It is not enough to have an agreement with a third party to pay off debts with houses.

It is not enough to have an agreement with a third party to pay off debts with houses.

Paying debts with things is also called paying debts with things. That is, the two sides reached an agreement and the creditor received the "thing", thus writing off the original debt. What needs to be reminded here is that it is not enough to have an agreement to pay debts in kind. We must attach importance to the transfer of property rights. Through a case selected by the Supreme Court, can the third party's compulsory execution of the house be ruled out?

CaseNo.: No.3787 Civil Judgment of Intermediate People's Court of Nantong City, Jiangsu Province (2020) Su 06 Minzhong.

Case summary:

He Moufei and Wang are friends. On 20 10, Wang borrowed 9 million yuan from a water conservancy development company (He Moufei holds 95% of the company's shares and serves as its legal representative). After the loan occurred, Wang was unable to repay all the loans, so he used his two properties located at Room 80 1 and Room 90 1 of Building F in Hedong District, Sanya City to offset the loan of RMB 654.38+0.324 million. The property right certificate of Room 90 1 was changed on 20 12. Why should I register? Room 80 1 has not gone through the transfer registration procedures, and the owner of the house is still registered as the king (He Moufei has no two restrictions on purchases).

Later, due to other cases, Wang was applied to the court for compulsory execution by a third creditor. During the execution, the Tongzhou District Court of Nantong City entrusted the suburban court of Sanya City to seal up Room 80 1 registered under the name of Wang. On April 4th, 20 19, Tongzhou District Court of Nantong made an enforcement ruling and decided to auction Room 80 1. He Moufei, an outsider, objected that he was the actual owner of the house, so he asked the court to stop execution. The court ruled that his request was rejected. He Moufei refused to accept and filed a lawsuit of execution objection.

Nantong Tongzhou District Court held that:

Article 28 of "Provisions of the Supreme People's Court on Several Issues Concerning People's Courts Handling Cases of Reconsideration of Objection to Execution" stipulates that "the people's court shall support the execution of monetary creditor's rights, if the buyer raises objections to the real estate registered under the name of the person subjected to execution, and his rights can be ruled out under the following circumstances:

(a) the people's court has signed a legal and effective written sales contract before the seizure.

(2) The real estate has been legally occupied before it is sealed up by the people's court.

(3) Pay all or part of the price as agreed in the contract, and deliver the remaining price to the people's court for execution as required.

(4) The transfer registration is not handled due to the buyer's own reasons ". Accordingly, He Moufei requested to exclude the execution of Room 80 1 in this case.

The reasons given by the court are as follows:

1. According to the commodity house purchase restriction policy of Sanya, He Moufei does not meet the conditions for purchasing a second house, and cannot ask the seller, namely Wang, to handle the transfer registration of the house in Room 80 1, so he does not enjoy the right to expect the property right of the house in Room 80 1.

The real estate purchase restriction policy is not a law or regulation. If the policy changes, He Moufei has the right to expect the property right of Room 80 1.

2. He Moufei claimed that he bought the house in Room 80 1 in order to pay off debts with the house, that is, he signed a house purchase contract not to acquire the ownership of the house, but to realize the repayment of loan claims. According to the principle of equality of creditor's rights, it has no priority protection value compared with other creditor's rights.

The creditor's right to pay off debts with the house takes precedence.

3. The user name recorded on the receipt of the property management fee and cable TV fee for room 80/kloc-0 provided by He Moufei is Wang, so it is impossible to determine why the above fees were paid by a certain airplane, and He Moufei claims that the basis of the house he actually occupies is insufficient.

4. He Moufei failed to prove that he had submitted the house transfer registration to the house registration authority. His failure to handle the house transfer registration was a house purchase restriction policy, and his no-fault opinion could not be established.

You can't blame He Moufei for not handling the transfer of property rights. Knowing that you can't pass the purchase restriction, it is unnecessary and harsh to submit the house transfer documents to prove that you have applied.

Three points:

1. Paying debts with houses ≠ Priority:

In the final analysis, the mortgage contract is the repayment of debt, not the priority of the mortgagee. Therefore, compared with the civil rights and interests executed in another case, the law does not provide priority protection for them. In addition, in line with the principle of publicity and good faith, the house is not in the name of the creditor for a day. For ordinary people, including other creditors, based on the retrieval data of the government property rights registration center, the creditor is not considered as the property owner.

2. To pay off debts with houses, it is necessary to transfer ownership:

If only the repayment of the substitute is satisfactory, and there is no actual transfer of the property right, then the original debt will not be eliminated and the purpose of debt repayment will not be fully realized. Although there is no explicit agreement on paying debts in kind in our country's laws, please refer to the Provisions of the Supreme People's Court on Several Issues concerning Execution and Reconciliation. Article 8 After the execution of the settlement agreement, the people's court shall close the case. As can be seen, it is emphasized that the settlement agreement must be fulfilled before the debt is eliminated.

3. Paying debts with houses should be implemented:

If the parties can't handle the transfer registration due to the purchase restriction policy after signing the house-to-house debt repayment agreement, then they should try their best to let the other party sell the house, mortgage the house or obtain the residual value of the house and pay back the money with real money; No longer, sign a tripartite agreement and a holding agreement, arrange a trusted third party to issue a certificate, and transfer the ownership as a formal property owner first.