Ningbo divorce small property rights housing processing: 4 kinds of ownership caliber.
There is no real estate right certificate issued by the state for small property right houses, and the transfer and division process of ordinary commercial houses cannot be carried out during divorce. But it is often the family's largest residential investment and property precipitation, completely ignored obviously unrealistic. In judicial practice, the court usually adopts the idea of "not confirming property rights, handling the right to use and income" for small property houses. The specific operation depends on the source of the house, construction procedures and local policies.
The Legal Orientation of the Ownership of Small Property House in 1.
Houses with small property rights generally refer to houses that are built on rural collective land, have not obtained legal planning and construction procedures, and cannot be transferred to subjects other than members of the collective economic organization. According to the "Civil Code" and land management related laws, such houses cannot be registered for real estate and do not have a complete property rights transfer function. Therefore, in divorce cases, the people's court usually does not directly confirm the ownership of the house, but deals with the right to use the house, the status of possession, the distribution of income, the return of investment and so on.
No recognition of property rights does not mean no distinction of interests
although the court will not order "who owns the house", it does not mean that the funds, labor and expected interests invested by the husband and wife are not guaranteed. A reasonable balance of interests can still be achieved in the event of divorce through discount compensation, residency arrangements, distribution of rental income, and division of interests in demolition and resettlement.
Large differences in local policy
ningbo and its surrounding areas have different attitudes towards different types of small property houses: village collective self-built houses, houses on homesteads, township enterprise factories to houses, historical illegal buildings, etc., all have different calibers in terms of demolition compensation, rights recognition, and use period. When dealing with divorce disputes, you must first learn about specific policies from the local township, village committee or demolition office.
Differences in the Treatment of Different Forms of Small Property Houses in 2.
The small property right house is not a single concept, and its legal treatment is obviously different due to the different sources and procedures of the house. Common forms include: houses on homesteads, village collective building, small property houses purchased by people outside the village, and self-built houses without planning permission.
Houses on Homestead
the right to use the homestead has the identity attribute and is usually allocated only to the members of the collective economic organization. At the time of divorce, the party who is not a member of the collective generally cannot obtain the right to use the homestead, but can claim discount compensation for the part of joint construction, renovation and decoration after marriage. The house shall be used by one of the members of the collective, and the other party shall be compensated accordingly.
The village collective building and the purchase of small property rights.
The village collective building is generally owned by the villagers or distributed according to the share, and the divorce is handled according to the rules of distribution in the village and the proportion of the husband and wife's contribution. For small property houses purchased from people outside the village, as the contract of sale is usually found to be invalid, the court may order the return of the house and the seller to refund the purchase price, at which time the husband and wife may pay the purchase price and the value-added part as a common property division.
Illegal buildings left over from history
the court usually does not deal with historical buildings that do not have legal procedures at all and are at risk of being demolished. After the administrative agency has made a determination or demolition compensation, the parties may file a separate lawsuit for the compensation. The divorce judgment may only confirm the living status of both parties to the current situation of the building, avoiding the early disposal of uncertain property.
3. Right of Use and Income Split
the house with small property rights cannot be transferred, but it can be determined which party lives and uses it and how the other party gets compensation. There is no uniform formula for determining the amount of compensation, usually with reference to the purchase price, construction investment, decoration residual value, local rent level of similar housing, the duration of the marriage and other factors of comprehensive discretion.
Distribution of rental proceeds
if the small property right house is rented and earned during the marriage relationship, the rent belongs to the joint property of the husband and wife and shall be divided in the event of divorce. Rent received may be divided in cash; rent not received may be paid by the party continuing to manage the house to the other party in proportion to the agreement or judgment upon receipt.
Maintenance of Possession
when the court orders one party to continue to live and use, it will usually specify the time limit for the other party to move out and the period of residence shall not be disposed of, sublet or rebuilt without authorization. If one party refuses to move, the other party may apply for enforcement, but the object of enforcement is limited to the act and not the confirmation of property rights.
4. Demolition Compensation Interest Ownership
when a house with small property rights is facing demolition, the compensation benefits may include the housing resettlement price, compensation for the right to use the homestead, resettlement subsidies, relocation incentives, etc. Among them, the compensation related to the investment in housing construction belongs to the divisible scope of husband and wife; the compensation related to the identity of the right to use the homestead usually belongs to the original right to use the homestead; the subsidy according to the population resettlement belongs to the corresponding resettlement population.
Arrangement of divorce agreement before demolition
if the house has been included in the scope of demolition at the time of divorce, both parties can make a pre-agreement on the distribution of demolition benefits in the divorce agreement: clarify their respective shares, who will sign the demolition agreement as the representative, the distribution method and liability for breach of contract after the compensation is received. Such agreements are usually binding, provided that they do not violate mandatory provisions.
Re-litigation of New Demolition Interest after Divorce
if the house has not been demolished at the time of divorce and compensation is obtained due to policy adjustment after divorce, if the divorce agreement or judgment is not dealt with, the parties may file a separate post-divorce property dispute lawsuit for the newly generated compensation. The key is to prove that the compensation is derived from a joint investment during the marriage.
