Ningbo one party without authorization to sell or mortgage common property, the other party how to recover.
After marriage, Ningbo couples buy houses together, do foreign trade or open factories together, and the real estate, storefront and equity are usually only registered in the name of one party. After a relationship sours, the registered owner may sell the property without the spouse’s knowledge, mortgage it to obtain a loan, or even transfer ownership—under the guise of a “sale”—to relatives or a third party outside the marriage. By the time the spouse finds out, the house is often already registered under someone else’s name—can the money still be recovered, and can the property be reclaimed?
first give a conclusion: whether it can be recovered or not depends on two points-"whether the disposition is completed" and "whether the transferee is in good faith". If only the contract has been signed and the ownership has not yet been transferred, the return may be claimed, and the house shall be locked with objection registration and property preservation. If the house has been transferred to a bona fide third party, it will probably not be recovered, and it will only be possible to claim and divide the price, and the other party will be required to divide or not divide the price during the divorce division. Unauthorized mortgage, if the creditor fails to review obligations, not good faith, usually due to violation of public order and good customs invalid, can ask for full return. Below, in conjunction with actual court judgments, we will clarify the relevant rules, procedures, evidentiary requirements, and the practices adopted in Ningbo.
1. first clarify the rules: why the unilateral sale of housing, mortgage is "no right to dispose"
To judge whether one party's unauthorized sale of the house or mortgage is valid, the first step is to determine whether the house is a common property and who has the right to dispose of it.
1. Property acquired during marriage is in principle jointly owned
Article 1062 of the Civil Code stipulates that the wages and bonuses, production and operation investment income, intellectual property income, inherited or donated property (except those determined to belong to only one party in the will or gift contract) obtained by the husband and wife during the existence of the marriage relationship are the common property of the husband and wife; the second paragraph of the same article clearly states that the husband and wife have equal rights to deal with the common property. Many families in Ningbo register their real estate, storefronts and shares in one person's name, but as long as they are acquired within marriage and cannot be overturned by evidence of personal property before marriage, they are presumed to be jointly owned.
2. The disposition or mortgaging of jointly owned real estate requires the consent of all joint owners.
Article 303 of the Civil Code stipulates that the disposal of shared real or movable property, as well as the major repairs, changes in nature or use of it, shall be subject to the consent of the co-owners who account for more than 2/3 of the shares or all the co-owners, unless otherwise agreed between the co-owners. The common property of husband and wife is common, and the rules are stricter: the sale and mortgage must be agreed by both husband and wife, and one party signs without his or her spouse, which constitutes "no right to dispose".
3. Daily housekeeping agency, not in charge of house sale and mortgage
Article 1,060 of the Civil Code stipulates that the civil juristic act carried out by one spouse due to the daily needs of the family shall be effective for both spouses, unless otherwise agreed by one spouse and the counterpart; the restriction on the scope of the civil juristic act that can be carried out by one spouse shall not be against the bona fide counterpart. The key lies in the "daily needs of the family"-buying home appliances and paying property fees are family agents; Selling, mortgaging real estate or giving away large amounts of common property free of charge is obviously beyond the scope and must be agreed by both parties.
4. "No right to dispose" does not mean that the contract is invalid
Attention should be paid to the direction before suing "invalid contract": According to the first paragraph of Article 19 of the General Principles of Contracts in the Civil Code, the people's court will not support a contract concluded for the purpose of transferring or creating property rights, if the party or the real right holder claims that the contract is invalid only on the grounds that the transferor has no ownership or disposition right at the time of conclusion. In other words, the contract of unilateral sale and mortgage itself is usually valid, and what the spouse can really fight for is "whether the property right can be obtained in good faith" and "claim against the unauthorized disposition party".
5. Equity registered in the name of a party, normally transferred externally without the consent of the spouse
The same logic also applies to the equity: although the equity of the company registered in the name of one party belongs to the joint property of husband and wife, the external transfer of shareholders usually does not need the consent of the spouse, which is valid as long as the transferee is in good faith and the price is reasonable, and the spouse can only claim the division of the transfer price.
