1. If my house has not been transferred, can I get it back?
In Beijing, it is necessary to sign a gift contract for housing gift. However, the gift contract is different from other paid contracts. The first paragraph of Article 186 of the Contract Law stipulates: "The donor may revoke the gift before the right to donate the property is transferred". Therefore, the law gives the donor the right to unilaterally revoke it. Therefore, as long as there is no property right change and no real estate change registration, the donor can cancel the gift at any time and get back the house.
However, in any of the following circumstances, the donor may not revoke it at will:
1. The gift contract has been notarized.
Notarization is essentially a proof of the authenticity and legality of legal acts, agreements and contracts, and once notarized, it has legal effect. Once the gift contract is notarized, it can show that the donor's gift intention is clear, and the donor may not revoke the gift at will.
2. Gift contracts with the nature of social welfare and moral obligation.
No matter whether it is notarized or not, no matter whether the property right changes, the donor may not revoke it at will. Article 186 of China's Contract Law stipulates that the donor may revoke the gift before the right to donate the property is transferred. ? The provisions of the preceding paragraph shall not apply to gift contracts with the nature of social welfare and moral obligation such as disaster relief and poverty alleviation or notarized gift contracts.
Second, can the house sent out before marriage be returned?
This paper mainly discusses two cases of giving as a "bride price" and giving as a "gift" before marriage.
1. Give it to the woman as a "bride price" before marriage.
For the purpose of marriage, if the property is a "bride price", if the marriage contract is invalid, you have the right to return the property.
Case playback:
Xiao Zhang, a man, and Xiao Wang, a woman, fell in love at first sight. After a period of communication, Xiao Zhang gave the house under his name to Xiao Wang as a "bride price" and registered the transfer. But it often backfired, and soon Xiao Zhang and Xiao Wang broke up and broke up. At this point, Xiao Zhang proposed that Xiao Wang should return the property. Xiao Wang refused to return it on the grounds of Xiao Zhang's voluntary gift, and then the two went to court. In the end, the court ruled that Xiao Wang returned the property donated by Xiao Zhang.
Case study:
First of all, a gift solely for the purpose of freely transferring property rights cannot be revoked. However, Xiao Zhang clearly associates with the woman Xiao Wang for the purpose of marriage. In order to consolidate the love relationship between the two sides, during the love period, the man gave the woman a set of real estate, which belongs to the "gift with conditions of dissolution". That is, the performance of marriage is agreed, and the dissolution of marriage is agreed. When the donee refuses to return the donated property, it constitutes unjust enrichment in civil law. According to Article 92 of the General Principles of Civil Law, the donor has the right to ask the donee to return the donated property, and the donee has the obligation to return all the improper benefits arising from his engagement.
Legal extension:
The Supreme People's Court's Interpretation on Several Issues Concerning the Application of the Marriage Law of the People's Republic of China (II) Article 10: If a party requests to return the bride price paid according to custom, the people's court shall support it if it is found that it belongs to the following circumstances:
(1) Both parties have not gone through the marriage registration formalities;
(2) Both parties have gone through the marriage registration formalities, but they have not lived together;
(3) premarital payment, causing difficulties to the payer.
The application of items (2) and (3) of the preceding paragraph is conditional on the divorce of both parties.
2. Give it to the woman as a "gift" before marriage.
If the property is simply regarded as a "gift", the gift cannot be revoked without authorization.
Case playback:
Xiao Li, a rich second generation, is madly in love with his wife Jamlom. On his birthday in Jamlom, Xiao Li spared no expense to buy a house for Jamlom as a birthday present. But then I broke up because of emotional discord. When breaking up, Xiao Li asked Jamlom to return the property, but Jamlom refused to return it. After the negotiation failed, Xiao Li appealed to the court, but the court finally rejected Xiao Li's request.
Case study:
Combined with the first example, the difference can be clearly seen. As a "birthday gift", Xiao Li, a "rich second generation", belongs to the gift for the purpose of "free transfer of property rights", which does not meet the three revocable circumstances stipulated in Article 192 of the Contract Law and cannot return the property at will.
Chain home reminder:
For the large amount of property donated during the period of love, the purpose of the gift must be made clear, and whether it belongs to the "bride price" or the evidence with the same meaning should be kept. Such as proof of fund transfer, invoices, SMS and QQ chat records, which can prove the connection between gift-giving and engagement.
Third, can the house sent out after marriage be returned?
