Before signing
First of all, buyers must have a more comprehensive understanding of sellers. 1. Check the ID of the property owner. 2. Is the title certificate owned by one owner or several owners? If there are several * * *, do you agree with them all?
When selling a property, someone must agree to all the property rights of the house. When signing a real estate sales contract, all of them should be present. If it is impossible to be present under special circumstances, a notarized power of attorney and an agent's identity certificate shall be issued, which shall be signed by the entrusted agent.
Second, the necessary understanding of the property to be traded.
1. Is the property certificate provided by selling the house true?
2. What is the real estate area?
3. What is the purpose of the property? Office or residence, or something else
4. Is the property ruled, sealed up or restricted in other ways by judicial organs or administrative organs according to law?
5. Has the property been mortgaged? According to the "People's Republic of China (PRC) Guarantee Law", during the mortgage period, if the mortgagor transfers the registered mortgaged property, it shall notify the mortgagee and inform the transferee that the transferred property has been mortgaged; If the mortgagor fails to notify the mortgagee or assignee, the transfer is invalid. Here, if the property has been mortgaged, then the mortgagor is the seller, and the mortgagee is the third person who mortgages the property, that is, someone, company or bank; The transferee is the property purchaser. This provision means that the seller has mortgaged the property to a third party, and did not inform the third party or the buyer that the property has been mortgaged when transferring the property, so the transfer behavior is invalid. Only when the mortgage registration is cancelled or the mortgagee agrees can the property be bought and sold.
6. Is the property rented? If the house has been rented, the seller needs to provide a statement issued by the lessee of the house giving up the preemptive right under the same conditions. At the same time, buyers should also check whether the lease contract signed by the seller and lessee of the property is registered for the record. According to the provisions of the Measures for the Transfer of Real Estate in Wuhan, if the leased real estate is transferred and both parties to the lease have gone through the registration and filing of the lease contract according to law, the lease contract shall be continued to be performed by the real estate transferee. This provision means that the seller transfers the leased real estate, registers the lease contract signed for the property, and the buyer continues to perform the lease contract. That is to say: if property buyers buy property for investment, this kind of property with lease is more suitable; If the property purchased by buyers is self-occupied, this kind of property with registered lease contract will have a greater impact on buyers.
When signing
First, the proof materials that need to be prepared. When buying a property, the buyer may be one person or several people. In either case, the buyer needs to prepare the following materials:
1, original and photocopy of ID card or passport;
2. The minor's household registration book or birth certificate;
3. If there is an entrusted agent, a notarized power of attorney and an agent's ID card shall be provided. If the property buyer is a foreigner, the notarized materials provided are in foreign languages and need to be translated by a foreign translation company. Some materials provided by foreigners, such as power of attorney, consent, etc., must be notarized and certified by the following domestic and foreign institutions before they are valid:
1) Hong Kong: notarized by a Hong Kong lawyer authorized by the Ministry of Justice;
2) Macau: China Legal Service (Macau) Company;
3) Taiwan Province Province: After being notarized by the Taiwan Province Provincial District Court, SEF will send the copy to Wuhan Notary Association, and the parties will check the original and stamp it:
4) Abroad: notarized by the local notary office and certified by the foreign embassies and consulates of China.
Second, look at the agreed content in the contract. Although the xx Real Estate Stocking House Sales Contract used in some second-hand housing transactions is a normative document jointly formulated by the xx Municipal Bureau of Housing and Land Resources and the xx Municipal Administration for Industry and Commerce, there are many places that need to be filled in, so we must be cautious and pay special attention to the following points (if the text is not comprehensive enough, it can be explained in the supplementary terms):
1. Is the amount of the house payment written clearly?
2. What is the mode of payment? Is it a one-time payment or an installment payment? When is each payment? Does this conflict with the buyers' own capital flow? Exempt the seller from the liability for breach of contract for overdue payment.