Unauthorized sale of (I) by 2.: the establishment of bona fide acquisition, the house can not be recovered
The house has been transferred to the buyer's name. If the spouse wants to recover it, the opponent will get it in good faith. Article 28 of the Interpretation (I) of the Civil Code on Marriage and Family stipulates that if one party sells a house jointly owned by the husband and wife without the consent of the other party, the third party purchases in good faith, pays a reasonable consideration and has registered the real estate, and the other party claims to recover the house, the people's court will not support it. The typical case is "Li mou v. Wang mou and Liu mou" property dispute after divorce [Jilin Changyi district court (2014) changmin yichu zi no 1354]].
Case: Wang and Li got married in 1980. They bought an Internet house in Changyi District of Jilin City in 2002 and registered it under Wang's name in 2009 (after divorce). In September 2014, Wang signed a contract with Liu to "sell" and transfer the ownership to Liu for 960000 yuan. Li sued to confirm that the contract was invalid and return the house. The court held that the house was purchased within marriage and belongs to the common property of husband and wife, and the divorce agreement was not involved. Wang mou's unilateral sale is not entitled to punishment, but the right to dispose does not lead to the invalidation of the contract. There is no common ownership, no objection and no mortgage in the register. Liu mou has reason to believe that Wang mou has the right to sell. 960000 yuan has a reasonable price, has paid taxes and has transferred ownership. Li mou has not proved Liu mou, therefore, it is presumed that Liu obtained it in good faith and rejected Li's request.
these are exactly the three requirements of bona fide acquisition (article 311 of the civil code): "bona fide" (no right to dispose and no gross fault), "reasonable price" and "registered". The presumption of good faith is on the buyer's side-Article 14 of the (I) of interpretation of property rights stipulates that if the real right holder claims that the transferee is not in good faith, it shall bear the burden of proof. To set aside the transaction, the spouse must prove that the buyer knew or should have known about the marital relationship, the joint ownership of the property, and the unusual nature of the transaction.
If you can't get back the house, you have to get the money back.
If the house is really acquired in good faith and cannot be returned, the spouse does not "lose both money and people": according to the second paragraph of Article 28 of the (I) of the Interpretation of Marriage and Family, the loss caused by unauthorized disposition can be claimed for compensation when divorcing; and the division of the house sales fund can also be claimed. The case of "Chen Mou v. Zhang Mou" property dispute after divorce [Jilin Changyi District Court (2014) Chang Min Yi Chu Zi No. 326] is typical: the house certificate was not issued and the house was not divided at the time of divorce, and Zhang Mou sold the house to a third party for 50000 yuan without consent. The court ordered Zhang Mou to pay Chen Mou half of the house price 25000 yuan and interest, half of the marital rent 1680 yuan 840 yuan and interest. When the house cannot be kept, the "share price + compensation" can be obtained in real terms.
Unauthorized sale of (II) by 3.: bona fide acquisition is broken and the house can be recovered
The opposite ending to the above happened in the retrial of the same case: after the first trial of the aforementioned case of "Li Mou v. Wang Mou and Liu Mou", Li Mou applied for retrial, and the Intermediate People's Court of Jilin City of Jilin Province revised the judgment with (2018) Ji 02 Min Zai No. 14.
The retrial revealed the key facts: the "purchase and sale price" of 960000 yuan agreed between Wang and Liu was not actually paid, and Liu admitted that both parties were actually gifts, and there had been an effective ruling before that that that they were in a gift relationship. According to this, the court held that the house was purchased by Li mou and Wang mou during their marriage and was the common property of husband and wife; Wang mou unilaterally donated a large amount of common property to Liu mou, which is not entitled to dispose of or damage Li mou's rights and interests; Liu mou obtained it free of charge, which does not conform to the "reasonable price" element obtained in good faith, and the gift is invalid. Final judgment: revoke the original 1. judgment of the second instance, confirm that Wang's donation of Liu's house is invalid, and Liu will return the house within
60days after the judgment takes effect.
Comparing the two judgments, the spouse's "win-lose switch" is clear: bona fide acquisition is based on the premise of "paid + reasonable price + bona fide + registered". Once the acquisition is free of charge such as gift or inheritance, or the transaction price is obviously lower than the market price, bona fide acquisition is directly untenable. Spouses can focus on the following breakthroughs:
- Abnormal price: free gifts, obviously unreasonable low prices, and low prices covered up by housing debt, do not conform to the "reasonable price", which can be identified according to the market price and trading habits by referring to Article 18 of the Interpretation (I) of Property Rights.
