An agreement alone is not enough when using a house to pay off a debt is enforced by a third party.
Using things to pay debts is also called repaying things on behalf of things. That is, the two parties reach an agreement and the creditor receives the "thing", thereby canceling the original debt. What needs to be reminded here is that when it comes to paying off debts with property or housing, it is not enough to have an agreement. We must pay attention to the transfer of property rights. Through a case selected by the Supreme Court, let’s see if using a house to pay off a debt can exclude a third party from enforcing the house?
Case No.: Nantong Intermediate People’s Court of Jiangsu Province (2020) Su 06 Civil Final Civil Judgment No. 3787.
Summary of the case:
He Moufei and Wang were friends. In 2010, Wang asked a water conservancy development company (He Moufei held 95% of the company's equity and served as the The legal representative of the company) borrowed 9 million yuan. After the loan occurred, Wang was unable to repay the entire loan, so he used two properties in his name, Room 801 and Room 901, Building F, in a community in Hedong District, Sanya City, to offset the loan of 1.324 million yuan. The property ownership certificate of Room 901 has been changed in 2012, and He Moufei is now registered; the transfer registration procedure of Room 801 has not been completed, and the owner of the house is still registered as Wang (Due to purchase restrictions, He Moufei does not have a quota for two houses).
Later, Wang was asked by the third-party creditor to apply to the court for enforcement due to other cases. During the execution process, the Tongzhou District Court of Nantong City entrusted the Suburban Court of Sanya City to seal up the house in Room 801 registered under Wang’s name. On April 4, 2019, the Tongzhou District Court of Nantong City made an execution ruling and decided to auction Room 801. He Moufei, a person outside the case, raised objections and believed that he was the actual owner of the house, so he asked the court to stop the execution. The court ruled to reject his request. He Moufei was dissatisfied and filed a lawsuit to object to the execution.
After hearing, the Tongzhou District Court of Nantong City held that:
Article 28 of the "Regulations of the Supreme People's Court on Several Issues Concerning the Handling of Enforcement Objections and Reconsideration Cases by the People's Courts" stipulates that "money During the execution of creditor's rights, if the buyer raises objections to the real estate registered in the name of the person subject to execution, if the following circumstances are met and its rights can be excluded from execution, the People's Court shall support it:
(1) Seizure in the People's Court A legal and valid written sales contract has been signed before.
(2) The real estate has been legally occupied before the people's court seized it.
(3) The full price has been paid, or the property has been paid in accordance with the contract. It is agreed to pay part of the price and deliver the remaining price for execution in accordance with the requirements of the People's Court.
(4) Failure to complete transfer registration due to reasons other than the buyer's own." Accordingly, He Moufei in this case requested that the execution of the house in Room 801 be excluded from non-compliance with regulations.
The reasons given by the court are as follows:
1. According to Sanya City’s commercial housing purchase restriction policy, He Moufei does not meet the conditions for purchasing a second house and cannot request the seller, namely Wang, to He handled the transfer registration of the house in Room 801, so he does not have the right to expect property rights in the house in Room 801.
The real estate purchase restriction policy is not a law or regulation. If the policy changes, He Moufei will have the right to expect property rights in Room 801.
2. He Moufei claimed that he purchased the house in Room 801 to pay off the debt with the house, that is, he signed the house purchase contract not to obtain the ownership of the house, but to realize the repayment of the loan debt. According to the principle of equality of creditor's rights, compared with It does not have priority protection value over other claims.
The time when the debt is settled with the house comes first.
3. The user name recorded on the property management fee and cable TV fee receipts for Room 801 provided by He Moufei is Wang. The above fees cannot be determined to be paid by He Moufei. He Moufei claims that he The actual possession of the house is insufficient.
4. He Moufei failed to provide evidence that he had submitted the house transfer registration to the house registration authority. His claim that he could not handle the house transfer registration was due to the house purchase restriction policy and that he was not at fault is also untenable.
We cannot blame He Moufei for not going through the transfer of property rights. Isn't it redundant and demanding to still submit a house transfer document to prove that you applied, knowing that you can't pass the transfer due to the purchase restriction?
Three points to summarize:
1. Using house to offset debt ≠ priority:
The contract of using house to offset loan is, in the final analysis, the settlement of debt, and It is not the priority of the mortgagee. Therefore, compared with the civil rights and interests to be executed in another case, the law does not provide for its priority protection.
In addition, due to the principles of publicity and credibility, if the house has not been in the name of the creditor for a day, ordinary people, including other creditors, will not consider the creditor to be the property owner based on their reliance on the search data from the government property rights registration center.
2. Transfer of property to pay debt:
If there is only an agreement to pay off the property but no actual transfer of property rights, the original debt will not be eliminated. The purpose was not fully achieved. Although our country's laws do not have clear provisions on repaying debts with things, referring to the "Provisions of the Supreme People's Court on Several Issues Concerning Execution and Reconciliation", "Article 8: If the execution and settlement agreement is completed, the People's Court will conclude the execution case." It can be seen that the emphasis is on The debt will not be extinguished until the settlement agreement is fully fulfilled.
3. The use of houses to offset debts must be implemented:
After the parties sign the agreement to use houses to offset debts, if the parties are unable to go through the transfer registration due to the purchase restriction policy, then find a way to let the other party Sell ??the house, mortgage the house or get the residual value of the house, and pay it back in real money; if that doesn't work, sign a three-party agreement and a holding agreement, arrange for a trusted third party to submit the property certificate, and as the formal property owner, accept the payment first let.