few weeks from listing to transfer, and the house has already changed hands by the time the judgment is decided.

Objection Registration, Preservation and Order of Action

the first step is to apply to the real estate registration agency for objection registration, and at the same time inform the intermediary and the buyer in writing that there is a common dispute. This step can effectively penetrate the other party's good faith defense in the future; the second step is to apply to the court for property preservation, seal up the house or freeze the sale. The third step is to file a lawsuit for divorce and property analysis or to confirm that the disposition is invalid. The order is reversed and often all previous efforts are wasted. In Ningbo, objection registration can be applied directly to the district/county (city) real estate registration agency where the house is located, and preservation is submitted to the Ningbo District Court with jurisdiction; Yinzhou and other courts implement divorce litigation property declaration in family trials, and the litigation can require The other party truthfully declared the real estate under his name.

6. case proof

in practice, if the house purchased after marriage registered in the name of one party is sold without authorization, the buyer pays at the market price and has completed the transfer of ownership, and the transaction process is normal, the court usually determines that it constitutes a bona fide acquisition and does not support the return of the house. However, if the other party claims compensation for losses, it is calculated by deducting the other party's share from the market value at the time of the judgment, taking the present value of the house of 3 million yuan and the selling price of 2.4 million yuan as an example, the amount of compensation often fluctuates around $1.5 million. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

In practice, if the object of sale is a close relative of the transferor, the transaction price is significantly lower than the price of the same lot in the same period and the price is not actually paid, the court tends to deny the buyer's good faith, determines that the disposition does not have effect on the other party, and supports the registration of the sale and the restoration of the original state. In such cases, if the co-owner has registered the objection or applied for preservation before the transfer, the success rate is significantly higher. In similar cases, the amount of division or compensation is usually in the range of $100000 to $3 million, depending on the size of the property and the circumstances of the evidence.

7. Risk Alert

  • oppose only verbally: it is difficult to deny the goodwill of the other party in the future if the objection is not registered and the buyer is not notified in writing.
  • Negotiation before preservation: wait until the negotiation breaks down and then apply for seizure, the house has often been completed transfer, relief costs soared.
  • Claim according to the transaction price: the loss is calculated by the amount sold by the other party at a low price, which is equivalent to locking in the difference for the other party.
  • Ignore the whereabouts of the sale: not tracking the flow of money may miss the opportunity to claim less or no common property.
  • Mistake that the contract is invalid and the house can come back: the validity of the contract and the ownership of real rights belong to two layers, and the request is easy to write wrong after confusion.
  • Over the statute of limitations: if a transfer is discovered after divorce, it should be filed within three years from the date of knowledge.

8. FAQ

the house only has the name of the other party written, can I still be counted as a co-owner?

Can. A house purchased after marriage with common property, regardless of whose name it is registered, is generally the common property of the husband and wife. Registration solves the external publicity and does not change the internal attribution.

The buyer is a friend of the other party, can you determine that it is not goodwill?

It's possible. The acquaintance transaction itself does not necessarily negate good faith, but combined with the obviously low price, the payment is not actually paid, never on the spot to see the house and other circumstances, the court often determines that the buyer should be aware of the existence of a common dispute.

The other party sold the house and transferred the money. What should I do?

First apply for property preservation to freeze the relevant accounts, and then track the whereabouts of the funds through the bank flow. If the other party is unable to explain the reasonable use, it may claim that it transfers the common property and requests less or no division at the time of division.

The transfer has already been made. Is it necessary to prosecute?

It is necessary. Even if the house cannot be recovered, it may still claim compensation for the loss at present value and claim that the other party has a small share in the division of the common property. A waiver of the suit amounts to a waiver of both remedies.

Practical Experience of 9. Lawyers

if the common property is secretly sold by one party, whether it can be returned depends on whether the buyer constitutes a bona fide acquisition, rather than on the other party's "private" matter itself. If the buyer acquired the house without knowing it, at a reasonable price, and after registration, your claim will turn to compensation. If the buyer knows that the property is shared, the price is obviously unreasonable, or the registration has not been completed, the recovery space is much larger. Therefore, after discovering the signs, the first thing is to check where the transaction has gone and whether the transfer office has done it.

Time is crucial. Once it is aware that the other party is listing, signing a contract or preparing to transfer ownership, it can sue and apply for property preservation as soon as possible, freeze the transfer and re-disposition of the property, and at the same time fix the evidence such as net signature, fund exchange, intermediary record, etc. Whether the sales contract is valid and who the house ultimately belongs to should be seen separately: the contract may be valid, but whether the real right change can be completed is the key to determining whether you can get the house back. Don't spend time on "whether the contract is valid", freeze what can be frozen first.

If the house cannot be recovered, the request falls on compensation: claiming that the other party disposes of the common property without authorization, requires the other party to divide less or not, and claims separately for the loss. In the negotiation, you can use the mentality of the other party's eagerness to clinch a deal and fear that the deal will be investigated as a bargaining chip, and use a clear amount of compensation and payment arrangements to talk about, rather than entangled in accusations. I also remind myself to keep the bottom line on this side and not to sign documents that ratify the sale or waiver of rights during the negotiation period. A word or a word may change the future characterization.