Insights

Who is the divorce of the house bought by someone else's name in Ningbo?

Ningbo Author：LuXu WANG

Because of the purchase restriction or loan qualification, the house has written the names of relatives and friends, which is actually its own money. This arrangement is peaceful at ordinary times, and upon divorce, two sets of disputes will be triggered at the same time: who owns the house and how to divide it between husband and wife.

The legal structure of 1. buying a house by name.

Buying a house by name is an agreement between the actual funder and the registered nominee and is a contractual relationship. It may be effective between the two parties, but it cannot be used against bona fide third parties, nor can it directly produce the effect of changes in property rights. This is the starting point for understanding all risks.

Creditor's rights relationship is not equal to real right

the name agreement gives the claim to request the transfer, not the right of ownership. This distinction is particularly fatal when the nominee repents or is enforced.

2. how the actual funder proves

A complete chain needs to be formed: written agreement or clear communication record of borrowing name, payment voucher of all purchase price, repayment source of subsequent monthly payment, actual possession and use of the house, deed tax and property fee payment record. Missing any one link, the claim is markedly weakened. Borrowing agreements and capital contributions are mostly marked by electronic means such as WeChat chat and bank transfer. According to Yinzhou Court's White Paper on Trial of Marriage and Family Cases (2019-2021), WeChat and other electronic evidence has many defects in proof and is difficult to accept. The original carrier of chat records and the original transfer voucher should be kept when saving.

Actual use of possession is important

long-term self-occupation, rent collection, holding the original house, these facts have a strong auxiliary role in determining the actual ownership of rights.

3. the risk of registering a nominee

if the house is registered in the name of another person, it will be included in the scope of its liability property. The debt of the nominal person is seized, the divorce is divided as the joint property of the husband and wife, and the accidental death is inherited as an inheritance, all of which are real and difficult to avoid in advance.

Nominal changes are the most difficult to deal.

In the event of a nominal person's own debt or family misfortune, the actual contributor is often passive and can only defend his rights through procedures such as the implementation of objections.

Whether the 4. is common property

if the purchase of the house comes from the joint property of the husband and wife, then the interest formed by the purchase of the house under the name belongs to the common property and should be divided in the event of divorce. The object of division is not the ownership of the house itself, but the right of the nominal person to request the transfer of ownership and the corresponding property interests.

First sort out the funds and then talk about division.

Corresponding the down payment to the source of the monthly payment to the specific account one by one is the premise of judging the nature of the equity and the basis of the division scheme. In practice, the interest is usually embodied in the form of a claim on the nominal person, and the division is mostly realized by way of discount compensation.

Obstacles Brought by 5. Purchase Restriction Policy

if the actual investor does not have the qualification to purchase a house, even if the fact of borrowing the name is clear, the request for direct transfer may not be realized because it does not conform to the policy. Such situations usually turn to discount compensation or wait until they are qualified, and the scheme design should be flexible in advance.

Time Limit for Implementation of Objection

if the house is sealed up due to the debt of the nominee, the actual contributor shall file an objection to the execution within the statutory time limit, and the opportunity for relief in the procedure will be lost within the time limit, and only another way can be found.

6. how to minimize the risk

if it is really impossible to avoid borrowing a name, at least four things must be done: sign a written borrowing agreement and specify the transfer conditions and time limit. If these four items are done together, even if there is a dispute, the success rate of the claim will be significantly improved.

1. Vouchers must be kept by themselves

the most dangerous arrangement is that the warrant and the purchase information are kept by the nominal person. Once the relationship breaks down, the actual funder does not even have the basic evidentiary conditions.

2. The transfer conditions should be written to be enforceable

the name agreement shall specify the specific conditions and time limit for triggering the transfer, such as the release of the purchase restriction policy or the number of days after obtaining the qualification to purchase a house. If it is only written that the transfer will be carried out in the future without any conditions or deadlines, it is actually difficult to claim performance.

7. case proof

in practice, the actual contributor submitted a written agreement on borrowing the name, a full payment voucher of about $2.3 million and evidence of long-term possession for about 7 years, and the court found that the borrowing relationship was established and supported its claim.

In practice, in another case, the house was sealed up because the registered nominee had an external debt of about 900000 yuan. Although the actual investor had the capital contribution certificate, he still needed to claim his rights through the implementation of the objection procedure, which took about 8 months.

In practice, the loan agreement clearly stipulates that the transfer of ownership shall be handled within 30 days after obtaining the qualification to purchase a house, and the actual funder claims to continue to perform accordingly to obtain support, and the registration shall be completed about 2 months after the judgment takes effect.

8. Risk Alert

  • there is no written agreement on the loan name only.
  • Monthly payments from nominator accounts result in mixed sources.
  • Ignore the nominal person's own debt risk.
  • Do not have the qualifications to buy a house but insist on the transfer.
  • The house book and purchase information shall be kept by the nominee.

9. FAQ

who owns a house under his name?

Registered in the name of the nominal person, the actual contributor enjoys the claim of the request for transfer, not the right of ownership.

How to Divorce?

If the purchase price comes from common property, the interest is common property, and the right and property interests are divided.

Does the nominal debt affect the house?

Will. The house is the property of his liability in his name and may be seized for execution.

Can I transfer the ownership without the qualification to buy a house?

May be limited, usually converted to discount compensation or pending qualification.

How can the house be sealed up for relief?

Objection to enforcement should be filed within the statutory time limit, and the opportunity for relief in the procedure will be lost if it is overdue.

How to reduce the risk of buying a house by name?

Written agreement, direct payment, self-holding warrant, actual possession and use, four are indispensable.

Practical Experience of 10. Lawyers

because of the purchase restriction or loan qualification, the house is written in the name of relatives and friends and the actual payment is made by oneself. This arrangement is usually peaceful. Upon divorce, two groups of contradictions will be triggered at the same time: who owns the house and how to divide it between husband and wife. The legal structure should first be recognized-buying a house by name is an agreement between the actual investor and the registered nominee, which is a contractual relationship, which may be effective between you, but it can neither be against a bona fide third party nor produce the effect of a change in property rights out of thin air, which is the root of all the risks.

The actual funder to claim the right, have to come up with a complete chain: a written agreement or clear communication record of the name of the loan, the transfer voucher of the capital contribution, the loan repayment record, and the possession and use of the house. Whether it belongs to the joint property of husband and wife depends on the source and agreement of the purchase funds. If it is bought with the joint property of husband and wife, the other party has room to claim. The nominal party is also at risk, and once it is repented, indebted or executed, the house is likely to be pursued, and the funder often has only a claim in his hand, not an ex officio ownership.

To minimize the risk, what can be done is actually limited but critical: make up a written loan agreement as soon as possible, clarify the conditions for capital contribution, ownership and transfer, keep all payment traces, and transfer the property rights back as soon as possible when the conditions are met. If the nominal person goes back on his word or is executed, he or she shall claim his or her rights in time and apply for preservation if necessary. Don't wait until the house is disposed of before trying to find a way. The purchase restriction policy will directly affect whether the transfer of ownership can be realized. Evaluate this layer before starting work, so as not to pass the account when the agreement is in hand. Borrowing the name itself is a high-risk arrangement that splits ownership and capital contribution, and tries not to use it if you can.