Case 1
In August, 20 10, Mr. Dai signed the Real Estate Transfer Contract with Ms. Ding and Mr. Han, stipulating that Ms. Ding and Mr. Han would transfer the demolition and resettlement houses under their names that have not yet obtained the certificate of immovable property rights to Mr. Dai, and Mr. Dai should pay the down payment on the day of signing the contract and the balance on the day of transfer. After Mr. Dai paid the down payment according to the contract, Ms. Ding and Mr. Han delivered the house involved to Mr. Dai for use.
From April 2065438 to April 2009, Ms. Ding handled the certificate of immovable property right of the house involved, but it has been two years since the demolition and resettlement house was listed and traded, so she has not gone through the transfer formalities so far. On June 2, 2020, due to the need of loan, Ms. Ding registered the mortgage of the house involved in the bank without Mr. Dai's consent. Later, due to Ms. Ding's failure to repay the loan, the house could not be transferred to Mr. Dai's name.
Mr. Dai sued Ms. Ding and Mr. Han to the court, and the two parties reached a mediation agreement under the coordination of the presiding judge. After Ms. Ding went through the mortgage cancellation procedures with the bank, Ms. Ding assisted Mr. Dai to successfully handle the house transfer procedures.
Risk warning
Compared with ordinary commercial housing sales, the risk of delayed transfer in the case of demolition and resettlement housing sales is greater. What is the reason?
First, this kind of contract takes a long time to perform and is greatly influenced by policies. For example, the house in the case cannot be traded within two years after handling the certificate of immovable property rights.
Second, due to the long performance time, the house may increase in value, which may easily lead to the psychological imbalance of the seller and hinder the performance of the contract. For example, if the property right certificate is not applied to prevent the transfer, the house transfer formalities are not cooperated, or even the contract is maliciously breached.
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In April of 20021year, Xiao Wang took a fancy to a house in the city center. Subsequently, through negotiation between the intermediary and the seller, Ms. He, the two parties signed a house sales contract on April 1 1, stipulating that Ms. He would sell the house to Xiao Wang at the price of1550,000 yuan. On the day of signing the contract, Xiao Wang paid a deposit of 200,000 yuan, and agreed to pay a down payment of 270,000 yuan before June 7 to complete the transfer procedures.
One week before the transfer, Xiao Wang learned that the husband and wife need to provide proof of no room to transfer, and the wife's household registration is in her hometown. It took several days to mail it, and she immediately informed Ms. He of this situation through the intermediary. Ms. He said that she could wait patiently and asked Xiao Wang to mail it quickly. In the meantime, the intermediary contacted Ms. He to inform the mailing situation of the household registration book. On the morning of June 7, the intermediary informed Ms. He that the household registration book had not been issued, and Ms. He just replied, "Is tomorrow ok?"
On the afternoon of June 7, Ms. He told the intermediary that after consulting a lawyer, Xiao Wang had breached the contract and did not agree to transfer the ownership again, and said that Xiao Wang would be held liable for breach of contract. Since then, the intermediary and Xiao Wang have repeatedly contacted Ms. He for transfer, and Ms. He refused. Xiao Wang appealed to the court, demanding to cancel the house sales contract, and asked Ms. He to double the deposit and compensate for the loss of 200,000 yuan caused by the rising house price.
The judge in charge comprehensively reviewed the WeChat chat records of buyers and sellers and intermediaries with Ms. He. Records show that Ms. He did explicitly agree to postpone the transfer and down payment. In this case, Xiao Wang did not breach the contract. After explanation, Ms. He also agreed to continue to perform the contract and transfer the house to Xiao Wang. However, Xiao Wang said that due to the tightening of bank mortgages and the increase in interest rates, it is now necessary to pay more than 200,000 yuan of mortgage interest due to transfer, and this part of the expenses should be borne by Ms. He. After communication between the two parties, Ms. He agreed to compensate Xiao Wang for a loss of 80,000 yuan.
Risk warning
A legally established contract is legally binding on the parties. Both parties shall fully perform their respective obligations in accordance with the agreement. If one party fails to perform its contractual obligations or fails to meet the contract obligations, it shall bear the liabilities for breach of contract such as continuing to perform, taking remedial measures or compensating for losses. In this case, although the buyer and the seller agreed on the time of down payment and transfer when signing the contract, both parties changed the time during the performance of the contract, and the change has legal effect on both parties. After reaching a new agreement, Ms. He refused to transfer the ownership on the grounds of the other party's breach of contract, and there was no legal basis.
Four suggestions on preventing the risk of overdue transfer
1. When signing the sales contract, clearly stipulate in advance the payment method and time limit of the purchase price, the reasons for delaying the transfer, the time limit for the transfer of property rights, the cooperation obligations of both parties, etc.
Second, it is clearly stipulated in the house sales contract that the buyer cannot obtain the house property right and the liability for breach of contract due to the seller's breach of contract.
Three, the buyer in the purchase of second-hand housing, to review the real ownership of the house as comprehensively as possible, should choose a formal intermediary for review. For example, in some cases, if there are husband and wife or family members in the demolition and resettlement house, you can ask both husband and wife or family members to sign a house sale agreement for confirmation.
Four. If there is a situation that may lead to the delay of transfer in the actual performance, it should communicate and negotiate with the other party in time, keep the relevant evidence that both parties have reached an agreement on the new situation, and it is best to sign a supplementary agreement on the negotiation results.
Legal link
People's Republic of China (PRC) Civil Code
Article 119 A legally established contract is legally binding on the parties.
Article 209 The establishment, alteration, transfer and extinction of the real right of immovable property shall take effect after being registered according to law; Without registration, it will not take effect, except as otherwise provided by law.
Article 509 The parties shall fully perform their obligations as agreed.
The parties shall abide by the principle of good faith and fulfill the obligations of notification, assistance and confidentiality according to the nature, purpose and trading habits of the contract.
During the performance of the contract, the parties shall avoid wasting resources, polluting the environment and destroying the ecology.