Practical Common Collection
hand housing transactions the seller disputes disposal chapter (on)
2008.09.05 A06 Edition: policies and regulations. Advertising Source: Real Estate Times
Bo Chang Jing-Quan
Editor by: price fluctuations of it is a normal market, but trading in the secondary housing market, there was a lot of trade disputes. The reason is due to both buyers and sellers for the price of to disregard the law and integrity. the legal profession according to the actual handling of cases, combined with our existing laws and judicial interpretations of the Supreme Court and the Higher Court of Justice documents, detailed analysis of the views put forward for the second-hand housing transactions up and down at home for reference.
second-hand housing transactions has become a real estate market is the most popular types of transactions. author based on the actual handling of cases, buyers and sellers of second-hand housing transactions go back on the situation in the aggregate, and provide legal measures, to promote harmony purchase.
go back on second-hand housing transactions, the seller There are five main reasons: first, the seller is not the sale of housing with other owners on the grounds of consensus, advocating the sale of housing is not valid.
under current law, if the sale of houses is common property, the seller when the sale, subject to consensus agreement of all joint owners; otherwise, may lead to contract for the sale invalid. judicial practice, often there are people to sell the house without the consent of one's own consent, or an excuse to pursue that, asking the court to confirm the housing contract for the sale invalid. But When property rights registered in the name of a person, the buyer in the home is difficult to judge when they purchase all or a house is one of the common.
lawyers view
real or personal property owner will be assigned to the assignee, the owner is entitled to recover; unless otherwise specified, the following circumstances, the assignee shall acquire ownership of the property or movable property: (a) the transferee by immovable or movable so that when the well-intentioned; (b) the transfer of a reasonable price; (c) the transfer of real or movable property shall be registered in accordance with the law have been registered, no registration have been delivered to the transferee. assignee made in the preceding paragraph ownership of real or movable property, the original owner who is entitled to no right to request compensation for damage. parties other property rights acquired in good faith, and with reference to the preceding two paragraphs. for Interpretation of Several Issues (a) established a system of real property acquired in good faith. provided that they meet the conditions for acquisition in good faith, that the buyer in good faith transferee housing, and pay a reasonable price and make the registration of, from the protection of bona fide third party, the purpose of maintaining transaction security proceed effectively identified the sale of housing, allowing the buyer to obtain ownership of the house.
in trial practice, in accordance with the Shanghai Higher People's Court's judicial file, to distinguish between different respectively: first, sell house, the right to register only one seller, based on real estate Public Announcement in the principles of the Housing Department of the buyer reason to believe that the full rights of the seller, their sales contract signed between the seller, should be recognized as valid; but if there is evidence that the buyer's fault, and Seller malicious collusion are detrimental to the interests of others, except there.
Second, houses for sale, the right number of people registered, based on some of the common people are not allowed to dispose of joint property law, not the other right after the ratification of the personnel case, the contract for the sale shall be deemed null and void; but the buyer has reason to believe the seller is authorized, in line with elements of apparent agency constitute, valid contract of sale should be recognized.
Second, the parties entered into two different housing price contract for the sale, When the housing transaction price dispute, the seller identified housing requirements contract for the sale invalid.
order to facilitate trading, the price in the tug of war between buyers and sellers, some are agency proposed that both sides signed two contracts (commonly known as : A property rights trading center in the tax return and transfer procedures for the use (of a contract, transaction price is lower than the true price); another is signed by both parties and intermediaries in the sales contract or supplemental agreement (the supplementary agreement signed contract for the sale or price is the real transaction price). Because you can pay less taxes, so buyers and sellers willing to do it. However, the yin and yang is a contract violation, in the same time benefit to the party also hidden the associated risks. If the seller will transfer ownership to the buyer housing, the buyer refused to pay the purchase contract, real money, the two sides are likely to dispute.
lawyers point of view of yin and yang sign contracts to buyers and sellers
avoid sales tax, personal income tax, deed tax, stamp duty, urban construction tax and education surcharge and other taxes, resulting in huge loss of state taxes, but also on the effective implementation of national control policies had a negative impact.
According to the Shanghai Higher People's Court's judicial documents, before and after the contract price for the inconsistency, according to the contract after the contract prior to the principle of precedence, in principle, should be subject to a contract later. If indeed there is evidence that a party both to avoid taxes, obtaining credit etc., but deliberately in the subsequent contract, false prices, because the change rate of both parties to change the true meaning and purpose with the unlawful and should not be identified, should the contract price prior to discharge. judgments, In addition to objections from the burden of proof, but also before and after signing the contract with the fulfillment of, the agreed price and the market price of the gap between the size of the contract registration, comprehensive judging the situation.
Furthermore, the time of transaction risk , the seller may not get all the ; the buyer who has to pay less of the deed, but when it is necessary for re-selling because they are cheap at this time If the crime to the extent of tax evasion, the parties must bear the corresponding responsibility. Therefore, we must take into account the contract of yin and yang of the high risks and high on price. (The author is a law firm in Shanghai DS) to be continued
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