The outsider’s expectation right of the real estate right excludes the conditions for execution.

Chen Lin

In the enforcement case of the court, the real estate purchased by the outsider in the name of the person being executed is seized by the court, and the outsider can protect the self-interest through the procedures of executing the objection and the execution of the objection, so as to achieve the purpose of excluding the property right. What conditions do the outsiders have in order to exclude the execution of property rights?

References

Shanghai Pudong New Area People's Court (2017) Shanghai 0115 No. 189 Huaxia Bank Co., Ltd. Shanghai Branch v. Shanghai Standard Metal Products Co., Ltd. and other financial loan contract dispute enforcement ruling

[case brief introduction]

Shanghai Pudong New Area People's Court is implementing the application executor Hua Xia Bank Co., Ltd. Shanghai Branch (hereinafter referred to as Huaxia Shanghai Branch) and the executed person Shanghai Standard Metal Products Co., Ltd. and Shanghai Zhizhan Real Estate Co., Ltd. (hereinafter referred to as Zhizhan Company) In the course of the contract dispute between Chen Shiqiang and others, the outsider Zhu Xi expressed a written objection to the court and requested the lifting of the seizure of the house of Room XXX, No. XXX, Cao'an Road, Jiading District, Shanghai (hereinafter referred to as the disputed house).

The court found that the house was registered under the name of the company, and the purpose of the house was office. On March 4, 2015, the court seized the house in accordance with the law. On June 18, 2014, the outsider and the executor Zhizhan Company signed the “Shanghai Commercial Housing Sale Contract”, stipulating that the outsider would purchase the contending house from the executor Zhizhan Company at a price of 1,376,997 yuan. On July 25, 2014, the outsider transferred 696,997 to Zhizhan Company. On September 4, the same method paid 680,000 yuan, and the entire payment was paid. On June 18, 2014, the outsider and Zhizhan Company signed the “House Transfer Document” to clarify that Zhizhan Company handed over the house to the outsider.

[referee summary]

According to the provisions of Article 28 of the Supreme People's Court on the Provisions of the People's Court on the Implementation of Objections and Reconsiderations, "In the execution of monetary claims, the buyer disputes the immovable property registered in the name of the executed person, which meets the following If the circumstances and its rights can be excluded, the people's court shall support: (1) a legally valid written sale contract has been signed before the people's court seized it; (2) the real property has been legally possessed before the people's court seized it; The full price shall be paid, or part of the price shall be paid in accordance with the contract and the remaining price shall be delivered in accordance with the requirements of the people's court; (4) the transfer registration shall not be processed due to the buyer's own reasons. In this case, although the disputed house is still registered under the name of the executor Zhizhan Company, the outsider has signed a house sale contract with Zhizhan Company before the court seized the disputed house, and provided the bank transfer certificate and house transfer book. The documents show that they paid the entire house payment before the court seized the house, and actually occupied and used the house for dispute, and the non-case outsiders did not register for the transfer. In summary, the objection to the outsider should be supported. Suspension (2015) Pu Zhizi No. 23457 case for the execution of the house of Room XXX, No. XXX, Cao'an Road, Jiading District, Shanghai.

Problem lawyer analysis

Articles 28 and 29 of the Supreme People's Court's Provisions of the Supreme People's Court on Several Issues Concerning the Implementation of Objections and Reconsiderations by the People's Courts, respectively, have the right to expect general interest and the right to expect of housing consumers. The conditions for excluding execution are specified. Article 28 applies to a wider range of applications, and is applicable to real estate registered under the name of the person being executed. Article 29 is only for the commodity house registered under the name of the developer, and is the right to expect consumer rights. Special protection. Therefore, the payment requirement of Article 29, paragraph 3, is lower than the payment requirement of Article 28, paragraph 3, and only needs to be paid more than 50% of the contract price, not the full amount. However, Article 29, paragraph 2, further limits the scope of the outsider and limits the execution of the subject to the only housing of the outsider. In the reference case, the use of the house is office, so the special protection of the right to expect of the consumer's property rights is not applicable, but the provisions of Article 28 shall apply.

In order to reduce the legal risk as much as possible, it is recommended that the purchaser, in accordance with the provisions of Article 30 of the Supreme People's Court on the Provisions of the People's Court on the Implementation of Objections and Reconciliation Issues, shall, in the event of the signing of the real estate sales contract, complete the advance notice registration to exclude execution. There is no need to be limited by other conditions.