3. If the buyer needs mortgage loan, is it indicated in the contract? (What buyers need to be reminded here is that they must first understand the operating procedures and regulations of the loan bank, and must not make their loan amount exceed the prescribed amount of the loan bank, which will lead to the failure of loan review. At present, most banks in Wuhan can borrow 70%);
4. When will the buyer and seller hand over the house? What other items are there when handing over the house (furniture, electrical appliances and other equipment are handed over to the buyers together with the real estate, and a detailed list is required in the annex to the contract);
5. Who will bear the property management fees, water, electricity, gas and communication fees before and after delivery? Generally, it shall be borne by the seller before delivery and by the buyer after delivery;
6. When will the risk responsibility of real estate be transferred to the buyers? The "Measures for the Transfer of Real Estate in xx City" stipulates that the risk liability of real estate shall be transferred from the transferor to the transferee (that is, the buyer) from the date of transfer of real estate rights; However, if both parties to the transfer agree to transfer the risk liability from the date of transfer of possession of real estate (delivery date), such agreement shall prevail. Most property buyers will choose to use it to transfer risk responsibility from the date of property transfer;
7. Is there an agreement on the liability for breach of contract? Is there a clear agreement on the amount of liquidated damages?
8. When will the real estate sales contract come into effect? This is very important for the buyer to perform the contract well. )
1) If there is no special agreement between both parties to the transaction, this contract shall come into effect after being signed by both parties.
2) Both parties to the transaction may agree on additional conditions for the validity of the contract, which shall take effect upon the establishment of the contract.
3) Both parties to the transaction may agree on additional clauses on the validity of the contract, and the contract with additional clauses shall take effect upon the expiration of the term.
4) If one or both parties are foreigners, both parties to the transaction should notarize when signing the real estate sales contract, and then the contract will take effect.
Generally speaking, the risk of buying and selling second-hand houses will be higher and there will be many legal problems. The reason is that second-hand houses are not sold directly by developers, but by people who buy developers' houses. For various reasons, they need to sell their houses again. Some second-hand houses are properties acquired by the owner because of inheritance, debt repayment or gift, and now they need to be realized. Some second-hand houses are bought and sold because the original owners' marriage has changed or they have settled abroad. Because the reasons for selling second-hand houses are different, and the sources and backgrounds of second-hand houses are different, it is easier to encounter legal obstacles when dealing with second-hand houses.
One of the precautions: buying and selling second-hand houses in the demolition area.
Some houses are suitable for living, and some houses facing the street are suitable for doing business, such as catering or small department stores or other operations. Some investors are eager to buy gable houses facing the street in downtown or busy areas, with the purpose of either buying them or renting them out after renovation to recover their investment. Or after buying it, according to the market situation, after the transformation, run a flavor restaurant or specialty store. Because the house faces the street and investors consider management, the price trend is higher when talking about housing prices. There was no major dispute between buyers and sellers at the time of purchase, and the sale of second-hand houses was successfully completed. Who knows that the new owner just started to operate, he received a notice of demolition, and all the streets were among the demolition. Because a developer has been allowed to develop and build luxury residential areas and office buildings here, the developer is willing to give certain economic compensation to the demolished people according to the relevant national demolition regulations. These economic compensations should still apply to ordinary houses in old communities, but not to people who buy houses facing the street from old owners at high prices for investment and then rebuild them. Moreover, the developer will never pay more for the renovation and buy more compensation for the street-facing houses.
This needs to remind people who want to invest in the old city to buy a house. Before buying a house, they must know whether the area is on the demolition list, whether there will be developers developing projects here, and whether the country will list the area as an old city reconstruction in the near future or long term. Otherwise, blind investment will not only fail to make profits, but also make investors suffer losses economically.
Note 2: Sale of second-hand houses with bank mortgage.
After choosing several houses, a buyer finally decided to buy a second-hand house in a built community. The greening of the community has been completed, and all kinds of facilities in the community are complete. After contact, a customer in the community wanted to sell the house that he had lived in for more than a year because he wanted to settle abroad. After a comprehensive investigation, the buyer and the seller decided to clinch a deal. Second-hand housing owners told buyers that because developers have not set up large property rights, the small property rights certificate of the houses they own naturally has not been set up. When he bought a house, he took the initiative to show the sales contract signed with the developer, so the two sides signed a second-hand house sales contract. The seller was very happy to get the house payment, and the buyer lived in the long-awaited modern new house as he wished. However, the good times did not last long. In a few days, the developer sent someone to urge the new owner to tell him that the original owner was in arrears with the bank mortgage loan. As a joint guarantor, the developer has the responsibility to urge the original owner to repay the bank, otherwise, the developer will recover the property. At this time, second-hand housing buyers wake up like a dream. The second-hand house he bought is a property with debts. As long as the original owner has not paid off the bank loan, the developer will take back the property at any time despite the purchase contract.
