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Ningbo divorce affordable housing and price-limited housing division 4 rules

Ningbo Author：LuXu WANG

Affordable housing and price-limited housing have been in the name of husband and wife for many years, and whether and how to divide them during divorce is often more complicated than commercial housing. This kind of house carries policy restrictions and husband and wife's contribution at the same time. The court will not simply follow the title certificate one size fits all, but will first ask three questions: who obtains the qualification to buy a house, who pays the purchase price, and whether the restrictions on listing and trading have been lifted. The answers are different, and the segmentation results may differ by hundreds of thousands of dollars.

Special Attributes of 1. Affordable Housing and Price-Limited Housing

both affordable housing and price-limited commercial housing have the nature of social security, and their purchase qualifications, prices, and transfer conditions are subject to the dual constraints of local government regulations and purchase contracts. The provisions of Article 1062 of the Civil Code on the joint property of husband and wife are still applicable, but houses are usually closed before listing and trading, and cannot be freely transferred, mortgaged or evaluated at the market price of ordinary commercial housing. Divorce division must first identify its policy attributes, and then decide whether to divide according to property rights, according to the right to use the discount or to be dealt with separately after the conditions are achieved.

Common limitations of the two types of housing

first, the qualification to buy a house is personally dependent, usually based on the household registration, income and housing difficulties of one or both parties; second, there are provisions in the contract or local documents such as priority repurchase rights, supplementary payment of land income, and five years or longer closure period; third, there is a policy discount between the market evaluation price and the freely tradable price, and the price of surrounding commercial housing cannot be directly used as the basis for division. Ignoring these limitations can result in unfulfilled or unfair segmentation schemes.

Registration of property rights does not mean full divisibility.

Even if the real estate certificate is registered as shared by both husband and wife, it does not mean that it can be realized at market price immediately. If the house is still in the restricted transaction period, the court is more inclined to dispose of the right to use or award the right to live by the eligible party and pay the other party a discount compensation.

The time of 2. purchase and the source of capital contribution determine the ownership.

Dividing affordable housing or limited-price housing, first judge whether the purchase occurred before or after marriage. If one party purchases and registers in his name with personal qualifications and property before marriage, the part of the loan repayment after marriage and its corresponding value-added belong to the common property, but the ownership of the house is still biased in principle to the original buyer. If the joint property is purchased after marriage or the joint application is made by both parties, it is usually recognized as the joint property of the husband and wife, regardless of whose name it is registered.

The characterization of parental contributions and unit subsidies.

If there is a parent's contribution in the purchase price, it is necessary to look at the transfer postscript, IOU and registration. If there is no clear meaning of borrowing, the capital contribution after marriage is mostly regarded as a gift to the husband and wife, while the capital contribution before marriage tends to be regarded as a gift to their own children. Unit subsidies, length of service discounts, housing subsidies and other parts with the color of status benefits, usually belong to the purchase of eligible parties, but the corresponding housing appreciation may still be included in the scope of common property.

Pre-marital qualifications Mixed situations of post-marital home purchase

one party before marriage to obtain the qualification of affordable housing purchase, after marriage to pay the house with common property and registered in the name of both parties, judicial practice is more recognized as the joint property of the husband and wife, but the division ratio will take into account the qualification contribution party, usually not mechanical half-and-half, but discretionary 55% to 65% the proportion.

The method of division in which the 3. has acquired full property rights.

If the house has met the conditions of listing and transaction and can be freely circulated after paying the land income, it can be divided according to the idea of ordinary commercial housing: one party acquires the house and pays discount compensation to the other party, or the two parties agree to sell and divide the sale price. The amount of compensation is generally determined by deducting outstanding loans, land proceeds due and related taxes and fees at the market price negotiated or assessed by both parties.

Selection of evaluation benchmarks

the market price in the free-to-market trading state should be selected instead of the contract price at the time of purchase of the limited-price house. If the two parties cannot reach an agreement on the price, they can apply to the real estate appraisal agency for evaluation, and the open market value after the policy restriction has been removed shall be stated in the evaluation report. The assessment fee is usually paid in advance by the applicant and ultimately shared on a liability or proportional basis.

