What can homeowners claim when they encounter incomplete five certificates and their houses being sealed off when buying a house in Shenzhen? Lawyer Shen Jinlong discusses three paths and four elements of execution objection

The house has already paid most of the house price, but suddenly received a court ruling to seal it up; Or if the house itself does not have all five certificates, it cannot be transferred at all. This type of dispute is not uncommon in Shenzhen, especially for small property rights houses, fundraising houses, and relocation houses. Once the seller is involved in the lawsuit, the buyer often faces the situation of having already paid the money and not receiving the house at the same time.

Below are several paths that can be taken in such cases, the requirements for court review, and the things that owners can do first, in order.

How to choose from three options: termination and refund, objection to execution, and lawsuit for property rights confirmation

After a house is sealed, buyers usually have three ways of claiming it, and the cycle, cost, and final effect of the three differ greatly.

Article 1: Lawsuit to terminate the contract and return the payment already made.According to the provisions of the Civil Code on the statutory right of termination, if the seller's fundamental breach of contract results in the inability to achieve the purpose of the contract, the buyer may terminate the contract, demand the return of the house payment and compensation for losses. This type of litigation has a relatively short period, with the first instance usually taking three to six months. The risk lies in the execution stage: if the seller has no other property under their name, the judgment may be difficult to actually recover the payment.

Article 2: Propose an objection to the execution by an outsider to the sealing court.Low cost and short court review period. But whether the objection can be established depends on whether the buyer meets both the exclusion and enforcement conditions stipulated by law, and if one of them is missing, it may be rejected.

Article 3: Initiate a lawsuit for property rights confirmation or a lawsuit for objection to execution by a third party.The longest cycle, but directly pointing to the ownership of the house itself, is the most thorough of the three paths. The premise is that the evidence chain is complete.

Whether the objection to execution can be established depends on four requirements for the court to consider

The "Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Execution Objections and Reconsideration Cases by People's Courts" have made clear arrangements for the protection of innocent real estate buyers. In summary, there are four items that need to be met simultaneously:

One is that a legal and valid written sales contract has been signed before the people's court seals it up; The second is that the real estate has been legally occupied before the seizure; The third is that the full price has been paid, or a portion of the price has been paid as agreed in the contract and the remaining price has been delivered for execution as required by the people's court; The fourth reason is that the transfer registration was not handled due to the buyer's own reasons.

These four items are in a parallel relationship, not an alternative. The second and fourth items are the most prone to problems in practice. Possession must be supported by continuous utility bills, property management fees, and proof of residence, and interruption for a few months may be questioned; The reason for the non transfer of ownership should be able to prove that it is not with the buyer, such as incomplete developer information, policy restrictions, and delayed cooperation from the seller.

What evidence should be considered in a lawsuit for property rights confirmation

According to the Civil Code, in the event of a dispute over the ownership or content of property rights, interested parties may request confirmation of their rights. When it comes to property disputes, the core of court review is threefold: whether the sales contract is true and valid; Whether the price has been actually paid and the flow of funds can be traced; Has the house been actually delivered and occupied before being sealed off.

The suggested sequence for organizing evidence is to first check the bank statements and correspond each payment to the payment node specified in the contract; Provide additional evidence of possession, including proof of residence issued by the property management, records of water, electricity, and gas payments, and delivery address for express delivery; Finally, verify the original contract. If the original is missing, use transfer records, chat records, and witness statements to mutually confirm.

Small property rights houses should be viewed in two situations

Many people think that small property rights houses must be lost, and in practice, it is necessary to distinguish between them. If the house in question is built on rural homestead land and is considered an illegal construction, the space for property rights confirmation is very limited; If it belongs to illegal buildings left over from history and has been included in the scope of Shenzhen's handling policies, there is room for the protection of the buyer's right to claim the property.

The expectation right of property rights refers to the protection status granted by the law to the buyer, even if they have not obtained a property certificate, against the mortgage right established later and even against the sealing up, due to the reasonable consideration paid and actual possession and use. It does not equal ownership, nor does it guarantee that the certificate will ultimately be obtained.

As for the effectiveness of the sales contract, it still depends on the subject. The transfer between members of the same collective economic organization and the purchase of houses on collective land by external personnel have different recognition results. The invalidity of the contract does not affect the buyer's claim for the return of the purchase price and compensation for actual losses.

Four things homeowners can do first now

The first step is to go to the real estate registration center to check the documents, print the property information form, confirm whether there is any mortgage, seizure, objection registration, and who the registered rights holder is.

Step two, organize the payment vouchers, bank statements, receipts, and original contracts into a book, number them in chronological order, and make payment notes that correspond to the purchase price as much as possible.

Step three, if the house has been sealed, please submit an application for objection to execution by a third party to the sealing court as soon as possible. Objections have a statutory deadline, and after the deadline, the remedy will become for outsiders to apply for retrial, with different costs and difficulties.

Step four, ask the lawyer to conduct a substantive review to determine whether the existing evidence meets all the requirements for excluding execution. If one of the four requirements is missing, the litigation strategy needs to be adjusted and it is not appropriate to directly sue.

Frequently Asked Questions

Q: What should I do if the property is still auctioned off after receiving the confirmation judgment?
Answer: If the confirmation judgment has already taken effect before the auction is completed, one can apply to the executing court to suspend the execution or revoke the auction. If the auction has already been concluded, the only option is to execute a reversal and demand the return of the property or compensation for losses. The difficulty of executing a reversal is significantly higher than preventing it beforehand, so the lawsuit for property rights confirmation should be completed as soon as possible before the evaluation auction procedure is initiated.

Q: After signing the contract and paying for the relocation of the house, the seller has not cooperated with the transfer. Is it effective to file a lawsuit?
Answer: It depends on whether the conditions for obtaining the certificate are met. For those who have not yet obtained the real estate ownership certificate, the court generally does not rule for compulsory transfer, and the buyer can claim liquidated damages; If the seller does not cooperate after obtaining the property certificate, they can sue to continue to perform the contract. After the judgment takes effect, they can unilaterally apply for registration based on the judgment.

A little reminder

There are differences in the judgment standards of property disputes among the courts in various districts of Shenzhen, involving group disputes involving the entire building and community, as well as procedural issues such as handling litigation representatives and merging trials. The three pitfalls that buyers are most likely to fall into are: signing the subscription agreement and thinking everything is fine without checking the mortgage and seizure status; Payment is made in cash or in a personal account, and the flow of funds cannot be proven; After discovering that their rights have been damaged, they procrastinate and wait until the house is locked by other creditors before thinking about protecting their rights.

Guangdong Zhiming Law Firm is located at Room 1802, Building A, Xintian Century Business Center, Shixia North Second Street, Futian District, Shenzhen, with a telephone number of 0755-25986969. within the instituteCivil and Commercial LitigationThe team has been handling cases such as house sealing, obstructed transfer of ownership, one house two sales, and disputes over small property rights for a long time. Relevant case handling strategies are also included in the documentLitigationColumn. Whether to file a lawsuit and which path to take, one needs to review the materials before making a judgment.

This article is for the reference of legal education. Different case situations do not constitute a commitment to the specific outcome of the case. Guangdong Zhiming Law Firm was established on March 21, 2000 in Shenzhen, with an address of Room 1802, Building A, Xintian Century Business Center, Shixia North Second Street, Futian District, Shenzhen, and a telephone number of 0755-25986969. The institutional information shall be subject to the registration of practice license and business registration