I. Reasons and risks of buying a house under the name
It is not a new problem to register real estate under the current social background. This kind of behavior has a long history in China's practice, and it is not a unique phenomenon in a certain region. It is a long-term and universal problem. There are many reasons for the borrower's behavior, mainly as follows:
(1) circumventing laws and policies
1. circumventing the housing purchase restriction policy
the real estate industry is related to the national economy and people's livelihood, and it is also a powerful driving force for China's economic growth. However, in recent years, there have been problems of over-investment in the real estate market, and at the same time, there have been a large number of speculative real estate speculation, and house prices have been rising continuously, resulting in various abnormal development chaos in the real estate market. In this regard, the state has stepped up macro-control of the real estate industry, such as the housing purchase restriction policy, to curb the excessive growth of housing prices. In this context, in order to avoid the housing purchase restriction policy, some property buyers borrowed the name of others to purchase houses, which produced a large number of cases of registering real estate in the name of borrowing in practice. In 21, in order to curb the excessive rise of housing prices, many regions of the country issued purchase restriction orders to restrict some families from buying houses or speculating in real estate to maintain the stability of housing prices. This directly led some real estate speculators and families who want to buy more houses to take risks and buy houses in the name of others and register them.
2. Avoiding loan restrictions and other obstacles
The main restrictive factors of loan restrictions are the inability to provide tax payment certificates and social security payment certificates for non-local residents, as well as families who buy a third house or multiple houses. These groups often have no choice but to use other people's names to buy houses and borrow money to buy houses. In addition, major banks also have restrictions on housing loans, such as the borrower's age and stable income. Some people who are willing to buy a house but are not eligible for a loan can only borrow money from others to buy a house. In addition, urban employees generally have housing provident fund, and they can enjoy certain preferential treatment if they use housing provident fund loans when buying a house. In order to get preferential loans, some people who do not have housing provident fund have agreed with their relatives and friends or others who are qualified for housing provident fund loans to apply for loans to buy a house in their name, but the loans are actually repaid monthly in the name of the borrower.
3. Simplify procedures and reduce taxes and fees
real estate tax reform is a proposal of the two sessions in recent years, and property tax is regarded as a policy to replace the purchase restriction order. It is worth noting that on March 1, 215, the Provisional Regulations on Unified Registration of Real Estate was formally implemented, in order to standardize the registration of real estate and ensure the security of real estate transactions, thus protecting the legitimate rights and interests of real estate owners more effectively and practically. Some people think that the unified registration of real estate provides a basis for levying property tax and is a signal that property tax is about to be levied. Therefore, in order to avoid the property tax laws and regulations that may be implemented in the future and reduce the tax burden of buying houses, some people sign real estate registration contracts with others in order to achieve the effect of tax avoidance. Similar to the property tax, the inheritance tax has also been put on the agenda of China's tax reform. Some people directly register their own houses in the names of their children or other future heirs in order to avoid inheritance tax and simplify registration procedures.
(2) Competing for specific housing concessions
In recent years, housing prices in China have soared, and some low-and middle-income people who need to buy houses cannot afford to buy houses. The state provides affordable housing for these vulnerable groups to ensure their living conditions. Compared with ordinary commercial housing, affordable housing has a fairly favorable price. Because of this, in order to truly provide affordable housing to the people who need it most, the government will set corresponding application conditions, such as family economic conditions and housing conditions, so as to exclude some people who do not need the government to provide affordable housing. However, these people who do not have the ability to buy affordable housing take advantage of the loopholes in the policy, operate privately, and use the qualifications of others to buy affordable housing, thus enjoying the preferential purchase. Borrowers often agree with celebrities to apply for housing indicators in the name of celebrities and register them in the name of celebrities. The borrowers actually live, use and pay the house price. After the restrictive matters are eliminated and the time is ripe, celebrities will assist the borrowers to handle the housing transfer procedures.
