Ningbo each other secretly sell house divorce how relief

Most of the marital property belongs to the joint property of the husband and wife, but the registration often only writes the name of one party. One party sold the house while the other party was unprepared, and the money may not be in the account when it was discovered. The Civil Code and the Marriage and Family Code Interpretation (II) give a relief path for such unauthorized punishment, and this article is explained in the order of "qualitative-recovery-compensation when it cannot be recovered-prior prevention.

The Legal Characterization of Unauthorized Disposition of 1.

Property purchased with common property during the marriage, even if registered in the name of one of the parties, is still jointly owned by the husband and wife, and major sanctions should be consistent in principle. If one party sells without the consent of the other party, the other party may claim that the disposition harms the interests of the common property. Article 7 of the (II) for the Interpretation of Marriage and Family of the Civil Code clarifies that if one of the spouses, for the purpose of violating the duty of loyalty, such as bigamy or cohabitation, gives the common property to another person or disposes of it at an obviously unreasonable price, the relevant civil legal act may be deemed invalid, and the party without fault has the right to request the return. If it is sold to a bona fide third party, it enters the measurement of bona fide acquisition and compensation.

Registration in the name of a person does not mean that he can be punished alone.

The registration of immovable property has the effect of publicity, but the characterization of the common property within marriage does not change by the registered name. One party's arbitrary sale on the grounds that "the real estate certificate is only my name" cannot fight the other party's common rights. Whether the other party knows or not affects whether it can be recovered from the buyer, not the common attributes of the property itself.

Three Conditions of 2. Bona Fide Acquisition

if the house has been transferred to the buyer, whether it can be recovered depends on whether it constitutes a bona fide acquisition: whether the buyer is in good faith (I do not know and should not know the unauthorized disposition), whether a reasonable consideration has been paid, and whether the real estate registration has been completed. If one of the three conditions is missing, the other party has the right to request return. In practice, "obviously low price" is the breakthrough-transactions far below the market price are easy to be identified as non-goodwill.

The price is obviously low is the breakthrough

if the transaction can be made at a market price of 30%, 50% or even lower, or if the buyer is a relative or related party of the disposition party, the court often suspects that it is not good faith. The passive party shall obtain the recent transaction price and evaluation report of the same community to prove that the consideration is obviously unreasonable, so as to block the good faith acquisition and claim the return.

Relief in the event of non-recovery of 3.

If the house has fallen into the hands of a bona fide buyer and cannot be returned, the passive party is not helpless: it may, in accordance with Article 1092 of the Civil Code, dispose of the party without authorization to divide or divide the common property. The two paths can be used together-both to reflect punishment in the division of property and to claim compensation for specific losses.

The two remedies can be used together.

Return of the house and compensation price in principle to choose one, but "in the division of less" and "on the loss of compensation" can be superimposed claims. In practice, if one party transfers the common property to a relative at a low price without authorization during the marriage, the court finds that it is not a good faith disposition and orders the return.

Key Actions 4. Precautions in Advance

when it is found that the other party has a sign of selling a house, the most effective action is to seal up: apply for property preservation in divorce proceedings or property disputes, and freeze the transfer. Objection registration can be used as a transitional means to block transactions before the right is confirmed. Prevention is far better than post-event litigation-once the transfer is completed, the cost and uncertainty of recovery rise sharply.

1. Sealing is much more effective than after-the-fact litigation.

Before the property is transferred, the preservation and seizure can directly stop the transaction, which is the most cost-effective protection. It is suggested that when the other party is aware that it is ready to sell, vacate and frequently look at the house, it should immediately consult a lawyer to start the security, instead of waiting until the transaction is completed.

2. Registration of objections may be transitioned

if there is any objection to the registration, it may apply to the real estate registration agency for objection registration and block the punishment based on the registration in a short period of time. Objection registration has a time limit, need to link litigation or preservation, to avoid expiration.

How do 5. find signs of disposal?

The premise of prevention is early detection. The status of real estate registration can be checked regularly, paying attention to whether the house is listed, whether it is frequently taken to see, whether the other party suddenly vacates or transfers the key. The whereabouts of the price should also be traced-the flow of funds to the accounts of relatives may constitute a hidden transfer and can be claimed together.

1. Regularly check the registration status is the most convenient

real estate registration information can be queried by formalities, regular verification of marital real estate whether there is a mortgage, seizure, transfer notice, can be early warning before the completion of the transaction. More efficient than flipping through chat records afterwards.

2. The whereabouts of the price should be traced together.

Even if the house has been sold, the sale is still a common property clue. If the price enters the account of the other party or relatives, it may be included in the claim of division and return.

Adverse consequences of 6. segmentation

A party who disposes of a common property without authorization is at risk of a small or no division in the event of a divorce. The court will determine the extent of the penalty by combining the motive for the disposition, the reasonableness of the consideration, and the direction of the payment. According to Yinzhou Court's White Paper on the Trial of Marriage and Family Cases (2019-2021), more than 99% of divorce cases in Ningbo involve the division of property, and real estate is the most concentrated subject of dispute. The local court's review of the unauthorized disposal of common real estate within marriage is particularly detailed. This means that "secretly selling" not only does not necessarily preserve the benefits, but may suffer losses in the division.

