According to Article 17 of People's Republic of China (PRC) Property Law, the certificate of real estate ownership is the proof that the obligee enjoys real estate rights. The items recorded in the certificate of real estate ownership shall be consistent with the real estate register; If the records are inconsistent, unless there is evidence to prove that the real estate register is indeed wrong, the real estate register shall prevail.
Simply put, whoever is registered in the name of the real estate will enjoy the property right. According to Article 37 of the Property Law of People's Republic of China (PRC), the owner has the right to possess, use, profit from and dispose of his real estate or chattel according to law.
As can be seen from the legal provisions, one of the husband and wife, as the owner of the house, enjoys the right to dispose of it according to law.
According to the Supreme People's Court's application
If one party sells the house jointly owned by husband and wife without the consent of the other party, the third party buys it in good faith, pays a reasonable consideration and goes through the formalities of property right registration, and the other party claims to take back the house, the people's court will not support it.
If one spouse arbitrarily disposes of the house jointly owned by * * * and * *, causing losses to the other spouse, and the other spouse requests compensation for the losses during the divorce, the people's court shall support it.
Therefore, according to the provisions of the above judicial interpretation, it is effective for one spouse to "sell" the house jointly owned by husband and wife to a third person (the buyer) without the consent of the other spouse, but the third person (the buyer) needs to prove that it is "in good faith, paid a reasonable consideration and went through the property registration formalities", which requires a higher burden of proof for the third person (the buyer).
Therefore, in practice, whether it is a real estate trading center or a real estate agency that requires the other spouse to issue a certificate of consent to the sale, for the sake of transaction safety, it is suggested that the third party, that is, the buyer, require the other spouse of the seller to issue a certificate of consent to the sale.
Extended data:
Related case
Recently, my friend Zhou is going to sell the house. It is clear that she is the only one on the real estate license, but the intermediary must let her husband be present. So Zhou Youjun was so busy that he not only called the hotline 962269 of the city real estate trading center, but also consulted experts and lawyers from Zhongyuan Real Estate, the think tank center of Yiju Research Institute and Jiangsanjiao Law Firm. So, the reliable answer is coming.
City real estate trading center hotline: as long as the person on the real estate license is present.
Zhou Youjun's first thought is to call the hotline of the real estate trading center at 962269.
Before making a phone call, Zhou Youjun was wondering whether this house is shared by husband and wife, and the procedures and requirements for property disposal should be different.
But the reaction on the phone was completely unexpected.
A male staff member said categorically, in any case, as long as the person on the real estate license is on the line, there is no need for the spouse to be present, and there is no need for the spouse to issue any consent, notarization and other things.
Incredibly thoughtful, a few hours later, I called the 962269 hotline again. This time, the female staff answered the phone, and the answer was the same as above.
Real estate agent: the spouse needs to issue a statement to express his consent.
Unlike the hotline consultation of the city real estate trading center, Zhou Youjun consulted two or three real estate agents respectively, and they almost unanimously said:
If the house is bought before marriage, then you are the only one on the property certificate, and you don't need your spouse to do anything.
If the house is bought after marriage, even if you are the only one on the property ownership certificate, even if your spouse is not present at the transaction, you should issue a statement to show that you know about the transaction and have no objection.
Of course, they also admit that some of the things that require spouses to issue consent forms are the requirements of individual district real estate trading centers, and some are the practices of intermediary companies to avoid risks themselves.
In this regard, Yan Yuejin, research director of the think tank center of Yiju Research Institute, said that even if there is only one person on the real estate license, the consent of the spouse is still needed.
First, the signature of the real estate license is not necessarily related to the division of real estate, unless the house is pre-married. Second, in practice, this will happen. For example, a person sells a house, and then the house price rises when he sells it, and then that person goes back on his word, and then says that this suite is shared by husband and wife, and his wife disagrees. At this time, a dispute arises.
So the actual situation is that the general intermediary will require two people to be present. If you are not present, you usually need a power of attorney. In an emergency, telephone communication or video forensics is the first step.
People's Daily Online-Do couples need to be present for real estate license? The staff said that one person can do it.
People's Network-There is only one person's name on the real estate license. Do you need a spouse to be present to sell a house?