(3) Concealing real estate information
Concealing legal real estate information may have the following reasons: Some public figures, such as stars, are unwilling to expose their housing information to the public in order to maintain the peace of their lives, so they buy and register in the name of others; In order to avoid possible enforcement in the future, some people register their property, including houses, in the names of others. In order to avoid possible enforcement in the future, some people register their property, including houses, in other people's names. Even if it is enforced by the court in the future because it is unable to repay the due debts, there is no executable property under its name; Some people register their houses in other people's names and transfer their property in order to conceal their illegal income; In order to hide their gray income, some people register their income between legal income and illegal income in the name of others by buying houses, so as to achieve the purpose of hiding.
(4) Other reasons
Real estate registration is the result of autonomy of both borrowers and borrowers, which also determines that the causes of this behavior depend on the subjective wishes of the parties, so the above-mentioned reasons may be difficult to exhaust in practice. For example, some people choose to conceal the truth simply because they are trying to avoid others' criticism that their excessive wealth may lead to disasters. For example, in practice, some people choose to conceal real property information simply to avoid others' criticism that their excessive wealth may lead to disasters. There are also reasons purely for family and friendship. For example, some employees may not actually need to buy preferential rooms in their own names. Actually, they are bought and lived by relatives and friends, and some are for illegal purposes such as transferring property or evading debts.
the act of buying a house under the name has not been clearly defined in the current laws of our country, but there are considerable risks in this act for both nominal buyers and actual buyers:
1. Buying affordable housing and other policy houses under the name, because the nominal property owner reneges on his promise, investors can't obtain the property rights of the house. In daily life, due to the close relationship between the nominal property owner and the investor, the collection and preservation of written evidence are often ignored. Therefore, when a dispute occurs, the investor often cannot prove that the purchase price was paid by himself, and it is difficult for the nominal property owner to request the return of the purchase price.
2. When buying an ordinary house, it is registered in the buyer's name, and if it is registered in the buyer's name, the buyer repents or refuses to recognize it, or if it is registered in the buyer's name, its successor doesn't understand the borrowing matters and refuses to recognize the borrowing matters.
3. The third party objects to the registration of the transfer of property by the buyer to the actual investor. For example, the spouse of a registered buyer often raises objections to the provisions of the Marriage Law, denies the fact that the buyer borrows a name, and asks to confirm that the property is the same property of husband and wife.
4. The property is transferred, mortgaged or enforced by the court by the nominal buyer.
second, the dispute between the creditor's right attribute and the property attribute of buying a house under the name
There are two main views in practice on whether the borrower should actually be the owner of the house when the ownership status of the house is inconsistent with the registration status.
one view is the theory of real right. According to this view, according to the payment of the house purchase price provided by the parties, the mortgage repayment, the agreement between the two parties on the borrower's ownership of the house, etc., it can be proved that the borrower's agreement to buy the house has been formed between the two parties. The real meaning between the parties is that the borrower buys the house and obtains the ownership. Although the borrower is registered as the owner of the house according to the corresponding documents such as the house sales contract, this is not the true meaning of the parties. Therefore, there is no cause basis for ownership registration, which leads to the inconsistency between the final registration status of rights and the real status of rights. At this time, the evidence that the rights presumed by the real estate registration agency are denied due to the real status of ownership should be restored to the real status of rights, and the parties should support it if they request to confirm the real rights.
another view of "proposition". This view holds that when buying a house by name, the house sales contract between the registered obligee and the third party is true and effective, and the registration of house ownership has been completed based on this basic legal relationship. It is the only legal owner of the house, and the agreement on house ownership between the borrower and the registered obligee can only bind both parties, and there is no legal effect of directly establishing house ownership, so the borrower cannot buy a house by name according to this agreement. The borrower can't directly obtain the ownership of the house according to the agreement of buying a house by name. For example, Article 1 of the Minutes of the Meeting on Several Difficult Issues in the Trial of Disputes over Housing Sales Contracts (J.G.F.A. [214] No.489) stipulates: "If a borrower files a lawsuit with a famous person (registrant) as the defendant and demands that the house be owned by the borrower, the court shall explain to him that the borrower can file a contract lawsuit and ask the famous person to handle the house transfer and registration procedures for the borrower." Go through the formalities of house transfer registration.