- The buyer is not in good faith: if the buyer and the seller are relatives, friends, colleagues, or have financial dealings and know the relationship between husband and wife, they can claim that they should know that they have no right to dispose of them.
- Objection Registration: Article 220 of the Civil Code stipulates that interested parties can apply for objection registration, and no prosecution shall be filed within 15 days from the date of registration. Article 15 of the (I) on the Interpretation of Real Rights clearly states that if there is a valid objection registration, the transferee shall be deemed to "know" and have no right of disposition, thus directly blocking bona fide acquisition.
- malicious collusion: according to article 154 of the civil code, the civil legal act of malicious collusion between the actor and the relative to damage the legitimate rights and interests of others is invalid, and if the collusion to transfer property can be proved, the contract can be claimed to be invalid.
Unauthorized Mortgage by 4.: Does the bank "obtain the mortgage in good faith" or has no right to dispose of it?
The mortgage does not transfer ownership, but the risk is greater-if the debtor does not pay the money, the mortgagee can apply for the auction of the house to be paid first. What the spouse wants to keep is "whether the mortgage can be established". The first paragraph of Article 37 of the interpretation of the guarantee system stipulates that if a party mortgages property with unclear or disputed ownership, which constitutes no right to dispose of upon examination, it shall be dealt with in accordance with the provisions of Article 319 of the Civil Code. That is, the mortgage in good faith to obtain reference to the rules of ownership, look at four points: the mortgagee has no right to dispose of, the mortgagee establishes the mortgage in good faith, the secured claim effectively exists, the mortgage has been registered. From the real judgment, the bank level of good faith to obtain a majority of the establishment.
1. The bank has verified the materials and done its duty to examine them, and obtained the establishment in good faith.
"Wang Mou 1 and Wang Mou 2, Guangfa Bank Dongguan Branch" case [Shenzhen Intermediate People's Court (2020) Yue 03 Min Zhong No. 19148]: The divorce agreement stipulates that the house belongs to the woman, but the house is still registered in the man's name. The man forged the divorce agreement, pretended to be the woman's signature, and mortgaged the house to the bank to defraud 2.7 million yuan of loans. The court held that the bank had examined the title certificate, the divorce certificate, the divorce agreement and conducted an on-site survey, and that the register showed that 100 per cent of the property owner was the man, who had reason to believe that he was the owner.
2. The divorce agreement stipulates that the house belonging to the spouse is mortgaged, and the bank may still obtain it in good faith.
Case of "Qi Mou, Jia Mou and Liangjiang Branch of a Bank" [Chongqing Jiulongpo District Court (2024) Yu 0107 Min Chu No. 3082]: The divorce agreement stipulates that the house belongs to Qi Mou, but it is registered under Jia Mou's name, and Jia Mou uses it to mortgage 1.55 million yuan from the bank and register it. The court found that Jia had no right to dispose of it, but the bank checked the property right certificate and marriage certificate. Jia's current spouse also signed and stamped the joint repayment commitment. The bank did not know and should not know that he had no right to dispose of it, had done his duty of careful examination, and obtained the mortgage in good faith. Because the bank did not agree to transfer the ownership, Qi's request to confirm the ownership and transfer the ownership was rejected.
3. The materials with "complete form and mutual corroboration" constitute the reasonable trust of the bank
"Rules for the Same Judgment of Class Cases" Public Number of Excellent Case 335 (Jinan Huaiyin District Court, Second Instance Maintenance): Meng mortgaged the house purchased during marriage and registered in his own name to Bank A for a loan of 960000 yuan. The bank noticed that Meng's credit report's marital status was "unmarried" and was inconsistent with his claim of "divorce". It further required him to provide divorce documents. Combined with the possible lag in the information of the account book, the bank had reasonable trust in the supporting materials with complete forms and mutual confirmation. The court found that the bank had fulfilled its obligation to examine, obtained the mortgage right in good faith, and rejected the spouse's request to cancel the mortgage registration.
the three cases point to the common point: registration has the effect of publicizing the real right; as long as the bank reviews the property right certificate, marital status and other materials and completes the mortgage registration, it is difficult for the spouse to deny the mortgage right only by "not obtaining consent. What the spouse can really win is to seize the evidence that the creditor "knows or should know"-for example, the bank knows that the husband and wife share, the falsification of materials is still not verified, and the conflict between credit investigation and marital status is not traced. If the bank is malicious or grossly negligent, the mortgage is not established.