Pre-purchase of houses without title certificate

if the property right has not been registered, the court usually only deals with the contract rights and interests, that is, the qualified party continues to perform the purchase contract, and then handles the division or compensation after obtaining the full property right; it may also clarify the ownership of the right to use the house and the amount of compensation in the judgment, so as to avoid the long-term dispute between the two parties.

Treatment of the right to use when the 4. does not obtain full property rights

most affordable housing is still in a restricted transaction period at the time of divorce, and the court should not directly order the transfer of ownership to a party who is not eligible to buy a house. At this time, it is common practice for the party who has qualified for the purchase to continue to use the house and pay the other party a discount compensation. The discount is usually based on the present value of the house, and after deducting land income, taxes and unpaid loans, it is calculated according to the share of both parties.

Balance of the right of residence and compensation

if the party acquiring the house is unable to pay the compensation in a short period of time, the court may allow the payment to be paid in instalments or make it clear in the judgment that the compensation will be settled together with the value-added portion of the house to be listed. This treatment not only protects the property of policy housing, but also takes into account the property interests of non-eligible parties.

The influence of child support factors on housing ownership.

The party raising minor children is usually given priority in meeting basic housing needs. If the house is the child's main place of residence, the court is more likely to award the residence of the party directly raising the child and the other party to receive compensation. But this is not absolute, still need to combine the purchase qualification and ability to pay.

5. Listing Trading Restrictions and Discount Compensation

the closure period or priority repurchase clause of limited-price housing and affordable housing will directly affect the realizable value of the house. When calculating discount compensation, the liquidity discount brought about by policy restrictions must be taken into account. If the full market price is divided, the party acquiring the house may not be able to realize the value in the future; if the full purchase price is divided, the joint investment is significantly underestimated. In practice, more than the use of compromise ideas, that is, reference to the surrounding commercial housing prices of 70% to 90% as a split value.

Undertaking of supplementary payment of land proceeds

if the listing transaction requires a supplementary payment of land proceeds, the cost is usually borne by the party acquiring the house, as the transfer can only be realized after the supplementary payment; if the parties agree in the agreement to be shared by the other party, they agree from it. In the absence of an agreement, the court tends to pre-deduct the payment from the value of the house before dividing it.

Secondary Segmentation of Future Value Added

for houses that have not yet lifted the restrictions on transactions, the divorce judgment may expressly reserve the right of the other party to claim a separate value-added division after the restrictions are lifted. This approach avoids assessing the uncertain value of the future in advance and prevents one party from monopolize the value added after the conditions have been fulfilled.

6. case proof

according to similar adjudication rules, if the affordable house purchased with the joint property of the husband and wife after marriage has obtained the full property right at the time of divorce but has not yet reached the listing transaction period, the court usually decides that the party with the qualification to purchase the house should continue to use it, and determines the compensation base after deducting the land income payable by reference to about 80% of the price of the surrounding commercial house, and the acquiring party should pay the corresponding discount of its share, the common compensation amount is in the range of 100,000 yuan to 600,000 yuan, depending on the area and location of the house. 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.

According to similar adjudication rules, if one party obtains the qualification of affordable housing before marriage, pays the house price with common property and registers it in the name of both parties after marriage, the court generally recognizes it as the common property of husband and wife, but the division proportion will consider the contribution of the qualification for purchasing the house, and the qualified party will be awarded the house and pay compensation, the proportion is usually between 55% and 65%, and the compensation amount will fluctuate with the present value of the present value of the house and the duration of the marriage relationship. 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

  • directly assessed at the market price of commercial housing: failure to take into account listing restrictions and land gains will result in compensation schemes that are too high and unfulfilled.
  • Ignoring the personal attributes of eligibility to buy a house: awarding the house to an unqualified party, subsequent failure to transfer ownership or violation of the repurchase agreement.
  • No agreement on future value-added division: after the restriction is lifted, one party has exclusive value-added and the other party has to sue again.
  • Parents' contributions are not documented: the nature of the contribution is identified as a gift rather than a loan, affecting the split ratio.
  • Failure to identify the obligation to pay back land proceeds: the omission of large fees in the calculation of the discount, resulting in an imbalance in the results of the division.

