First, keywords: housing ownership, housing use right case, execution objection by outsiders.
1. Typical case:
As the saying goes, one shop raises three generations. Lao Yang was moved by the developer's publicity, so he spent half his life savings to buy a shop. Before the real estate license was issued, Lao Yang couldn't wait to decorate and open a restaurant. Unfortunately, the good times did not last long. I haven't recovered it yet. I first received the ruling and auction notice from the court to seal up the shop. It turned out that the developer of the development shop was sued by a construction company of the construction unit because he was unable to pay the project payment. The developer failed to fulfill his obligations in time and was enforced by the court. Lao Yang, who is still scratching his head, had to file an execution lawsuit against the outsider in order to save the shop, asking the court to stop sealing up the shop involved.
2. Court decision
The court held through trial that, according to the effective judgment, a construction company has the priority to be compensated for all the properties developed by the developer, including the shops purchased by Lao Yang. The house sales contract signed between Lao Yang and the developer and the closing time of the house were all after the store was seized, and the store was not the only residence in Lao Yang, so Lao Yang's right to expect the property rights of the store was inferior to the construction project price of a construction company. Therefore, the court ruled that all claims of Lao Yang were rejected.
Second, 1. Why didn't the store get the ownership of the house? Generally speaking, there are two ways to obtain the ownership of a house: one is to obtain the ownership based on legal acts; The second is to obtain ownership based on non-legal acts. The first situation includes buying and selling gifts; The second category includes legal documents or requisition, inheritance and legal construction.
Article 2 14 of the Civil Code stipulates that the establishment, alteration, transfer and extinction of the real right of immovable property that should be registered according to law shall take effect when it is recorded in the register of immovable property. This is mainly about the first way to obtain housing ownership.
Articles 229 to 232 of the Civil Code are mainly about the second way to obtain housing ownership. In view of the fact that the first way to obtain house ownership is normal in life, no specific provisions are quoted here.
It can be seen that the first way to obtain ownership takes real estate registration as an effective element. In short, if you want to get the ownership of the house by buying, selling, giving, etc. , you must register, otherwise you can't get the ownership of the house. In this case, the buyer in Lao Yang.
2. What if I buy a shop but have no room?
In life, due to the imperfect supporting system, incomplete initial registration of some houses, historical problems and the influence of the traditional concept of "emphasizing possession over registration", real estate registration has not been fully implemented. Many people have no books at home. When you buy a store, you can look for solutions from the following angles:
First, the initial registration has been completed. If the shop has been initially registered, the owner should immediately take legal measures to require the developer to cooperate with the transfer registration procedures. It should be noted that for every day of delay, the risk will increase by one day.
Second, the initial registration has not been handled. We can weigh the operating conditions of developers repeatedly, and resolutely choose to terminate the contract and demand compensation for liquidated damages and other ways to protect rights.
Third, it has been sealed up or pre-sealed up by the court. According to their own situation, consult professionals, consider bringing an execution objection lawsuit against outsiders to cancel execution or seeking compensation for breach of contract from developers.
3. What is the order of rights of the shops involved? (Professionals and non-professionals can be ignored).
The rights involved in the execution of the objection lawsuit by the outsider may include: the buyer's expected real right (not expressly stipulated, but adopted in theory and practice), the priority of compensation for the construction project price, mortgage, general creditor's rights and so on.
Property rights expectation of buyers can be divided into consumer's property rights expectation (see article 125- 127 of the minutes of the Ninth National People's Congress) and ordinary buyers' property rights expectation. Among them, consumers' right to expect property rights only refers to commercial housing (only refers to first-hand houses purchased from developers), and buyers' right to expect property rights can generally refer to first-hand houses and second-hand houses (including shops).
According to the provisions of Articles 1 and 2 of the Supreme People's Court's Reply on the Priority of Compensation for Construction Project Price (abolished, but this view still has theoretical and practical support), the priority of compensation for construction project price takes precedence over the property expectation right of mortgaged consumers and is greater than the mortgage right.
Combined with the provisions of Articles 28 and 29 of the Provisions of the Supreme People's Court on Several Issues Concerning People's Courts Handling Cases of Execution Objection and Reconsideration, the order of rights of outsiders in the action of execution objection can be summarized as follows
Consumers' right to expect the buyer's property rights > construction project price priority > mortgage > ordinary buyers' right to expect the property rights.
In this case, a construction company applied for execution and enjoyed the priority of compensation for the construction project price, but Lao Yang only bought the shop, and could not enjoy the expected property rights of consumers. Therefore, it is expected that the shops purchased will be "locked up".