In order to buy a house, some people think of borrowing the name of relatives to circumvent the house-buying policy.
But it should be noted that family affection alone cannot avoid all risks, and a little carelessness may lead to a loss of love and wealth.
In Baiyun District, Guangzhou, there was a dispute over buying a house by name. In order to circumvent the purchase restriction policy, my sister borrowed her brother's name to buy a house.
Unexpectedly, due to a debt dispute, the house registered under his name was sealed by the court. The older sister claimed that he was the actual owner of the house and filed an enforcement objection to the court.
Can the house be ruled out?
A few days ago, the case went through the first instance and the second instance, and both of them ruled to dismiss the sister's request.
It is reported that the Civil Code has clear provisions on real estate rights, and its establishment, alteration, transfer, and extermination shall become effective after being registered in accordance with the law.
Text/Guangzhou Daily All-Media Reporter Charter Correspondent Yun Faxuan
The house was sealed up after buying a house under his brother's name
In August 2014, Li Mouxin and Cai Moukui used the name of Cai Mouhua’s brother Cai Mouhua to avoid the purchase restriction policy to purchase a house in Nanhai District, Foshan City. Li Mouxin wrote in the "Guangdong Province Commercial Housing Sales Contract" Signed Cai's name on the "buyer" office and pressed the fingerprint. The house only went through the pre-sale contract filing, but did not go through the transfer registration procedures.
The house is occupied by Li Mouxin and Cai Moukui's family, and all expenses related to the house, such as house tax, property management fees, water, electricity and gas fees, are paid by them.
In 2015, the Baiyun Court ruled that Cai Mouhua and others should repay Hongxin Company.
After applying to the court for compulsory execution, Hongxin Company seized the above-mentioned real estate pre-sale registered under the name of Cai Mouhua.
On January 18, 2019, Li Mouxin and Cai Moukui filed an execution objection.
The Baiyun Court made a ruling in September 2019: Rejecting Li Mouxin and Cai Moukui's objection requests.
The two plaintiffs dissatisfied with the ruling, believing that the above-mentioned houses were actually purchased, and filed an enforcement objection in October 2019.
The court ruled to dismiss the enforcement objection
Do Li Mouxin and Cai Moukui have the right to claim that the houses involved in the case belong to them?
Can the original court's enforcement of the house be ruled out?
The court held that the housing management department confirmed that the pre-sale registration was under the name of Cai Mouhua, and Cai Mouhua confirmed that he was responsible for the joint repayment of the loan debts to Hongxin Company through an effective judgment, but the actual performance was not completed. Therefore, the housing involved was regarded as Cai. The enforcement of a Chinese property is lawful and well-founded.
Li Mouxin and Cai Moukui argued that the house involved in the case was bought by him in the name of Cai Mouhua and registered under Cai Mouhua's name, claiming that the house involved in the case belongs to them, and based on this claim that they have the right to exclude enforcement.
The court held that, according to the law, the establishment, modification, transfer, and extermination of real estate rights are legally registered and effective; without the provision that registration is not effective, the real estate involved is now neither registered under Cai Mouhua’s name, nor has it been registered. Registered under the names of Li Mouxin and Cai Moukui, the litigation request by Li Mouxin and Cai Moukui to confirm that the property involved in the case belongs to them lacks a legal basis.
As for whether Li Mouxin and Cai Moukui have civil rights and interests sufficient to rule out compulsory execution.
Even if Li Mouxin and Cai Moukui claim to purchase a house under the name of the truth, the relationship between Li Mouxin, Cai Moukui and Cai Mouhua is also a purchase contract under the name of a house, and Li Mouxin and Cai Moukui have the right to the house involved in the case. It is only the creditor's right to request Cai Mouhua to perform the obligations of the lender, and the creditor's right should not be protected in priority over the creditor's rights of Hongxin Company.
In the same way, the pre-sale registration of the houses involved in the case under Cai Mouhua’s name is due to the actual performance of the house purchase contract under the borrowed name, which also conforms to the wishes of Li Mouxin and Cai Moukui as a party to the borrowed name. Li Mouxin and Cai Moukui When the conditions are met, it should be obtained by requesting Cai Mouhua to perform the obligations of the lender to obtain the ownership registration of the house involved. Therefore, Li Mouxin and Cai Moukui directly appealed for confirmation of their rights based on the contract relationship of the purchase of houses under the name of the borrower, and there is no legal basis.
Therefore, the Baiyun Court made a judgment of first instance: dismissing all claims of the plaintiff.
Li Mouxin and Cai Moukui appealed against the judgment, and the Guangzhou Intermediate People's Court made a second-instance judgment: the appeal was rejected and the original judgment was upheld.
Judge said: "Buying a house by name" is not reliable
In practice, due to reasons such as restrictions on home purchase qualifications, evasion of debts, and obtaining loans, the actual home buyer entrusts a nominal home buyer to purchase a house in his name, commonly known as "buying a house by name."
If a house purchased by borrowed name is subject to compulsory measures by the court due to the name of the buyer, can the borrower exclude compulsory enforcement based on the borrowed name relationship?
According to the law officer, according to the relevant provisions of the Civil Code, in this case, the purchase of a house under the name of the two parties is a debt-to-debt relationship between the two parties, and it is not sufficient to counter the mandatory enforcement claims enjoyed by Hongxin Company; the two plaintiffs borrowed the name to avoid the purchase restriction policy. Subjectively, there is a deliberate mentality, and the fault lies with the two plaintiffs, who should bear the risks arising therefrom.
Some buyers use "buying under the name of a house" to evade, but ignore the risks of "buying under the name of a house".
In addition to the circumstances of this case, common risks include: the registrant repents, and when the investor has insufficient evidence to prove that the relationship between the two parties is to buy a house by name, it is difficult to obtain the property rights or recover the purchase price; , The levy compensation is received by the registrant, causing disputes; the actual purchaser of the house dies accidentally, causing the actual heir to be unable to inherit the real estate and other risks.
Civil Code Classroom:
Article 208 of the Civil Code. The establishment, modification, transfer and extinction of real estate rights shall be registered in accordance with the provisions of the law.
The establishment and transfer of movable property rights shall be delivered in accordance with the law.
The establishment, modification, transfer, and extermination of real estate rights in Article 209 of the Civil Code shall become effective after registration according to law; unless it is registered, it shall not become effective, unless otherwise provided by law.