When purchasing such second-hand houses, buyers should fully understand all the conditions of the real estate, including reviewing the original purchase contract, reviewing the real estate license and land certificate and the "five certificates" of the original developer. Second-hand housing owners applying for bank mortgage should review the original loan contract. For mortgage, mortgage registration procedures should also be checked. Judging from the current situation, when most new houses are sold, banks provide mortgage loans, and the general loan period is between 10 and 20 years. During the period of 10 to 20 years, a large number of original buyers will transfer their houses with mortgages or houses with mortgages again, which will bring many problems to the second-hand housing market. How should the market face such a large number of second-hand housing sales?
The buying and selling procedures of this kind of second-hand house should be more complicated, but if handled properly, the transaction can be successfully completed without leaving legal hidden dangers. Second-hand housing buyers in the choice of this kind of second-hand housing, first of all, to clarify the legal relationship involved in second-hand housing and the current legal status. If the owner of the second-hand house has gone through the formalities of property right change with the original developer, and obtained the property right certificate and land use certificate, then the situation is relatively simple. Second-hand housing buyers only need to negotiate with the second-hand housing owners on the price of second-hand housing, and then handle the specific transfer procedures of second-hand housing. If the second-hand house owner fails to handle the property transfer formalities with the developer and still owes the bank a loan, the developer will still bear joint and several repayment responsibilities for the property owner to the mortgage bank. At this time, buyers of second-hand houses should be extra cautious. Because at this time, the legal relationship involved in second-hand housing is not only the second-hand housing owner and the second-hand housing buyer, but also the loan relationship between the second-hand housing owner and the bank, the guarantee relationship between the developer and the bank, and the guarantee and guaranteed relationship between the second-hand housing owner and the developer. Every change in legal relationship will affect another legal relationship.
Although the relationship between second-hand housing owners and banks is a loan relationship, second-hand housing owners are the main body of debt, but real estate is mortgage collateral. Once the second-hand house owner fails to repay the bank in full on time, the bank, as a creditor, can directly recover from the debtor's second-hand house owner on the one hand, and directly recover from the debtor's joint guarantor developer on the other hand. If the developer, as the guarantor, fulfilled the guarantor's responsibility and paid off the debts to the bank on behalf of the debtor-the second-hand house owner, in retrospect, the developer has the right to directly ask the debtor-the second-hand house owner to perform legal responsibilities until the house is recovered. Therefore, for second-hand housing owners, developers are possible creditors.
In this kind of second-hand housing sale, if the buyer and the seller intend to reach a deal, the buyer should first obtain the consent of the bank and the developer together with the seller. There are two ways to deal with this transaction: first, if the buyer can pay the seller in one lump sum, the procedure is relatively simple, and the second-hand house owner will pay off the mortgage loan to the bank in one lump sum and terminate the original loan contract. If there is mortgage registration, go through the mortgage cancellation procedures, then ask the developer and the bank to lift the legal relationship of joint and several guarantees in stages, and then the second-hand house owners set up the counter-guarantee legal relationship because of the developer's guarantee. Finally, the second-hand housing owners should go to the housing management and land management departments to handle the property transfer procedures with the second-hand housing buyers. Second, if the buyer can't make a one-time payment to the second-hand house owner, but adopts a bank mortgage loan, the second-hand house owner can recommend the buyer to apply for a loan from his loan bank, that is, replace the original borrower with a new buyer. Of course, to do this, we must first go through the consent and recognition of the original mortgage bank, and go through new loan procedures with the bank to terminate the original loan agreement. At the same time, it is necessary to get in touch with the developer, obtain the developer's consent, terminate the second-hand housing owner guarantee agreement, and the developer and the bank re-sign a new second-hand housing owner guarantee agreement. In this way, every link has to be repeated. The original legal relationship needs to be readjusted and the new legal relationship needs to be re-established.
Second-hand housing buyers can also choose to make mortgage loans in another bank, but doing so requires terminating the legal relationship between the original second-hand housing owner and the original borrowing bank. In other words, the second-hand house buyer needs to pay off the loan from the bank to the second-hand house owner in one lump sum, otherwise the legal relationship between the original second-hand house owner and its loan bank cannot be settled. Doing so will make the procedure more complicated, so the best way is for the second-hand housing buyer and the second-hand housing owner to reach an agreement, requiring the second-hand housing owner's mortgage bank to remain the second-hand housing buyer's bank, so the procedure will be simpler and the legal obstacles will be much less.