There is another viewpoint that basically agrees with the conclusion of the theory of real right, and puts forward different viewpoints on the basis of the argumentation process of the theory of real right. This view holds that buying a house under the name of the parties is essentially a collusion between the parties, and it is a hypocritical expression of buying a house under the name of the real intention, which constitutes an anonymous act with the act of signing a house sale contract and registering the house in the name of the borrower. In this case, the false behavior should be regarded as invalid, so the basic relationship of real estate property right change is lost according to the ownership registration, and the corresponding property right effect does not occur. As for whether the anonymous behavior is really the borrower buying a house under the name and whether it is effective, it should be recognized according to the mandatory provisions of laws and administrative regulations. If there is no invalid situation, the borrower should support it if it requests to confirm the property right. The borrower's request for confirmation of property rights shall be supported.
III. Analysis of the present situation and problems in judicial practice
(I) Confirmation of the ownership of the house purchased by the borrower in judicial practice
In recent years, the cases of real estate registration and borrowing are on the rise. In judicial practice, due to the lack of clear legal guidance, the court has encountered many thorny problems in the process of ascertaining the facts and applying the law. Moreover, different local courts have different ways to deal with the same type of real estate registration cases.
Some courts hold that according to Articles 17 and 33 of the Property Law of People's Republic of China (PRC) (hereinafter referred to as the Property Law), the certificate of ownership of immovable property and the register of immovable property do not have "absolute" "evidential force". The ownership of real estate can not be determined only by the certificate of ownership of real estate and the real estate register, but by the real right of real estate. Just because the ownership certificate and the state-owned land use right certificate show who the owner is does not mean that the real estate owner is this person. Based on the dispute between the two parties over the ownership of the house, the ownership of the house should be determined according to the real right of real estate. We can comprehensively analyze the evidence such as the payment of house purchase money, mortgage repayment, commitment letter and witness testimony to determine the ownership of house property rights. Therefore, this kind of judgment usually recognizes that the actual investor, that is, the borrower, is the actual owner, and the registered owner, that is, the celebrity, assists the borrower in handling the transfer procedures of house ownership.
Some courts hold that there is evidence of the payment of the house purchase price and the actual use of the house, and it can be concluded that the original and the defendant purchased the house in the name of the actual investor.
The actual investor, that is, the borrower, can be required to assist the celebrity in handling the formalities of transferring the ownership of the house registered in his name. However, in the relationship between name and purchase, as a borrower, he only requests assistance in handling the creditor's rights of ownership transfer; Before the transfer registration is actually completed, it does not enjoy the real right; Therefore, the court does not support the claim to confirm the ownership.
(II) Handling problems in judicial practice
1. Different types are defined, and the judgment basis is different
From the above-mentioned real estate registration cases, it can be seen that different courts define different types of cases of the same nature, some of which are classified as ownership confirmation disputes, some as disputes over housing sales contracts, and some as disputes over returning the original property. On the basis and reason of judgment, different contract types are usually distinguished. For ordinary houses purchased and registered in the borrower's name, most courts recognize its effectiveness, holding that the borrower is the owner of the house, and the celebrity and the borrower handle the house transfer formalities, on the grounds that the contract is the expression of the true meaning of the parties, and should be performed in accordance with the contract based on the principles of good faith and fairness; Mainly based on Articles 6 and 17 of the Contract Law and Articles 7, 17, 19 and 33 of the Property Law. However, there are also a few courts that do not recognize the registration of real estate under the name of the parties to the contract, and think that the person with a name is the natural owner of the house, mainly based on Article 17 of the Property Law. Different courts have different opinions on the purchase and registration of affordable housing under the name. Some courts have ruled that the registration contract of real estate by name is invalid, and the specific reasons are different: some think that it is to use legal forms to cover up illegal purposes; Some think it is harmful to the public interest; Some think it is malicious collusion, which harms the interests of the state, the collective or the third party; A few courts consider it a mandatory provision of laws and administrative regulations, based on the provisions of Article 52 of the Contract Law. Other courts hold that the Real Estate Borrowing Registration Contract is valid on the grounds that the contract is the real intention of the parties, while the Measures for the Administration of Economically Affordable Housing are departmental regulations in nature, not mandatory provisions of laws and administrative regulations, mainly based on the provisions of Articles 55 and 57 of the General Principles of the Civil Law and Articles 124, 186 and 192 of the Contract Law.