Recently, the Tongan District Court heard such a case related to "fake house purchase". Lin Minhui, director of Fujian Zihui Law Firm, interpreted and analyzed the legal risks of "buying a house under the name" and "fake mortgage" in combination with this case. Because in the event of an accident, "borrowing" buyers may bear huge debts, so lawyers remind everyone not to let fake mortgages become real houses and real mortgages.
In the end, Tongan court made a first-instance judgment on the above-mentioned case, holding that the down payment invoice issued by the developer for the buyers in this case was true and valid, and the contract signed by both parties was legal and valid, and the contract had been registered and put on record. Therefore, the judgment found that the purchase intention reached by both parties was true and the contract had actually been fulfilled. In other words, the property should be owned by the buyers.
Borrow 2 million, take the house to pay off debts.
This "excuse to buy a house" dispute was brought to court because of a debt dispute. It turned out that the buyer Mr. Lin and his father Lao Lin (pseudonym) borrowed 2 million yuan from the creditor Lao Wu (pseudonym) several years ago, and both parties agreed to pay off the loan before 201165438+1October 30, with interest of 2.5% per month.
On April 5, 20 12, Mr. Lin "purchased" two properties in the same community in Xiamen, and signed a purchase contract with the developer. The total transaction price of these two properties was 2.9 million yuan and 3.62 million yuan respectively. After the contract was signed, the developer issued a down payment invoice and went through the contract filing procedures. Moreover, this house has also applied for a bank mortgage loan.
In September of 20 13, Mr. Lin decided to "pay off debts with houses" and sell the above two properties to Lao Wu. According to the contract signed by both parties, the total transaction price of the property is 4.7 million yuan.
At that time, both parties confirmed that the Lins' father and son still owed Lao Wu loan interest totaling 6.5438+0.94 million yuan. The two sides agreed to use these arrears of Mr. Lin to offset the down payment of Lao Wu's house purchase, and the rest of the house purchase money will be paid within 7 days from the date of transfer. Mr. Lin should deliver the above-mentioned house to Lao Wu within 5 days after the developer delivers the house.
However, several years later, the developer issued a notice of delivery, but Mr. Lin did not deliver the property to Lao Wu as agreed.
To this end, Lao Wu took Mr. Lin and his wife to court and listed the developer as the third person in this case.
Sign the house and say it's not your own?
In the face of prosecution, Mr. and Mrs. Lin replied that although the two properties are in their names, they are not the actual owners of the houses, and the actual owners should be developers. Therefore, they have no right to dispose of these two properties.
The developer of the third party in this case also said that the two properties did not belong to Mr. Lin, but the developer signed two commercial housing sales contracts in the name of Mr. Lin for the need of operating funds. Mr. Lin applied for a mortgage from the bank, and the loan obtained was actually the operating funds of the developer. In fact, the monthly mortgage and interest are also paid by developers. Therefore, the developer does not need to deliver the house purchased under the loan name to Mr. Lin, and Mr. Lin did not ask the developer to hand over the house.
Therefore, the developer thinks that the House Sales Contract signed by Mr. Lin and Lao Wu is invalid, and Mr. Lin and his wife have no right to dispose of these two properties, which should still be owned by the developer.
Mr. and Mrs. Lin basically agreed with the developer, saying that Mr. Lin did not really pay the "house down payment" and the sales contract signed by both parties was not a real sale.
The first instance ruled that the sales contract was legal and valid.
How did the developer find Mr. Lin to handle the "fake mortgage"? After investigation, Mr. Lin's father is in charge of the developer company.
However, the developer did not prove his statement. Therefore, the first-instance judgment of Tongan District Court held that the two commercial housing sales contracts were true and legal, and had been actually performed. Therefore, it was decided that the two properties belonged to the Lin couple.
Therefore, the first-instance judgment finally supported the plaintiff's creditor Lao Wu's appeal, demanding that Mr. Lin and his wife fulfill the contractual obligations signed with Lao Wu, handle the house delivery procedures with the developer, and deliver the house to the plaintiff Lao Wu. At the same time, Mr. and Mrs. Lin should also compensate Lao Wu for the losses caused by overdue delivery.
The judge said: after the down payment is filed, the house should be handed over.
The court held that a series of procedures between Mr. Lin and the developer were true and legal, and two commercial housing sales contracts had been registered with Xiamen Real Estate Transaction Rights Registration Center. Because the two down payment invoices are enough to prove that Mr. Lin has paid the down payment to the developer, the intention of both parties to buy a house is true and the contract has been actually fulfilled.
In addition, the loan that Mr. Lin applied for from the bank has also been transferred to the account of the development company, and the developer has not proved that the contract signed with Mr. Lin is to obtain the loan for the company's operation. Moreover, it is a serious violation of national financial laws to defraud loans from financial institutions by concealing the real situation.
Therefore, the court ruled that the house involved in this case had been purchased from the developer by Mr. Lin. Although the handover procedures and real estate rights registration procedures have not been handled so far, Mr. and Mrs. Lin are the actual owners and enjoy the right to dispose of the above-mentioned houses according to law.
Lawyer's statement: "Fake mortgage" is risky.
"Buying a house under one's name" and "fake mortgage" seem convenient, but in fact they are full of risks.
Usually, after developers get loans through fake mortgages, they will take two ways: one way is to sell second-hand houses. Developers attract real buyers to buy second-hand houses through the illusion of hot sales, and will raise the house price appropriately according to the illusion of hot sales. There is another situation, wait until the property market picks up or the funds are not tight before trying to check out and resell.
Lawyer Lin Minhui, director of Fujian Zihui Law Firm, reminded that real estate enterprises use "fake mortgages" to obtain bank funds, which on the one hand disrupts the real estate sales market; On the other hand, it destroys the financial order. If the real estate company's funds are broken and unable to pay the mortgage, it will have a series of serious legal consequences.
The developer's "fake mortgage" not only brings great risks to banks, but also brings hidden dangers to many "fake" buyers, many of whom are employees of developers and ordinary people. Because I don't know the legal risks and personal consequences of "fake mortgage", I unconsciously put myself in deep danger. Once the developer is short of funds and can't repay the loan in time, the "fake mortgage" is likely to become a "real loan" and the borrower may be forced to bear the responsibility of repaying the loan. If the loan finally defaults, it will also lead to a bad personal credit record.
In addition to civil liability, "fake mortgage" may also bring criminal liability. As a developer, if it is very clear that a series of materials are forged for the purpose of illegal possession to defraud bank loans, it can be convicted and punished for contract fraud in accordance with the Criminal Law of People's Republic of China (PRC). If an individual uses the name of a developer to make a "fake mortgage" for the purpose of illegal possession, it is suspected of constituting the crime of loan fraud.