1. Married to a third party but the spouse doesn't know.
Involving the use of property jointly owned by husband and wife, but the spouse does not know, the spouse has the right to return the property.
Case playback:
Xiao Zhang and Xiao Wang's wife have a successful career after marriage. But then one day, his wife Xiao Zhang found out that her husband Xiao Wang secretly bought a room for the company's female secretary. Angry Xiao Zhang asked for the return of the property, but the negotiation failed to reach the court of appeal.
Case study:
According to the contract law, the husband's own gift behavior is established, but we cannot ignore the following points:
1) The property used by the husband is the joint property of the husband and wife, and both parties have the right to dispose of the property, but the spouse does not know when the husband will dispose of the property.
2) Husband Xiao Wang's behavior violates social morality.
In this case, according to the provisions of the Marriage Law, it is invalid for a spouse to give * * * and property to others without authorization.
In addition, the General Principles of the Civil Law stipulates that civil actions should respect social morality and may not harm public interests. Husband Wang Mingxian violated this point, so the wife can get her property back!
2. After the divorce by agreement, the property changed hands but the donor repented.
Divorce by agreement and the change of property rights has been completed, and the gift shall not be revoked without authorization.
Case playback:
Qian is an executive of a company with a high income, and his wife Wang takes care of the children at home. However, Qian was prone to domestic violence, and it was not long before the two agreed to divorce. According to the agreement, the children live with the king, and the money pays 900 yuan's alimony every month; Qianmou gave a house to Wang before marriage as compensation for Wang. But soon, Qian argued that it was not his true intention to give the house to Wang for divorce, so he proposed to cancel the gift.
Case study:
The divorce agreement between Qian and Wang was reached through equal consultation, which was the result of consensus between the two sides. According to the relevant provisions of China's Marriage Law and Contract Law, the gift of money has legal effect and cannot be revoked without authorization.
4. Can the house for children be returned?
1. Children who fail to perform their maintenance obligations have the right to return their property.
Case playback:
When the child was 20 years old, Mr. Liu took out his life savings to buy a house for his son, and the property rights were registered in his name. Unexpectedly, a few years later, the relationship between father and son deteriorated and he did not fulfill his duty of support. Mr. Liu is heartbroken for this. So Mr. Liu advocated going back to the real estate, but his son insisted that the house should be registered in his own name and should belong to himself. The court ruled that the son should return the property purchased by his father.
Case study:
Article 192 of the Contract Law stipulates that the gift can be revoked under certain conditions: (1) the interests of the donor or his close relatives are seriously infringed; (two) the donor has the obligation to support and fails to perform; (3) If the donor fails to perform the obligations stipulated in the gift contract, the donor may revoke the gift. In this case, the son's behavior is in line with Article 2, "He has the obligation to support the donor but has not fulfilled it", so the father has the right to take back his house.
2. If there is a major misunderstanding about the content of the gift, it may be revoked.
Case playback:
Lao Wang had a son under his knee and gave him the house in his later years. But soon he was surprised to learn that his son was not his own, but the hospital held him wrong, so Lao Wang wanted to go back to the house. But at this time, the son refused to return it on the grounds of Lao Wang's voluntary gift.
Case study:
Article 59 of the General Principles of the Civil Law of People's Republic of China (PRC) and the General Principles of the Civil Law of People's Republic of China (PRC) stipulates that one party has the right to request the people's court or the arbitration organ to change or cancel the following civil acts: (1) the actor has a major misunderstanding of the content of the act; (2) Obviously unfair. According to the case, Lao Wang thought it was his own son when he gave it, but later found it was not his own son. At this time, it constitutes "the actor has a great misunderstanding of the content of the act", so this kind of gift behavior belongs to "a civil act that can be changed or revoked", and you can request the people's court or the arbitration organ to change or revoke it and return the property.
Gift summary:
Generally speaking, a gift contract should be signed for the gift of real estate, and the registration of property rights change should be handled, which is protected by law. Unless it meets the three provisions of Article 192 of the Contract Law and some special circumstances:
(a) serious infringement of the donor or the donor's close relatives;
(two) the donor has the obligation to support and fails to perform;
(3) If the donor fails to perform the obligations stipulated in the gift contract, the donor may revoke the gift.
The donor shall not revoke it without authorization.
Therefore, the chain reminds you that you must be cautious when giving away real estate, and it is easier to send it out than to return it.
Source:
law of contract
Marriage Law
General Principles of Civil Law of People's Republic of China (PRC)
This content only applies to Beijing.