Insights

Ningbo Divorce Judgment House Not Transfer? 6 Steps to Enforcement

Ningbo Author：LuXu WANG

When the verdict was obtained, it was written in black and white that the house belonged to him, but the other party refused to go to the real estate registration center to sign. The phone was not answered, and the appointment was made and the appointment was broken. This is one of the most common deadlocks in the execution stage after the divorce in Ningbo. Many people mistakenly think that they must cooperate with each other to handle it, so they drag on and on, and there may be mortgages or seizures in the middle. In fact, the law has prepared channels for such situations that do not rely on the presence of the other party.

The nature of the transfer obligation after the entry into force of the 1. judgment.

If the effective referee confirms that the house is owned by one party, the other party has the obligation to cooperate with the registration of the transfer of ownership. This obligation is an obligation to pay for an act, is enforceable and is not extinguished by the refusal of the obligor, nor is it waived by the loss, exit or remarriage of the obligor.

1. The difference between the right and the payment.

If the main text of the judgment states that the house is owned by a party and the transfer is handled by a party, it is a clear basis for execution of the payment content, and can be directly applied for execution. If the main text only expresses the right and does not specify the obligation of cooperation, the execution stage may be required to be clear first, so the request should be specified at the litigation stage.

2. The conciliation letter has the same effect

the conciliation agreement confirmed by the court has the same enforcement effect as the judgment. However, the divorce agreement signed when going through the formalities through the marriage registration authority is not the basis for enforcement. If the other party does not cooperate, it is necessary to file a separate lawsuit to obtain an effective judgment before applying for enforcement.

Time limit and materials for 2. application for enforcement

time limit and materials are the first pass for filing a case, and uneven materials will directly affect the speed of acceptance.

1. The two-year application period cannot be missed

the period of application for execution is two years, which shall be calculated from the last day of the performance period stipulated in the legal document; if no performance period is specified, it shall be calculated from the date of entry into force of the legal document. The suspension and interruption provisions apply during this period, but long-term non-claims may still face obstacles, and if the other party does not cooperate, it should be applied as soon as possible.

2. Five types of materials to be prepared

the first is the application for enforcement, which states that the property right of a specific house is requested to be transferred to the name of the applicant; the second is the original effective legal document and the effective certificate; the third is the applicant's identity certificate; the fourth is the copy of the house ownership certificate or the real estate registration inquiry result; the fifth is the identity information and property clues of the person subject to execution. The application should clearly state the location of the house and the number of the ownership certificate to avoid unclear subject matter.

Complete disassembly of 3. six-step execution process

from the submission of materials to the completion of registration, it usually goes through the following six links. Understanding the rhythm helps to grasp the coordination of each step.

1. The first three steps: filing, notification and investigation and control.

The first step is to submit an application for enforcement to the court that made the effective judgment or the court where the real estate is located and file the case; the second step is to issue an enforcement notice and a property report order to the person subject to enforcement, ordering him to perform within the specified time limit; the third step is not performed within the time limit, The court shall investigate and prosecute the house and other property under the name of the person subject to execution to prevent it from being punished during execution.

2. The last three steps: assistance with implementation, registration and delivery

in the fourth step, the court serves a notice of assistance in execution to the real estate registration agency, requesting the registration of ownership transfer; in the fifth step, the registration agency directly handles the matter according to the notice of assistance in execution, without the need for the person to be executed to sign; in the sixth step, if the house is still occupied by the person to be executed or another person, it may apply for compulsory withdrawal and delivery, which shall be organized and implemented by the court.

Assistance from 4. real estate registration agencies

this link is the hub of the whole process, and it is also a part that many parties did not understand before.

1. Role of letters of assistance in implementation

after receiving the notice of assistance in execution served by the people's court, the registration institution shall register in accordance with the contents specified in the notice, and whether the person subject to execution is present, signed or handed over the certificate of ownership shall not affect the handling. If the original ownership certificate cannot be withdrawn, it may be re-issued after the registration agency announces the invalidation.

