Buying a house under the name generally happens between acquaintances or relatives, but there are still many risks in real life. What are the legal risks involved in buying a house with a real name? How to guard against risks?
First, the general reasons for buying a house under one's name
1, in order to evade laws and policies, for example, to evade national mortgage, taxation, registration, purchase restriction and other related laws and policies;
2. Borrow other people's qualifications to enjoy some preferential purchase;
3. Transfer property to avoid debts.
Second, the legal problems brought by buying a house under one's name
1. The owner of the real estate registration may not be able to obtain the real ownership of the house.
Buying a house under the name makes the right holder of real estate registration not necessarily have the real ownership of the house. According to the principle of publicity and public trust in the change of real right, in order to avoid unforeseen damage to the counterparty and maintain the security and stability of the transaction, the ownership of real right should be publicized.
Movable property is publicized by possession, while real property is publicized by registration. According to Article 9 of the Property Law of People's Republic of China (PRC), "the establishment, alteration, transfer and extinction of the real right of immovable property shall take effect after being registered according to law. Without registration, it will not take effect, except as otherwise provided by law. The ownership of natural resources owned by the state according to law may not be registered. "
As can be seen from the legal provisions, the real right of real estate must be registered before it can take effect. Once made public, it will generate credibility.
2. The investor is not the person who disposes of the property as stipulated by law.
The transaction behavior of the parties based on their trust in the publicity of real rights should be protected by law, such as the system of bona fide acquisition. As for buying a house under the name, the investor is not the registered right holder, and even if he actually owns, manages and uses the house, he is not a legal qualified disposition.
3. The registered obligee can dispose of the property without authorization and be protected by law.
The registered obligee disposes of the house without authorization, such as mortgage and sale. If the other party meets the conditions of bona fide acquisition, the law will focus on ensuring the security of the transaction and the interests of the bona fide counterpart, and will not invalidate the change of property right just because its non-factual obligee has no right to dispose of it.
Therefore, if there is a dispute over buying a house under one's name, it will usually fall into such a situation: the law protects the legitimate autonomy of the parties, that is, the agreement between the two parties on buying a house under one's name, but the law guarantees the transaction safety and the trust interests of the bona fide counterpart based on the credibility of property rights publicity to maintain social stability.
Third, the risks faced by both parties to buy a house under the guise of buying a house
(1) Risks faced by investors
1, the investor may be "money and house are empty"
If the registered obligee goes back on his word after buying a house under his name, even if the parties have enough evidence to prove that the fact of buying a house under his name exists, it will bring them a lot of unnecessary trouble. What's more, if you can't prove the fact of buying a house under your name, investors' own rights and interests will not be guaranteed, resulting in empty money and vacancies.
Investors can't get the ownership of the house.
If the house purchased is affordable, the investor actually does not meet the purchase conditions. Even if the registered obligee recognizes the fact of buying a house under its name, the investor can't obtain the ownership of the house.
Investors can't stop real estate transactions.
If the registered obligee sells the house without authorization, and the counterparty is in good faith and has gone through the registration of change, the investor cannot ask to cancel the transaction and take back the house. Even if it is proved that the fact of buying a house under the name exists, the registered obligee can only be required to bear corresponding responsibilities.
4. Other rights of the house may affect the rights and interests of investors.
If the registered obligee sets other rights on the house without authorization, such as mortgage, etc., if other rights are in good faith, investors usually need to get rid of other rights to get the approval of other obligees. What's more, if the mortgagee realizes the mortgage according to the legal provisions and mortgage registration, it will inevitably affect the rights of investors themselves.
(2) Risks faced by the registered obligee
1. The registered obligee may lose the condition of enjoying preferential treatment again.
If buying a house requires the qualifications and conditions of the registered obligee to enjoy the preferential conditions, the registered obligee will usually lose the opportunity to enjoy the preferential conditions again after buying a house under his name, such as the preferential policies for the first suite in some cities and the orders obtained by lottery.
2. The failure of investors to repay loans on time will affect the credit qualification of registered creditors.
If the investor does not purchase the house in full, but goes through the mortgage formalities, and the investor fails to fulfill the mortgage repayment obligation, it will actually affect the credit qualification of the registered obligee, and even the bank will directly ask the registered obligee to repay.
3. Other property of the registered creditor can be executed.
If the registered creditor fails to repay the due debts, the creditor shall apply to the court for compulsory execution. When the court finds out the property of the person subjected to execution, it will regard the house purchased under the name as the property of the registered obligee, which can be kept as the property necessary for the life of the person subjected to execution, but the execution of other property will lead to the execution of the property necessary for the life of the registered obligee.
4. The registered obligee may have a broken relationship with the investor.
In the case of real-name house purchase, the investor is usually closely related to the registered obligee, even in the real-name house purchase dispute tried by the court. Therefore, based on trust, many parties have not signed a written agreement or the agreement is unclear. However, because there are many unpredictable factors hidden in the name of buying a house, it is easy to cause disputes, which not only damages the property rights of the parties themselves, but also damages the feelings of both parties. Many people have changed from relatives to enemies.
Fourth, how to reduce the risk of "buying a house by loan"?
In view of the many risks of buying a house under a real name, the Guide to Buying a House advises consumers to buy a house through formal channels as much as possible. If they have to buy a house by name, they should pay attention to the following aspects to minimize the risk:
1. Before buying a house under one's name, first make clear the nature of the house to be purchased, whether the house can be listed and traded, and whether the purchase under one's name violates the provisions of national policies, in case the ownership of the house cannot be obtained in the future.
2. Sign a written agreement. In order to distinguish it from the loan contract, the written agreement should clarify the contractual relationship between the two parties in the name of buying a house, and a third party can be invited to witness the contract.
3. Pay attention to retaining the evidence when both parties negotiate and sign the real-name house purchase agreement, such as inviting friends to witness, audio and video recording, etc.
4, pay attention to save the purchase procedures, payment vouchers (bank transfer records, receipts, repayment records, etc.). ), purchase invoices, real estate licenses and other written evidence materials.
(The above answers were published on 20 18-03-22. Please refer to the actual situation for the current purchase policy. )
Click to view more comprehensive, timely and accurate new house information.