A typical case of one room and two sales

Reference case: (20 13) Xiangmin Zichu No.943.

First, the basic information of the parties

Plaintiff: Ye (second buyer, but actually in possession)

Defendant: Huo (the owner)? Zeng Zhijie (the first buyer)

Second, sort out the basic case facts.

On May 20th, 20 1 1, Huo entrusted Zeng Zhijie to sell the house and notarized the power of attorney.

On March 3, 20 12, Zeng Zhijie and Huo signed the House Lease Agreement, agreeing to lease the house to Zeng Zhijie. The lease period is from March 12 to March 13, 2022, and the rent is 1000 yuan per month. Zhijie didn't pay the rent to Huo as agreed in the contract, nor did he actually rent it out.

On March 20th, 20 12, Huo and Zeng Zhijie signed a house purchase and sales contract for the house, with a total house price of 900,000 yuan. On March 20, 20 12, Zeng Zhijie paid the house purchase price of RMB 3 1 000.00 yuan (paid on the same day), paid off the loan of RMB 250,000.00 yuan from Bank of Communications Guihua Sub-branch (not paid as agreed), and paid the house transfer fee of about RMB 50,000.00 yuan. Huo promised to cooperate with Zeng Zhijie to handle the transfer formalities at the Real Estate Bureau before July 20, 20 12. After the property was transferred to the name of Zeng Zhijie, Zeng Zhijie paid the remaining 290,000 yuan to Huo. (Not paid as agreed)

? On March 3rd, 2065438, defendant Huo entrusted Sun to sign a real estate sales contract with plaintiff Ye, and the transfer amount of the house was 6,543,800 yuan. The plaintiff paid a deposit of 30,000 yuan on the day of signing the agreement, 330,000 yuan after the bank withdrew its capital and put pressure on it, and the balance at the time of transfer was 640,000 yuan. The plaintiff actually occupied and used the above-mentioned house in late March of 20 13. Since then, the property fee has also been paid by the plaintiff.

On March 26th, 20 13, Sun, the plaintiff, was entrusted by Huo to go through the transfer formalities of the above-mentioned house in Guilin Real Estate Administration Bureau, and paid off the deed tax and personal income tax. On the same day, Guilin Real Estate Management Bureau accepted the transfer application and issued a receipt after confirming that all the materials were complete and valid.

On April 20 13, Zeng Zhijie learned that Huo had sold the house to Ye, so he sued Huo in our hospital on April 45438+April of that month and applied to seal up the house under Huo's name. According to the application, our hospital made a notice of assistance in execution on the same day and took litigation preservation measures against the house according to law.

On April 4th, 20 13, the plaintiff received a notice from Guilin Real Estate Management Bureau, informing her that the property that had accepted the application for change of registration was sealed up by the court. So I appealed to the court.

In August of 20 13, Zeng Zhijie moved into the house and changed the door lock. Ye and Zeng Zhijie had a dispute over this and reported it to the relevant public security organs, which failed to handle it on the grounds that there was a civil dispute between them.

Third, the case needs to be clear.

(1) Does the house lease agreement between Huo and Zeng Zhijie have the preemptive right?

1. The lease contract has not been actually fulfilled.

The lease contract was signed on March 3, 20 12. Since then, Huo has not delivered the house to Zeng Zhijie, and Zeng Zhijie has not paid the rent to Huo.

The real purpose of this lease contract is not to rent the house.

On the 20th day of the month when the lease contract was signed, Zeng Zhijie and Huo signed a house sales contract for the house. It can be seen that the lease contract was signed by Zeng Zhijie and Huo in order to prevent Huo from "selling one room and two houses" when the ownership transfer registration of the disputed house in this case was temporarily suspended, and its real purpose was not to rent the house.

3. The conditions are different

The total house price of the house sales contract of Ye, the plaintiff, was 6,543,800 yuan, and that of Zeng Zhijie was 900,000 yuan. In this case, the conditions for the two people to buy a house are not the same. Therefore, in this case, Zeng Zhijie cannot claim the preemptive right of the house based on the house lease contract, thus claiming the ownership of the house.

(2) possession.

1, Zeng Zhijie does not constitute legal preemption.

Zeng Zhijie holds the lease contract of the house, but judging from the facts ascertained in this case, Zeng Zhijie did not actually rent the house after signing the lease contract, but moved in during the renovation of the house in August, 20 13, so his possession of the house does not constitute legal preemption.

2. After the plaintiff signed the house purchase contract, he began to move in and began to decorate.

The plaintiff actually occupied and used the above-mentioned house in late March of 20 13. Since then, the property fee has also been paid by the plaintiff.

(3) Validity of the two contracts: Both contracts are valid.

It is a typical' one room and two sales'. No matter the first buyer Zeng Zhijie or the second buyer Ye, the rights obtained based on the sales contract are creditor's rights, that is, the seller is required to transfer the ownership of the house to his creditor's rights. Creditor's rights are neither exclusive nor preferential, and they are equal. Therefore, the buyer may not object to the validity of the contract between the seller and other buyers on the grounds that his creditor's rights are established first, so both the house sales contract signed by the plaintiff Ye and the house sales contract signed by the defendant Zeng Zhijie are prior. Therefore, judging from the available evidence, the two contracts in this case were reached voluntarily by both parties, and the form and content did not violate the mandatory provisions of laws and regulations, so they should all be legal and effective contracts.