8. FAQ

can affordable housing divorce be divided according to the market price?

Not necessarily. If the house is still in the restricted trading period, the court usually does not divide it directly according to the full market price, but disposes of the right to use or compensates at a discount after deducting land income and taxes; after the listing conditions have been met and the relevant fees have been paid, the court can refer to the market price of ordinary commercial housing.

One party before marriage to obtain qualifications, after marriage to jointly contribute, how to divide the divorce?

It is mostly recognized as the joint property of the husband and wife, but the division ratio will take into account the contribution of the party who obtained the qualification to buy the house before marriage, usually by the qualified party to obtain the house and pay compensation, the proportion is between 55% and 65%, not simply half and half.

What if the affordable housing hasn't got the real estate certificate at the time of divorce?

The court usually deals with the attribution of contractual interests or rights of use, with the eligible party continuing to perform the contract, pending the acquisition of full title before dividing or claiming it separately.

Who is responsible for the land revenue supplement?

Generally borne by the party that acquires the house and eventually goes public, the court tends to calculate the compensation after deducting it from the value of the house in advance in the absence of an agreement.

Practical Experience of 9. Lawyers

affordable housing and price-limited housing are hung in the name of husband and wife, and divorce and division are often much more than commercial housing, because such housing is accompanied by policy restrictions and husband and wife's contribution. Before starting, ask three questions: who obtained the qualification to buy a house, who paid for the purchase, and whether the restrictions on listing transactions have been lifted. These three answers are different, and the segmentation scheme may be very different. Even if the house is registered on the title certificate as jointly owned by husband and wife, it does not mean that it can be realized at the market price immediately-in the closed period, the court often prefers to deal with the right to use it first, or to award the eligible party to live and compensate at a discount to the other party, and then deal with the value-added part separately after the restriction is lifted.

Qualitatively, first look at whether the purchase is made before or after marriage, and then look at where the money comes from. Before marriage to a party qualification and property purchase, registered in its name, the ownership of the house is generally biased towards the original buyer, but after marriage repayment part and its corresponding value-added belongs to the common property, to be calculated separately, repayment and capital contribution should have clear payment time and capital flow evidence. In addition, the unique restrictions of such houses cannot be ignored: the qualification for purchasing houses is often personally dependent, and there may be provisions in contracts or local regulations such as preferential repurchase rights, supplementary payment of land income, and a five-year or longer closure period. The evaluation should be based on the tradable price, and the prices of surrounding commercial houses cannot be directly applied. Otherwise, the calculated number cannot be implemented and it is easy to be unfair.

Operationally, first find out the purchase contract, qualification documents, capital contribution certificates and closed period clauses, judge that the house is not in a listed state, and then decide which division path to take: those with conditions can be divided or discounted according to property rights; If the conditions are not met, the right to use the house shall be arranged first, or the other party shall take a discount through negotiation, and the value added shall be processed after the conditions are fulfilled. During the negotiation, this "policy discount" should also be made clear. The other party bites the market price of commercial housing, while the other party is only willing to give the policy price, and there is no way to talk about it. Only when the three things of qualification, capital contribution and restriction are put on the table can the plan be discussed, judged and implemented.

The core of the division of affordable housing and limited-price housing is to first remove the confusion between policy attributes and marital property attributes. The four elements of purchase qualification, capital contribution time, property right registration and transaction restriction should be examined separately, and the idea of average division of commercial housing cannot be simply applied. In practice, it is suggested to obtain the purchase contract, loan contract, land income supplementary payment clause and real estate register before filing a lawsuit to clarify whether the house has the listing conditions. If not, the right of value-added division after the restriction is lifted should be reserved in the agreement or judgment in advance to avoid further litigation due to the sharp appreciation of the house in the future. Involving parental contributions or unit subsidies, but also to retain the transfer vouchers and related instructions, to reduce the nature of disputes.