5. unauthorized gift to the third party: violation of public order and good customs, invalid and full return
Different from "selling to a bona fide buyer without recovery", if the common property is given to a third party outside marriage or a specific related person without compensation, the spouse can usually get it back. First, the free acquisition does not meet the "reasonable price" element of good faith acquisition, the transferee's "good faith acquisition" defense is not established. The aforementioned (2018) Ji 02 Min Zai No. 14 case is an example-Wang gave the marital house "in the name of sale" to Liu Mou, an extramarital relationship person. The court found the gift invalid and ordered Liu to return the house within a time limit.
Operation details: if the other party uses the "sales contract" to package the gift, the spouse should first expose the "sale, which is actually a gift" through litigation, effective ruling or evidence (no actual payment, no capital flow, and the party's self-admission), and then claim the invalid return of the gift; if the house is not transferred or can be recovered, directly claim the return. If the house has been transferred but obtained free of charge, cancellation of registration and return of property may be requested.
Relief Path and Proof List of 6. Spouses
At different stages and against different opponents, choosing the wrong path leads to wasted effort and missed opportunities. The following table clarifies the four main threads.
| Path | Applicable Scenario | Legal Basis | What Can Be Obtained || --- | --- | --- | --- || Confirmation of the Invalidity of the Administrative Act/Request for Return | Transfer Not Yet Completed; Buyer Was Not a Good‑Faith Purchaser; Gratuitous Gift;Malicious collusion | articles 311, 154 and 153 of the civil code | recovery of the house, request for return and confirmation of invalidity of the disposition | | request for cancellation of mortgage registration | creditor not in good faith or with gross negligence | article 37 of the interpretation of the guarantee system, article 311 of the civil code | mortgage right is not established, mortgage registration is canceled | | damages | the house has been acquired in good faith and cannot be recovered | article 28, paragraph 2 of the interpretation (I) of the marriage and family code | divorce request for compensation for losses | | Divided price/Divorce less divided, divided again | One party sells, transfers, hides common property | Article 1092 of the Civil Code | Divided the sale of the house; the other party has less or no division; After divorce, it is divided again.
Civil Code stipulates that if one spouse conceals, transfers, sells, destroys or squanders the common property of the husband and wife, or forges the common debt of the husband and wife in an attempt to embezzle the property of the other spouse, the party may divide the common property less or no; if the other spouse discovers the above acts after the divorce, he may request to divide the common property of the husband and wife again. Unauthorized sale or mortgage of the property constitutes a typical form of “disposal,” and it serves as a key argument for seeking a smaller share for the other party.
In terms of evidence, spouses should prepare around the two lines of "common ownership" and "malice": first, the house is the evidence obtained during marriage-marriage certificate, purchase contract, payment certificate, loan repayment flow and real estate register; second, the non-bona fide evidence of the buyer or creditor-proof of kinship, transaction price certificate, financial transactions, chat records, credit information or marital status materials. Note the burden of proof: the presumption of good faith lies with the transferee, and the spouse bears the burden of proving that the transferee was not acting in good faith (Interpretation of the Property Law (I), Article 14).
class case reference: the court held that the donor can revoke the gift before the transfer of the rights of the donated property; if the donated property is still registered in the name of the donor and the rights have not been transferred, it is legal and effective for the donor to revoke the gift in court. Trial Court: People’s Court of Yuyao City, Zhejiang Province Case No.: (2018) Zhe 02
81Min Chu 11052
7. Frequently Asked Questions
My spouse unilaterally sold our jointly owned property to a relative at a significantly below-market price and has already completed the transfer of ownership. Can I still reclaim the property?
Determine whether it constitutes acquisition in good faith. If the transaction price is obviously lower than the market price, the buyer has a kinship with the seller or knows that the husband and wife share it, it usually does not constitute a bona fide acquisition, and the disposition may be invalid and the return may be requested. If the buyer purchases at the market price, is in good faith and has transferred the ownership, the house is difficult to recover, and he can only claim for less points when divorcing (Article 28 of the Interpretation (I) for Marriage and Family).