Therefore, investors who buy such second-hand houses must first find out whether the owner of the second-hand house has paid the full amount and obtained the property right certificate and land certificate. If it is a bank mortgage, it is necessary to find out the loan term and how many loans have not been repaid. In addition, we also need to know whether banks and developers cooperate when handling the transfer of second-hand houses. What if they don't cooperate?
Because the legal relationship of this kind of second-hand house is complicated, the owner of this kind of second-hand house can't completely decide the disposal of this kind of second-hand house. He needs to negotiate with other relevant personnel to determine how to deal with this property, so he should pay special attention when choosing and buying this second-hand house.
Note 3: Sale of second-hand houses shared by husband and wife.
According to the provisions of the Marriage Law, the * * * property jointly owned by husband and wife during the marriage relationship shall be distributed by both husband and wife when the marriage relationship is dissolved, and neither party may possess the * * * property alone. When buying and selling second-hand houses, if you are not careful, the second-hand house sales contract signed by the purchaser will be invalid because of the marriage change of the second-hand house owner, and sometimes it will cause other troubles.
Some second-hand housing owners, due to marital changes, preempted the property shared by husband and wife during the divorce proceedings and signed a housing transfer agreement with the second-hand housing purchaser at a lower or cheaper price. This situation is generally divided into two categories. One is that the real estate license has the name of husband and wife, which is easier to handle. The purchaser should ask both husband and wife to sign a house transfer agreement with him. If one of the husband and wife does not come forward to sign, the absent party shall be allowed to authorize the signatory, and such authorization shall be witnessed by a notary office or a lawyer to confirm its authenticity. The property jointly owned by husband and wife is valid only if it is stipulated in the transfer agreement signed by husband and wife, otherwise the legal procedure is not perfect and the agreement has no legal effect, and finally there will be obstacles to the transfer of property rights.
Another situation is that although the names of husband and wife are not specified in the real estate license, the owner of the second-hand house is a married person. This situation is more complicated. In view of the principle that both husband and wife enjoy the right to income, the purchaser should require the second-hand house owner and husband and wife to sign a second-hand house sales contract to show their consent to the transfer. This seems troublesome, but in fact it can avoid unnecessary risks. Otherwise, if the husband or wife of the second-hand house owner does not agree to sign the transfer agreement, she (he) will try to prevent the purchaser from handling the property transfer formalities.
If one of the husband and wife is not in China, please show the power of attorney or consent of the other party to transfer the second-hand house. If the absent party doesn't even have a power of attorney or consent, it's best to ask the signatory, of course, the party with the name of the real estate license, to issue a letter of guarantee that the property transfer is agreed by both husband and wife, and bear legal responsibility for all the consequences caused by it. This guarantee is actually a touchstone. If the signer doesn't even dare to give a guarantee, it proves that there must be something wrong, so buyers should be alert to whether to buy this second-hand house.
Note 4: * * Buying and selling second-hand houses with property rights.
In some cases, several friends, or several relatives, or brothers and sisters jointly own a property. Buyers should be more careful when they encounter such second-hand houses. Because this kind of second-hand house is shared by several people, no one has the right to dispose of the property owned by one person, regardless of whether this person personally grasps the property right certificate and land certificate. The key issue is to see whether all the people agree to transfer the second-hand house. The best way is to let the buyer meet all the people and get to know the specific situation. In the future negotiations on the transfer of second-hand houses, all * * * owners should be required to issue a power of attorney to their representatives. When signing the transfer agreement, all * * * people must sign the agreement. If some * * * personnel are unable to attend, they shall entrust their designated agents to sign. The agent can be * * * and * *, or someone else. However, the power of attorney should be a notarized or lawyer-witnessed legal document, and the original legal document should be attached to the contract as an annex to the transfer contract.
If one of the owners of * * * does not agree to the transfer, the transfer agreement is legally invalid, and anyone who replaces the signatures of other owners of * * * without authorization and notarization is legally invalid. Therefore, when buying second-hand houses with the same property rights, we must pay attention to the perfection of legal documents and never trust others' verbal promises.