7. case proof

in practice: the husband's marriage will be registered in their own name of the common property to his brother at a significantly low price, the wife sued for non-bona fide acquisition, the court combined with kinship and low consideration to determine the disposition is invalid, ordered the return of the house and resume registration.

In practice: one party sells the house without authorization and the buyer has acquired it in good faith, the wife is unable to recover the house, the court in the divorce division of the unauthorized disposition of the party to give less points, and its disposition caused by the loss of the difference in compensation.

8. Risk Alert

first, a marital property registered in a person's name is still common property and a unilateral sale is not necessarily valid. Second, in good faith to obtain the three elements of "reasonable consideration" is the easiest to break through, low-cost trading is the main direction. Third, pre-preservation is far better than post-litigation, and immediate action should be taken when the signs are detected. Fourth, the unauthorized party may have less points in the division, not "sell it and make a profit".

9. FAQ

can the other party secretly sell the house back?

See if it is obtained in good faith. If the buyer is not in good faith (knowing, low price and not registered), he may request for return. If the buyer has acquired and registered in good faith, it is difficult to recover the house, but he may claim compensation and less points.

What if you can't catch it back?

According to Article 1092, the two paths can be used in combination with a small or no division in the division and a claim for the loss of disposition. The whereabouts of the sale can still be treated as a common property clue.

How to prevent being sold?

Immediately apply for property preservation and seizure transfer, or use objection registration transition. Prevention is better than after-the-fact litigation.

You don't know until after the divorce?

If it is discovered after divorce that the marital disposition is made without authorization, it may separately claim division or request less division according to the rules of hidden transfer, and is not subject to the restriction of "settlement upon divorce.

What if it's too late to save?

If the house has been transferred, the defense and compensation shall be obtained in good faith, and the whereabouts of the price shall be traced as the basis for the division and return of the common property.

How to find out in advance to sell a house?

Regularly check the status of real estate registration, pay attention to signs of listing, taking and vacating, and track down any abnormal price flow.

10. operational steps

the first step is to immediately consult a lawyer and apply for property preservation and seizure. The second step is to check the real estate registration status simultaneously to confirm whether there is a mortgage and advance notice transfer. The third step, if the transaction has been completed, the transfer of the same district transaction price to prove that the consideration is low, advocating non-bona fide acquisition. The fourth step is to trace the whereabouts of the sale, including the division and return. In the fifth step, the divorce division claims that the other party disposes of less or no points without authorization, and claims for unreasonable losses.

Eleven, lawyers actual combat experience

most of the houses bought during marriage belong to the joint property of the husband and wife, but the registration often only writes the name of one party. Some people take advantage of the other party's unprepared to sell the house, and when they find out, the money may not be in the account long ago. First of all, it is necessary to correct an illusion: registration in a person's name does not mean that he can make his own decisions, and the attributes of the common property in marriage are not changed by the registered name. If the house has been transferred to the buyer, whether it can be recovered depends on whether it constitutes a bona fide acquisition-whether the buyer is in good faith, whether he has paid a reasonable consideration, and whether he has completed the registration. If one of the three conditions is missing, the other party will have the opportunity to claim the return. When all three conditions are met, it becomes difficult to chase the house, but it is not that there is no way to go: it can be claimed that the unauthorized disposition party should be divided less or not divided into common property, and compensation for the losses caused, and the two ways can be used together.

The really effective action is before the transfer. Once the other party is aware of the signs of selling a house-frequent house visits, contact intermediaries, vacate the house, inquire about property rights-the most cost-effective approach is to apply for property preservation in litigation or property disputes as soon as possible, freezing the transfer, which is much more effective than remedying after the transaction. If there is no time to sue, you can also apply to the real estate registration agency for objection registration, blocking the punishment based on the registration in a short period of time, but the objection registration has a time limit, must be linked to litigation or preservation, do not let it expire. In obtaining evidence, the focus is on three things: transfer and transaction records, the recent transaction price of the same community (used to prove that the selling price of the other party is obviously low), and whether there is a relative or related relationship between the buyer and the disposing party. The price is significantly lower than the market price, or the buyer is an insider, is often a breakthrough to overturn the well-intentioned acquisition and return to the house.

After the fact, there are two lessons to keep in mind. First, early detection will provide early protection. At ordinary times, pay attention to changes in property rights inquiry, accounts and housing status. Don't wait until the house book changes its name before regretting it. Second, don't just stare at the road of "getting back the house": when the house has fallen into the hands of a bona fide buyer and it is difficult to return it, it is more realistic to turn to claim less property and compensation price difference in time to recover the loss as much as possible. In addition, if the other party disposes of the house to relatives at an obviously unreasonable price, or transfers property for a third party outside marriage, it also involves the issue of whether the disposition is invalid and whether the money can be recovered, which can be claimed together in the same case. If you think through the three-tier strategy of "chasing if you can, compensating if you can't, and letting the disciplinary party suffer losses in the division", you won't only care about one road to the black when things happen.