(4) The validity of a contract does not mean the performance of the contract.

? According to Article 110 of the Contract Law of People's Republic of China (PRC), if one party fails to perform non-monetary debts, the other party may demand performance, except for those that cannot be performed legally or in fact.

Because the ownership of the same house can only be registered in the name of one buyer, Ye and Zeng Zhijie's requirements for Huo to perform the contract cannot be fulfilled at the same time, and only one contract can be actually performed, but the party who fails to perform the contract can claim rights separately.

Fourth, the focus of the dispute in this case

? Under the premise that both the plaintiff Ye and the defendant Zeng Zhijie asked Huo to actually perform, which contract is more legal and reasonable to perform, which protects the legitimate rights and interests of the parties to a greater extent.

According to the provisions of Article 10 of the Supreme People's Court's Interpretation on Applicable Legal Issues in the Trial of Disputes over State-owned Land Use Rights Contracts, the land use right owner, as the transferor, has entered into multiple transfer contracts for the transfer of the same land use right. If the transfer contracts are valid and the transferee requests to perform the contracts, it shall be dealt with separately according to the following circumstances: (1) If the transferee who has gone through the registration procedures for the change of land use rights requests the transferor to perform the contractual obligations such as land delivery, it shall be supported; (2) If the transferee who has legally occupied the land for investment and development first requests the transferor to fulfill the contractual obligations such as land use right change registration, it shall be supported; (three) the transferee who has paid the land transfer fee in advance requests the transferor to fulfill the contractual obligations such as land delivery and land use right change registration, and shall support it; (four) the contract has not been performed, and the assignee of the prior contract established according to law requests to perform the contract, which shall be supported.

In this case, the subject matter of the sale is the house, but both the house and the land are real estate in nature, and there are many similarities between them. Therefore, this case can also refer to the spirit of the above explanation, comprehensively consider whether the two parties have registered the transfer of ownership of the house, whether they actually legally occupy the house, the amount and order of the buyer's actual payment, and the order in which the contract was established, and combine the actual situation of this case to determine it fairly and reasonably.

Combined with this case, the performance of the house sales contract between Ye and Huo is more fair and reasonable. The specific reasons are as follows:

First, Ye's performance of the contract is obviously higher than Zeng Zhijie's.

After signing the house sales contract, the plaintiff Ye has paid off the house price of 6,543,800 yuan and paid the relevant taxes and fees of the house, which shows that he has fulfilled all the contractual obligations and produced many positive contract effects. However, Zeng Zhijie has only paid 3 1 10,000 yuan, and has not paid relevant taxes. Therefore, Ye's contract performance is obviously higher than Zeng Zhijie's in terms of maintaining normal transactions and reducing contracts.

Second, the prior possession of Ye is legal, but Zeng Zhijie does not constitute legal prior possession.

Judging from the facts ascertained in this case, the plaintiff Ye signed a house sales contract with Huo in March 20 13, went through the check-in formalities in that month, paid the property management fee of the house, and began to decorate the house the following month. It can be seen that Ye legally moved into the house in March 20 13, while Zeng Zhijie moved into the house during the renovation of the plaintiff in August 20 13, and changed the door lock. Its possession of the house does not constitute a legal priority possession. Therefore, from the perspective of prior legal possession, the housing sales contract with priority application of Ye is more in line with relevant laws and regulations.

Third, although Zeng Zhijie signed a house purchase and sale contract and a house lease agreement before Ye and Huo, the lease contract does not have the effect of purchase restriction (see the first part of the third part above).

Third, Huo has fulfilled his duty of review, and Ye has fulfilled his necessary duty of review in the process of buying a house.

Huo has not verified the situation for more than one year since he signed the house purchase and sales contract with Huo on March 20th, 20th13rd to April, 2065438 1 1 3rd; Moreover, after signing the house sales contract with Huo, he only paid the down payment of 3 10000 yuan, and then failed to fulfill the obligation of returning the bank loan of 250,000 yuan as agreed in the contract, and the payment obligation should be fulfilled before the registration of house ownership transfer. However, he did not negotiate with Huo to continue to perform the house sales contract when the defendant Huo did not register the transfer of house ownership. In addition, in the case of Zeng Zhijie v. Huo and the house sales contract accepted by our hospital, the defendant Huo was not required to assist in handling the registration procedures of house ownership transfer in this case in the original litigation request, and it was later changed.

Ye, the plaintiff, has fulfilled the necessary review obligation in the process of buying a house, and has made preparations for the transfer of the house after signing the house sales contract. He has applied to the real estate department for the registration of the transfer of the ownership of the house, and the real estate department has accepted his application. Therefore, from this point of view, it is fair to focus on Ye's housing sales contract.