This case is a house purchase case under the name of Jin Shuangquan, a 20 15 real estate lawyer, tried by Dongxiaokou Court. The house is located in Tiantong Zhongyuan. Lu Zhicheng, a judge in the east of Changping Court, and an investor signed a loan contract with a famous person, which is actually an indicator for purchasing affordable housing. The court adopted Jin's view, holding that there was a relationship between the two parties to buy a house in their name, not a loan relationship, and sentenced celebrities to assist in transferring the house to investors.
First, the basic facts:
1. Daughter's public house demolition obtained the purchase index, and her father sold it on her behalf.
Plaintiff Li Xiaohua and defendant Zhou Qiang don't know each other. In 2006, Li Xiaohua was placed in a public house in Chongwen District, Beijing, and Li Xiaohua received a resettlement fee and a purchase target. At the same time, his father's house also moved and got two indicators. Li Xiaohua has been abroad for a long time, and his father is responsible for all house demolition in Li Xiaohua. His father negotiated with Li Xiaohua to sell the Li Xiaohua Index. Therefore, Li Xiaohua's father went to the chain organization in Tiantongyuan area to register and sell the purchase index. After the introduction of Zhou Qiang and Li Xiaohua's father, the two parties agreed to purchase the target price of 50,000 yuan. On the day of booking the house selection, * * * will go to the demolition department to select the house and sign the contract.
On the day of house selection, the house purchase contract was signed, and according to the requirements of the demolition department and the developer, the person who must have the house purchase index was selected. Li Xiaohua made a special trip to Beijing to choose a house, and Li Xiaohua chose a two-bedroom apartment in Zhongtongyuan, Tiantongyuan, and signed the Pre-sale Contract of Commercial Housing in Beijing with Beijing Tianqi Real Estate Development Co., Ltd., with the house price of 27 10 15.5 yuan. Li Xiaohua paid the above amount with Zhou Qiang's bank card. After choosing a house, because I left first to meet my friends, all the formalities were handled by my father Li.
2. Signing a loan contract in name, actually buying affordable housing in name.
Li and Zhou Qiang should have signed a house sales contract, but all parties agreed that the house was affordable and could not be sold. Therefore, they signed a loan contract, even if Zhou Qiang lent the house money to Li Xiaohua, if Zhou Qiang didn't pay back the money, Li Xiaohua would give the house to Zhou Qiang. The loan contract signed by both parties is as follows: "Party B (Li Xiaohua) borrowed RMB 3,265,438+0,065,438+0.5 yuan from Party A (Zhou Qiang) for the need of house purchase. Both parties agree as follows: 1. The loan term is from February 26th, 2006 to February 30th, 2008. 2. If Party B cannot repay all the money within the agreed loan period, Party B will lend the purchased house to Party A.. During the period when Party B lends the house to Party A, the house is only for Zhou Qiang's own residence and shall not be transferred, traded or leased. Otherwise, all legal responsibilities arising therefrom shall be borne by Zhou Qiang himself, and Party B Li Xiaohua shall not bear any responsibilities. 4. The temporary residence period is set as 65438+February 3, 20081. After this period, the ownership of the house will be owned by Party A. ..
Note: The purchase price is 27 1, 0 15.5, and the index price is 50,000 yuan, so both parties write the loan amount as 32 1, 0 15.5 yuan.
The deed tax, public maintenance fund and other expenses paid when buying a house are actually paid by Zhou Qiang. After the delivery, Zhou Qiang renovated the house and went through the check-in procedures. After Li Xiaohua obtained the real estate license, she could not be listed and traded for less than five years, so she could not transfer to Zhou Qiang's name. 20 14 years. After the expiration of five years, Li Xiaohua asked for assistance in the transfer, and Li Xiaohua proposed to divide the house equally according to the present value. Since then, the two sides have been controversial.
II. Proceedings
1, Li Xiaohua sued Zhou Qiang for returning the original.
Plaintiff Li Xiaohua filed a lawsuit in Dongxiaokou Court on June 20 14. The original indictment is as follows: On February 26th, 2006, the plaintiff signed a pre-sale contract with the developer to purchase the house located at Tiantong Zhongyuan 1 in Dongxiaokou Town. April 20 14, the plaintiff has obtained the property right certificate of the house involved. Because the defendant had no room to live in, the plaintiff's father lent the house involved to the defendant for temporary residence. 20/kloc-April, the plaintiff asked the defendant to vacate the house within a time limit, and the defendant has not vacated the house so far. The plaintiff is the sole legal owner of the house involved, and his property rights are inviolable. The defendant's behavior violated the plaintiff's legitimate rights and interests, and requested the court to rule that the defendant vacate the house in Tiantong Zhongyuan, Dongxiaokou Town, Changping District.
2. Jin Shuangquan, a real estate lawyer, filed a counterclaim on behalf of the defendant Zhou Qiang, requesting assistance in handling the transfer.