2. Treatment of tax liability

taxes and fees arising from the transfer process shall be borne by the corresponding obligor in accordance with the provisions. If the effective referee has clearly assumed the subject, it shall be executed according to the referee; If it is not clear, the applicant may advance to complete the registration, and then claim separately on the advance. To avoid delay, it is recommended that tax liability be included in the claim at the litigation stage.

5. alternatives when a mortgaged house cannot be transferred.

If the house still has a bank loan outstanding, or has been seized by other creditors, the registration agency cannot directly handle the transfer registration and needs to change the road.

1. Release the mortgage first and then transfer the ownership.

The feasible approach is to obtain the house party to pay off the remaining loan in advance and handle the mortgage cancellation, and then handle the transfer according to the referee. Some banks support the change of the loan subject to the acquisition of the house party, can first communicate with the loan bank to transfer the loan program.

2. Discount compensation and auction price change.

If it is really impossible to release the mortgage and both parties are unable to undertake it, they may apply for an appraisal auction of the house to pay off the mortgage claim in priority with the variable price, and the remaining part shall be distributed according to the share determined by the referee. If the referee itself is determined to be a discount compensation, it shall be executed according to the monetary payment, and the property such as deposits, wages and equity of the executed person may be seized and frozen.

The application of 6. delay payment and breach of trust punishment.

There is a cost to delay non-performance, and using these means well can significantly increase the willingness of the other party to cooperate.

1. Double the payment of interest on the debt during the period of delay in performance.

If the person subject to execution fails to perform the obligation to pay money within the period specified in the judgment or ruling, the interest on the debt for the period of delay shall be doubled. For enforcement cases involving housing discounts, the applicant may submit them together in the enforcement application and list the starting and ending time for calculation. If the performance of non-monetary obligations is delayed, a delay payment shall be paid.

2. Restrictions on consumption and inclusion in the list of dishonest

if they have the ability to perform but refuse to perform, the court may take measures to restrict high consumption against the person subject to execution, and include them in the list of untrustworthy persons subject to execution in accordance with the law, and restrict them from taking high-speed rail by plane, loans, and serving as corporate executives. If the circumstances are serious, it may constitute criminal responsibility for refusing to execute the judgment or order. If the applicant discovers that the person subject to execution has concealed property or made false declarations, he shall submit clues to the enforcement judge in a timely manner.

7. case proof

according to the public judgment of Ningbo court, in the property dispute after Li mou and Zhang mou's divorce, the court found that the agreement on property division in the divorce agreement was legal and effective, supported the plaintiff to confirm that Ningbo real estate belongs to him and required the other party to cooperate with the transfer of ownership-once the ownership of the house is confirmed by the effective document, the obligation to cooperate with the transfer of ownership will be enforced; If the obligor refuses to cooperate, the obligee applies for enforcement, the court will serve the notice, on this basis, the registration institution directly handles the transfer registration, without the presence of the obligor to sign, the original ownership certificate can not be recovered by the registration institution after the announcement of invalidation re-issued, the whole process is not blocked by the obligor's refusal to cooperate.

According to the public judgment of Ningbo court, in the property dispute between Wang moumou and Zheng mou after their divorce, some houses were found to belong to the common property of husband and wife. the court ruled that the houses under the defendant's name belonged to the plaintiff and the plaintiff paid the compensation of 328500 yuan-if the division of the property was settled by discount, the discount part was paid by money, and the property such as deposits and wages of the person subject to execution could be checked. According to the public judgment of Ningbo Zhenhai Court, in the property dispute after the divorce between Xu and Chen Mou, the property registered in the name of both parties belongs to the plaintiff and the plaintiff pays the defendant a discount of 744362.67 yuan. According to the public judgment of Ningbo Ninghai Court (2011) Yong Ning Min Chu Zi No. 1335, in the property dispute after the divorce between Chen and Xiang, the undivided house was auctioned by the court according to its share, the plaintiff gets 235000 yuan and the defendant gets 285000 yuan-if the house cannot be released or divided, it is a common realization path in Ningbo to evaluate the auction and distribute the price according to the referee's share.