5. Agreement Attribution and Risk Alert
the husband and wife can agree on the use, income and demolition benefits of the small property right house during the marriage, but the agreement cannot change the legal status of the property right of the house. For example, the agreement that "the house is owned by one party" does not enable the house to obtain legal property rights; the agreement that "the compensation for demolition and relocation is all owned by one party" may be valid without violating the resettlement policy.
The validity risk of the contract of sale.
Small property rights housing sales contracts are often found to be invalid, the buyer may face the return of the house, only the return of the purchase price and interest situation. If the house is purchased from outside the village at the time of divorce, the court usually does not confirm the ownership of the house, but deals with the return of the purchase price and the reasonable sharing of the loss.
Restrictions on Inheritance and Re-assignment
small property houses cannot be inherited or freely transferred to non-collective members like commercial houses. The provisions of the divorce agreement relating to the inheritance and transfer of children or other non-collective members may be difficult to implement because of the violation of land management policies. It is proposed to agree on the allocation of the right to use residence or compensation, rather than the transfer of ownership.
6. case proof
according to similar adjudication rules, if a husband and wife build a small property right house on the village collective land after marriage and fail to register the legal property right, the court usually does not confirm the ownership of the house, but judges it to be used by one member of the collective economic organization and pays the other party a partial discount for joint construction and decoration after marriage. The compensation amount refers to the local building cost and decoration residual value, which is usually in the range of tens of thousands to 200,000 yuan. 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 judgment rules, if the purchase of a small property right house from people outside the village during the marriage relationship and the contract is found invalid, the court usually decides that the seller should return the purchase price and interest, and the husband and wife should divide the returned or determined refundable amount according to the common property. If the house has been included in the scope of demolition, the replacement of the building and the joint investment in the demolition compensation can be claimed separately. 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
- attempts to directly divide the ownership of the house: small property houses cannot handle the transfer of property rights, the court usually only deals with the right to use and income.
- Ignore the identity attribute of homestead: non-collective members cannot obtain the right to use the homestead, but can only claim joint investment compensation.
- The divorce agreement stipulates the transfer of ownership: violates the land management policy and may not be fulfilled.
- No pre-agreed demolition interests: after the divorce of the house demolition, the two sides on the attribution of compensation disputes again.
- The purchase contract is invalid and not processed: When the seller claims to return the house, the funds invested by the husband and wife may only receive the original price and interest.
8. FAQ
can property rights be divided when a small property room is divorced?
generally cannot. Small property houses do not obtain legal real estate registration, the court usually does not confirm the ownership, but deals with the right to use, possession status and income distribution.
Non-villagers built houses on the homestead after marriage. Can divorce be divided?
You cannot directly obtain the right to use the homestead, but you can claim discount compensation for the part of the joint construction, decoration, and renovation after marriage, and the members of the collective will continue to live and use it.
The house with small property rights will be demolished. How will the compensation be divided during divorce?
The compensation related to the investment in housing construction belongs to the common property, the compensation related to the status of the right to use the homestead belongs to the original right holder, and the subsidy according to the population resettlement belongs to the corresponding resettlement population. The distribution method can be agreed in advance in the divorce agreement.
Is it valid for the divorce agreement to write a small property right house?
Agreed use rights and distributions of proceeds are usually valid, but agreed transfers of ownership or transfers to non-collective members may be difficult to perform or ineffective because of violations of land management policies.
Practical Experience of 9. Lawyers
there is no real estate right certificate issued by the state, and the transfer and division process of ordinary commercial housing cannot be carried out during divorce, but this does not mean that it is not dealt. The court usually does not directly confirm the ownership of the house, but makes arrangements for the right to use, the status of possession and the distribution of proceeds. Therefore, the parties concerned should not insist on "whether they can be awarded to me", but should first find out how the suite came from-whether it was built, purchased or resettled, and how the construction procedures and local policies determine how the benefits can be distributed in the end.
In the realization of value, several paths can be used in combination: negotiation by one party to continue to live and use, the other party to obtain discount compensation. What needs to be reminded is that because the house cannot circulate freely, it is difficult to evaluate and realize it. It is easy for both parties to talk about the discount. Therefore, it is better to put out the input cost, living years, loan repayment or decoration expenses to form a rough compensation benchmark instead of empty talk about the market price.
The agreement also includes all the risks: who will be compensated for future demolition, what to do if disputes arise, and how to ensure the actual use when the house cannot be transferred. Due to the policy uncertainty of ownership, a single agreement may not be able to counter external risks, so it is better to record the contribution and attribution in writing during the marriage. In the negotiation, the other party often uses "this house is illegal and cannot be divided" to lower your share. What you have to do is to calculate the real investment and living benefits in the past clearly, and advocate reasonable compensation or income distribution, instead of accepting the statement of "not giving a cent.
The key to the divorce of a small property right house is to accept the reality that it cannot divide the property rights according to ordinary commercial houses, and instead achieve a balance from the perspectives of use rights, income, demolition benefits, and joint investment compensation. The four factors of homestead identity, housing source, construction procedures and local policy jointly determine the treatment scheme. In practice, it is suggested to verify the nature of the house and the possible resettlement policy with the village committee, township government or demolition department before suing, and then decide whether to claim the right to live or wait for compensation for demolition. When signing a divorce agreement, avoid using expressions such as "ownership to one party" that cannot be performed, and use enforceable agreements such as "right to use residence" and "share of compensation for demolition.