After receiving the indictment, Zhou Qiang found Mr. Jin through Anzhu Real Estate Lawyer Network, and Mr. Jin immediately organized a team to conduct research. Team lawyers have three opinions: first, Mr. Jin's opinion is that both parties have purchased houses under their names, and the houses are now ready for transfer, so they should file counterclaims for assistance in transfer; Second, some lawyers' opinions are that affordable housing belongs to affordable housing and is for specific protection objects. Can't buy or sell, so the counterclaim is invalid and requires compensation for losses; Third, most lawyers believe that the title of the contract signed by both parties is "loan contract" and the content is loan, only when the loan is not due. Zhou Qiang sued the transfer violation according to the loan contract. After repeated communication and risk notification with Zhou Qiang, the transfer counterclaim was finally determined.
3, filing a case full of twists and turns, is a loan contract dispute or an affordable housing transfer contract dispute, or a contract dispute.
The counterclaim was not filed smoothly. Judge Lu Zhicheng of Dongxiaokou Court held that Li Xiaohua's cause of action was to return the original things, which was a dispute over the protection of property rights. Zhou Qiang's request is to fulfill the contract and assist in the transfer of ownership. The cause of action is a contract dispute, not a cause of action, and cannot be tried together. Therefore, the counterclaim is inadmissible. Lawyer Hou Jin redrafted the indictment and prepared to file another case, but the filing office thought that the two parties signed a loan contract. Zhou Qiang should sue for repayment first. Only when the court decides that Li Xiaohua will repay the loan and Li Xiaohua fails to perform the judgment will it be treated as an auction house in the execution procedure. At this point, the case was deadlocked. Later, lawyer Jin went to the presiding judge to exchange views. Although the cause of action is determined to be problematic, it is based on the same thing after all. After repeated research with the presiding judge and leaders, he finally agreed to counterclaim and join the trial.
4. Lawyer Jin expressed his opinions on behalf of the defendant Zhou Qiang and filed a formal counterclaim.
(1) The house was acquired by demolition, not by application and lottery. Belonging to the interests of the plaintiff's demolition, the plaintiff transferred it to the defendant, and the defendant paid the consideration. The meaning of both parties is true and does not violate the mandatory provisions of the law.
(2) The loan agreement signed by both parties is actually an agreement on the pretext of buying a house. The parties mistakenly believe that the purchase agreement is based on violation of state regulations, so they use the loan contract instead of the fictitious loan as an excuse. According to the contract, the ownership of the house belongs to the owner. The two sides also have no repayment behavior and meaning, saying that the loan contract is essentially a house purchase contract under one name.
(3) All the house payment and related expenses were paid by the defendant, but actually purchased by the defendant. At present, the defendant holds the original documents of all the procedures for purchasing a house, including the purchase contract invoice, receipt, deed tax invoice, stamp duty invoice and other expenses, and the defendant pays the price qualification transfer fee of 50,000 yuan. It can be seen that the defendant is the actual buyer.
(4) Although the defendant did not authorize his father to sign in writing, he cooperated with the house selection and payment without raising any objection. The defendant accepted the house in 2006, moved in directly, and occupied the house as the owner for 9 years. The plaintiff did not raise any objection during this period, indicating that the plaintiff recognized the owner of the house as the defendant. And cooperate with the defendant to sign commercial housing sales contracts, choose houses and move in. The plaintiff showed through his own behavior that he recognized his father's qualification to sell the house on his behalf.
5. Li Xiaohua does not agree to the transfer, and there is no legal relationship between the two parties to buy a house.
(1) There is no fact that the plaintiff and the defendant purchased the house in their names, nor did they sign a loan contract or an agreement to purchase the house in the name stated by the defendant; Li Xiaohua said that she didn't know about the loan contract and didn't entrust her father to sign it. However, Li Xiaohua also said that he acknowledged the fact that Zhou Qiang borrowed money to buy the disputed house. On June 26th, 2006, 65438+February 26th, 2006, she went through the formalities of choosing a house, signing a house purchase contract and paying the house purchase price. But she didn't see the loan contract and didn't know the fact that her father "mortgaged" the house to Zhou Qiang.
(2) The plaintiff himself did not borrow more than 320,000 yuan from the defendant, nor did he receive the so-called transfer fee of 50,000 yuan paid by the defendant;
(3) Before April, 2065438+2004, the defendant never urged the plaintiff to handle the property transfer procedures of the house involved;
(4) The plaintiff himself was often abroad and returned to Shanghai after 20 10, but the developer never informed him to get the real estate license. The defendant moved into the house involved, and the plaintiff believed that the defendant borrowed money from the plaintiff's father. The plaintiff didn't know the agreement signed by his father and had never seen it.
6. Plaintiff Li Xiaohua sued for the invalidity of the loan contract on the grounds that his father had no right to sign on his behalf.
During the trial of this case, Li Xiaohua, the plaintiff, took Li Xiaohua as the plaintiff and Zhou Qiang and Li Xiaohua's father as the defendant, and filed another lawsuit in Chaoyang Court, claiming that Li Xiaohua's father signed the loan agreement without Li Xiaohua's authorization, and the contract was invalid. Li Xiaohua thinks that the loan agreement should be cancelled first. Later, Li Xiaohua applied to the Changping District Court to suspend the trial of the case. Lawyer Jin, the attorney of defendant Zhou Qiang, put forward a written opinion: Whether the loan agreement signed by both parties is valid or not does not affect the relationship between the two parties in their name. The loan agreement only proves that Zhou Qiang has paid the house payment, not that there is a loan relationship between the two parties. Therefore, the trial of the two cases is irrelevant and there is no need to suspend execution. The court adopted Mr. Jin's point of view and the case continued to be heard. However, during the trial of Changping Court, Chaoyang Court found that both parties had an interest in the case of Chaoyang Court, and Chaoyang Court suspended the trial ex officio.