8. Risk Alert

  • if an application is filed after more than two years of application for execution, the progress of the execution procedure may be affected by the objection of the other party.
  • The main text of the judgment only confirms the right and does not specify the obligation to cooperate with the transfer, and the execution stage is required to be clear first, resulting in an increase in time costs.
  • After receiving the judgment, if you do not apply for enforcement for a long time, the house will be mortgaged, sealed up or transferred to a third party during the period, making it more difficult to realize the rights.
  • Those who mistakenly use the divorce agreement signed by the marriage registration authority as the basis for execution and directly apply for execution will not be accepted.
  • The subject of tax liability was not clarified at the litigation stage, and the transfer was again deadlocked due to the cost dispute.

9. FAQ

if the other party does not sign, can the house be transferred?

You can. If the effective judgment determines the ownership of the house and clearly defines the obligation to cooperate, after applying for enforcement, the court will serve a notice of assistance in enforcement to the real estate registration agency, and the registration agency will directly handle the transfer registration accordingly. Whether the person to be executed is present or signed does not affect the handling.

Is there a time limit for applying for enforcement?

There is. The period of application for execution is two years, which shall be calculated from the last day of the performance period specified in the legal document; if no performance period is specified, it shall be calculated from the date of entry into force of the legal document. The suspension and interruption provisions apply during this period, but if the other party is found to be uncooperative, it should be applied for as soon as possible to avoid additional obstacles due to delay.

If the other party fails to perform the divorce agreement, can it directly apply for execution?

You can't. The divorce agreement signed at the time of going through the formalities at the marriage registration office is not a basis for enforcement. If the other party fails to perform, it is necessary to sue separately on the basis of the agreement, obtain an effective judgment or mediation agreement, and then apply for enforcement.

The house still has the loan outstanding, how to transfer the ownership?

Where there is a mortgage registration, the registration agency cannot directly handle the transfer registration. It is common practice for the party acquiring the house to pay off the remaining loan in advance and cancel the mortgage before transferring it, or to negotiate with the loan bank to change the loan subject to the party acquiring the house. If it is really impossible to release the mortgage, you can apply for an appraisal auction to pay off the mortgage claim at a variable price and distribute it according to the referee's share.

Practical Experience of 10. Lawyers

the verdict confirms that the house belongs to itself, but the other party drags on not signing it, which is the most common deadlock in the implementation phase. First of all, we must get rid of a misunderstanding: transfer of ownership does not require the cooperation of the other party, and the court's enforcement channel can bypass the other party's presence. The key is that the main text of the judgment is not clearly written-if it is clearly stated that the house is owned by a certain party and the transfer is handled by a certain party, this is the payment content that can be directly applied for execution; If only the right is expressed and the obligation of cooperation is not written, the execution may be required to be clear in advance. Therefore, those who are still in the litigation stage must write down the transfer obligation into the application and do not leave any future troubles for themselves.

To apply for execution, time should be stuck and materials should be prepared. There is a time limit for the implementation of the application. Generally, it is two years from the expiration of the performance period determined by the legal document. If the other party does not cooperate, it should apply as soon as possible, and do not delay the mortgage or seizure to find the door. The materials usually include the application for enforcement, effective legal documents and effective certificates, identity certificates, housing ownership materials and the identity information of the person to be executed. It is also necessary to distinguish the validity of the basis: the judgment and mediation agreement issued by the court can be directly applied for enforcement, while the divorce agreement signed in the registration authority is not the basis for enforcement. If the other party does not cooperate, it must first file a separate case and get the effective judgment before entering the enforcement.

If you encounter a house with a mortgage on your back and can't get through the house for a while, you should think of an alternative plan instead of waiting. It is common to reach an enforceable agreement with the other party on the order of debt settlement and release, or for the court to serve the materials to the registration institution by assisting in the execution, so as to put the transfer obligation on the specific operation steps. If the other party continues to refuse to perform, it may also advocate measures such as delaying the performance of the payment and applying for the inclusion of punishment for breach of trust. In the whole process, the property ownership materials, the main text of the judgment and the traces of the performance of the reminder should be kept well and the time point should be clearly recorded so that the house on paper can be truly registered under its own name.