What should I pay attention to when buying a second-hand house? The new provisions of the draft civil code have come.

Is it difficult to wait for the auction? Then you can only buy a second-hand house. A new usufructuary right word "residence right" has been added in the real right compilation of the draft civil code. What is "right of residence"? What's the impact on us? Let's get to know each other.

"Buying a house for the aged" is basically a hot topic. In the implementation, some old people will inevitably worry: "What if the house is mortgaged and I am not allowed to live?" The draft civil code submitted to the Third Session of the 13th National People's Congress for deliberation on May 24th may dispel this concern of the elderly, because the draft adds an important chapter-residence right to the usufructuary right. As long as the old people sign the right of residence contract, the right of residence is protected by law.

This provision should also be paid attention to by citizens who buy second-hand houses in the future, because when buying a house, they should not only inquire about the ownership of the house, judicial seizure, mortgage establishment and so on. Also pay attention to whether the house is registered with the right of residence.

There may be a new version of "old people's children compete with nannies for housing"

As a highlight of the draft of the civil code on property rights, the draft stipulates the right of residence in the special chapter on usufructuary rights, clarifying that the obligee has the right to occupy and use the usufructuary rights of other people's houses in accordance with the agreement to meet the needs of residence and life.

To establish the right of residence, the parties concerned shall conclude a right of residence contract in written form and apply to the registration authority for registration of the right of residence. The right of residence is established when registering.

The draft makes it clear that the right of residence cannot be transferred or inherited. Houses with the right of residence shall not be rented, unless otherwise agreed by the parties. The right of residence expires or the obligee dies, and the right of residence is extinguished.

According to these regulations, there may be another version of the case of "elderly children and nannies competing for real estate" that is common in life. Yang, a law professor at Hunan Technology and Business University, explained by setting a special scene: an old man was taken care of by a nanny for a long time. Before the death of the old man, he hoped that the nanny could continue to live in the house through the contract or will, but the children of the old man may have opinions on this, so it may be that the children and the nanny are in court. This situation is not uncommon. "With the right of residence, the elderly can go to the registration agency to register the right of residence for the nanny, and neither the children of the elderly nor the owner of the house can drive away the nanny."

The introduction of the right of residence released the system dividend.

Residence right is a new type of property right and a typical property right. It is a great progress to be written into the draft civil code. Yuan Aiping, a member of the Chinese People's Political Consultative Conference and the chief partner of Hunan Qiyuan Law Firm, believes that the greatest value and significance of the right of residence lies in releasing the system dividend.

He gave a concrete example: an old man in Changsha owns a house worth millions, his pension is not high, his children are not around, he has to take medicine to see a doctor, and his life may be very tight. The emergence of the right of residence can solve this dilemma. Old people can sell or mortgage their houses, but they need to set up the right of residence-let them live for free in their lifetime. In this way, the elderly can get 6.5438+0 million yuan and live in the house with peace of mind. "The right of residence has expanded the living space of an elderly person, and may also open up the industrial space of the old-age care industry and real estate in the future, and even give birth to a new old-age care model. For example, an old-age care institution or a house real estate transaction institution can purchase at the current valuation and obtain ownership, but the right of residence still belongs to the original owner, and the house will be sold after the death of the original owner. "

Yang believes that the provisions of the right of residence are a great benefit to the tenants of public rental housing and low-rent housing.

He said: "The tenants of public rental housing and low-rent housing belong to low-income people. They protect their residential rights and interests through lease contracts, which will inevitably lead to a feeling of instability. If they protect their rights and interests through the right of residence, they will feel more secure. "

Yuan Aiping also believes that the emergence of the right of residence is of great significance for solving the housing problem of low-income groups in society. As a new right, the right of residence naturally needs to be improved in social practice. "In particular, the system related to government guarantee needs to be introduced as soon as possible," Yuan Aiping said.

After buying a second-hand house, you have to inquire about the right of residence.

How will the increase of residence right in the draft civil code affect the right to use the house? What changes will it bring to housing transactions?

Qiu, director of Beijing Law Firm, said that the usufructuary right of the newly added residence right actually separates the residence right from the ownership right, and the free disposal of the house with the residence right is restricted, so there may be obstacles in the house transaction process, because even if the house can be transferred, if the residence time agreed in the contract continues, the rights and interests of the obligee still need to be protected. As a property buyer, if the house is used for self-occupation, such a house is generally not considered.

To establish the right of residence, the owner of the house and the owner of the right of residence must first make a written agreement on the conditions, requirements and duration of residence, and then apply to the registration agency for registration of the right of residence. There is no restriction on the identity of the right of residence, which can be parents, spouses, children or even nannies. In principle, the right of residence should be established free of charge. After the registration is completed, the right of residence is established, and the obligee enjoys the possession and use right of the house according to the contract, and can always live in it for the agreed time. However, it should be noted that the right of income and disposition of the house still belongs to the owner of the house. Although the right of residence does not restrict the owner of the house from selling or mortgaging the house, if the house has the right of residence, even if the owner of the house transfers the house, the party enjoying the right of residence can still continue to live in accordance with the time limit agreed in the contract, so the circulation value of the house with the right of residence will inevitably decrease. Luo Qiyu, a partner lawyer of Hunan jinzhou area Law Firm, reminded buyers that when buying and selling second-hand houses in the future, they should not only inquire about the ownership of houses, judicial seizure, mortgage establishment and so on. Also pay attention to whether the house is registered for residence.

However, Ming Bin, deputy general manager of Hunan New Environment Real Estate Brokerage Chain Co., Ltd., holds different views on this.

"The establishment of the right of residence is basically to protect the housing needs of family members. If there is a transfer demand, we must first solve the housing needs of existing residents. This is a security right of a specific group. From the perspective of the overall market, the impact on housing transactions is limited. " Ming Bin said.

Can a house with an account be mortgaged as usual?

Can a mortgaged house register the right of residence of others? Can a house registered with the right of residence of others be mortgaged as usual?

Xie Hongfei, secretary-general of the Civil Code Compilation Working Group of China Academy of Social Sciences, said that according to the Property Law, who is protected depends on the time when the right is established. It is feasible to have the right of residence registration before mortgaging the house. However, there is a problem: if the mortgagor can't repay the bank's debts, the bank must also consider the rights of the obligee when repossessing the house, so the bank may be more cautious when facing this kind of property. If there is a mortgage before the right of residence is registered, the right of residence is lower than that of the mortgagor.

If you transfer the house to your children and set up the right of residence for yourself, does the right of residence guarantee lifelong residence? If the child rents out the house, will the tenant kick him out?

Lawyer Guo Ren, a global partner of Beijing Yingke (Shanghai) Law Firm, thinks so. The term of residence right can be freely set by both parties, can be set as a fixed term, or can be set as life. However, it should be noted that the right of abode will terminate upon the expiration of the right of abode or the death of the right holder. In addition, houses with the right of residence shall not be rented in principle unless otherwise agreed by the parties. In addition, the chapter on usufructuary right in the Civil Code stipulates the right of residence, that is to say, the right holder of residence enjoys the effect of property right on the subject house, lease is a creditor's right relationship, and property right takes precedence over creditor's right. Therefore, the lessee has no right to interfere with the exercise of rights by the right holder.

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