Third, the court's point of view
The Dongxiaokou Court of Changping District Court held that the focus of the dispute between the original defendants in this case was whether the legal relationship between the original defendants was to borrow money to buy a house or to buy a house under their names. Although Zhou Qiang signed a loan contract with Li Xiaohua's father, the relationship between the two parties should be to buy the house under his name for the following four reasons:
1. The loan contract stipulates that the purpose of the loan is to purchase houses, and the loan amount is 50,000 yuan more than the purchase amount stipulated in the purchase contract. This extra amount is not consistent with the purpose of borrowing, so there is no need to borrow. In addition, Li Xiaohua did not return it afterwards, and there is no evidence that he ever claimed it. Therefore, from the perspective of loan amount, it is doubtful whether the loan meaning is true;
2. Except for the purchase price, other purchase taxes and fees, including decoration expenses, are paid by Zhou Qiang, and the purchase procedures are kept in Zhou Qiang except for the house ownership certificate. If Li Xiaohua is the property owner, it is unreasonable;
3. If this case is to buy a house in Li Xiaohua, you should know the source of the money, the repayment time and the process, and Li Xiaohua personally participated in the whole process of buying a house, but now he says he doesn't know the existence of the loan contract, which is unconvincing;
According to the recording of the conversation submitted by Zhou Qiang, the original defendant has been discussing the distribution of the value-added income of the house. If the relationship between the two parties under the pretext of buying a house doesn't exist, and it is simply a loan, then there is no need for Li Xiaohua to discuss and share the value-added benefits with Zhou Qiang.
To sum up, combined with the fact that Zhou Qiang has been living in the disputed house, our court finds that there is an agreement between the original defendants to buy a house under an excuse.
Regarding the validity of the agreement between the original defendant and the defendant to buy a house in the name of loan, since the disputed house was not the purchase index obtained through the lottery procedure, and the original purchase contract of the disputed house was signed before April 1 1 2008, it was an "old affordable house" according to the relevant policies of Beijing, and now the house has met the listing and trading conditions, so the verbal agreement between the two parties does not violate the relevant policies and does not infringe on the public. Now Zhou Qiang meets the conditions for buying a house in Beijing in the name of his family, so Zhou Qiang asked Li Xiaohua to transfer the disputed house to his name, and our hospital supported it. Li Xiaohua's claim for Zhou Qiang to move out of the disputed house cannot counter Zhou Qiang's counterclaim, and our court does not support Li Xiaohua's claim. To sum up, the defendant Li Xiaohua was sentenced to transfer the ownership of the house. Tiantong Zhongyuan, Changping District, Beijing belongs to plaintiff Zhou Qiang. Now the plaintiff has filed an appeal and the court of second instance is hearing it.
Fourth, real estate lawyer Jin's comments.
Every dispute over buying a house under the guise of name is a painful experience for both parties. Under normal circumstances, the relationship between the two sides is very good. The seller tried every means to make the transaction successful, and the buyer once recognized the seller as the godfather. However, due to the rapid development of housing prices in the past decade, both sides have experienced great psychological tests, but in the end, disputes and even lawsuits broke out due to serious psychological imbalance. The promises of both parties are generally verbal, such as the loan agreement in this case and individual sales agreements, but most of them are verbal.
In practice, when the court hears a case, it generally infers the true meaning of both parties at that time through the behavior at that time. The court found that buying a house under the name generally means that the buyer chooses the house, moves in, decorates and pays the house price and various expenses; It is also recognized by the court, not for buying a house under the name. Generally, the seller goes through the relevant formalities, pays the house price and decorates, and then the seller delivers it to the buyer. This situation does not count as buying a house under the name. It is not that the buyer can get the house completely if he is recognized as buying a house under his name, but also depends on whether the buyer is qualified to buy a house now. It also depends on the buyer's claim. Some buyers don't have lawyers or lawyers are inexperienced, and they don't know that the litigation request should be to transfer ownership, but to compensate for losses. In this case, only the house can be evaluated, and the seller will compensate the buyer for the appreciation according to the size of the responsibility. There are also some sellers who have no lawyers or lawyers' inexperience, and have not been confirmed by property rights, and directly sue Tengfang, which is generally not supported by the court. Judging from the summary of the dispute over the master's house purchase under the name of lawyer Jin, the choice of the cause of action is very important. Sometimes because of the wrong choice of cause of action, the court ruled that he lost the case, but the parties did not know that the court handled it unfairly. In fact, he doesn't know how to fight this lawsuit. In the process of litigation, we must sum up the court's thinking on such cases, and we must follow the court's thinking in litigation, otherwise we may lose the case without knowing why.
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