The house hasn’t been transferred into my name yet—what should I do first?
First check the records, then lock the room. Immediately go to the real estate registration agency to inquire about the registration status, apply for objection registration (Article 220 of the Civil Code, a lawsuit must be filed within 15 days from the date of registration, otherwise it will be invalid), and at the same time sue and apply for property preservation and seizure of the property. Objection registration can also enable subsequent buyers to be determined to "know that they have no right to dispose of" and block bona fide acquisition (Article 15 of the (I) for the Interpretation of Property Rights).
If a spouse mortgages the jointly owned property to a bank, is the mortgage valid?
Check whether the bank is acting in good faith. The bona fide acquisition of a mortgage right shall be governed by the rules applicable to ownership (Article 37, paragraph 1 of the Interpretations on the Security System; Article 311 of the Civil Code). In most judgments, the bank only needs to review the title certificate, marital status and complete the mortgage registration, that is, the good faith acquisition, the mortgage is valid, but the bank knows that the husband and wife share, the material fraud has not been verified, can claim that it is not good faith, the mortgage is not established.
After the divorce, you discover that your spouse sold the marital home—can you still make a claim?
Sure. Article 1092 of the Civil Code stipulates that if the other party discovers that there is an act of hiding, transferring, selling, damaging or squandering common property after divorce, it may sue for re-division; if the house cannot be recovered, it may also claim compensation in accordance with the second paragraph of Article 28 of the (I) Interpretation of the Marriage and Family Code.
8. Lawyer's Practical Insights
The first reaction of many parties is to question their spouses with evidence. As a result, the other party took advantage of this time to transfer the money and finish the transfer of ownership, leaving only a shell house to fight. In practice, the real decision is actually the time difference: as long as the transfer procedures have not been completed, immediately go to the real estate registration agency to register the objection, block the transaction on the window, and apply to the court for property preservation to freeze the suite or the other party's account; If the transaction has been completed, the materials, contract price and payment flow of the whole registration process must be retrieved immediately, see whether the transferee is in good faith, whether the transaction price is obviously low, whether the buyer and seller are related, and judge whether to chase the house or chase the money.
From the experience of handling cases, whether the house can be recovered or not is often stuck in the element of whether the transferee knows it or not. Therefore, the evidence collection should not only focus on the spouse, but also find out the identity of the transferee, the relationship with the spouse, whether the house is inspected on the spot and whether the payment is paid. If the third party outside the marriage obtains the property free of charge or is obviously transferred at a low price, it, it can directly claim to return. At the same time, don't forget another way: even if the house cannot be recovered, the corresponding price and the fault of the other party in concealing or disposing of the common property without authorization can be claimed to be divided less or even less in the divorce division. Pursuing both recourse and division in parallel is far more practical than focusing solely on a single property.
At the negotiation stage, the other party’s willingness to unilaterally dispose of the property likely stems from an intention to liquidate and siphon off assets before the division. Rather than regretting it later, it’s better to document and preserve evidence of real estate, equity holdings, and bank deposits as soon as cracks appear in the relationship or divorce is first considered, and to keep records of any inquiries made. During negotiations, avoid disclosing all the evidence you possess to the other party without reservation, and do not relax your efforts to preserve evidence simply because the other party has verbally promised to provide additional information. Prepare the fallback measures, such as filing a notice of objection and taking preservation actions; once the other party realizes the property has been frozen, they will be even more willing to return to the negotiating table.
Compress the rules into four sentences: common property is common, the sale of the house and mortgage must be agreed by both parties, unilateral disposition is "unauthorized disposition", but the contract itself is usually valid; If only the contract is signed but not transferred, the house can be locked and recovered with good use of objection registration and property preservation; If the house has been transferred to a bona fide third party, the house will not be returned, however, compensation, division of the price, divorce less points are not left behind.
Action Mnemonic: First, check the records; then, register (any objections); promptly preserve evidence; retain proof; and calculate the losses. The earlier it is discovered, the more options remain; by the time the transfer is completed, often the only card left to play is demanding money.