Note 5: Second-hand houses that owe property management fees and other expenses are sold.
As we know, the more noble the community, the higher the property management fee of the community, and the property management fee of some senior communities reaches 2.5 US dollars or 3 US dollars per square meter per month. However, the area of high-grade houses is often large and luxurious, with an average area of more than 100 square meters, so the monthly property management fee, water and electricity fee or gas and heating fee will be relatively high, so we should pay attention to the above problems when buying second-hand houses of such high-grade houses.
When signing a contract for the sale of high-grade second-hand houses, it is necessary to clarify the charging standards and payment of property management fees, heating fees and other expenses, and it is best to know clearly when the transaction is completed, otherwise the property company will find trouble with the bill of arrears after the transaction is completed.
Note 6: Sale of second-hand houses by auction
The background of auctioning second-hand houses is complicated. In some cases, the owners of second-hand houses owe money to the bank, and the debts due are unable to be repaid, so they are sued by the bank and auctioned by the court. Some of them are used as collateral and auctioned during the mortgage period until the mortgagee realizes the mortgage right. There are also cases where second-hand house owners auction or confiscate their properties due to economic or criminal crimes.
This is often a good time to buy a second-hand house because the auction price may be ideal. However, buyers must pay attention to the fact that auction houses only auction real estate, and auction institutions will not ask about other expenses incurred by real estate. For example, property management fee, water fee, heating fee, international telephone fee and domestic long-distance telephone fee. Because the original owner has been unable to pay the above fees for various reasons, and the auctioneer is generally a creditor or a court. After the auction is over, the beneficiary will take the money and leave immediately, and no one will ask about other expenses. It is likely that the buyer of the auction house will be called by the relevant person because the property is not moving, so that the buyer of the auction house will find himself caught in a lot of inexplicable debts at once.
Therefore, investors who buy auction houses should know something about the property being auctioned and make corresponding plans before bidding. Once the bid is successful, how to face and deal with a large amount of debt. These situations should be negotiated with auction companies, creditors and property management companies, and it is best to formulate relevant legal documents.
Note 7: Sale of second-hand houses with mortgage.
According to the Measures for the Administration of Urban Real Estate Mortgage, the mortgaged real estate can be transferred or leased with the consent of the mortgagee. In other words, the mortgaged property can be transferred, but the prerequisite for the transfer is to obtain the consent of the mortgagee. On the contrary, if the mortgaged property is transferred without the consent of the mortgagee, it is legally invalid. At the same time, there are legal risks for buyers to purchase such properties by mortgage. Once the mortgagee wants to realize the mortgage, the risk of the purchaser appears. How to effectively avoid this risk? In practical cases, it is true that some people transfer the mortgaged property without the mortgagee's consent and leave after receiving the house price, but when the mortgagee wants to realize the mortgage, he knows that the mortgagor has an empty shell, which leads to more complicated legal disputes.
The risk prevention method for purchasing such second-hand houses is to go to the housing and land management department where the property is located for verification after selecting the second-hand houses to be purchased. It should be noted that the Sino-foreign joint venture real estate or second-hand house was originally an export commercial house. You should go to the municipal housing management department to check whether the real estate is mortgaged, who is the mortgagee and how long the mortgage period is. Then you should go to the mortgagee with the property owner and get the consent of the mortgagee before transferring the real estate. It is best for the purchaser to obtain the written consent document of the mortgagee. The existing Measures for the Administration of Urban Real Estate Mortgage and the Measures for the Administration of Beijing Real Estate Mortgage only emphasize that mortgaged real estate can be transferred with the consent of the mortgagee, and it is not clear whether written consent is required. However, in practice, it is best to ask the mortgagee to issue a written legal document agreeing to the transfer of the mortgaged property, which is more legally guaranteed for the purchaser. At the same time, the mortgagee should also be required to sign the transfer agreement. After the signing of the transfer agreement, the mortgagor and the mortgagee should go to the housing and land management department together with the purchaser to cancel the mortgage agreement, and then the mortgagor should go through the formalities of property right transfer together with the purchaser.
Note 8: The sale of second-hand houses with unclear property rights.
Due to various historical reasons or changes in different institutions, the original legal relationship will be adjusted. The subject of the original legal relationship will change the ownership of the real estate owned by the subject of the original legal relationship because of the evolution and change of history, and sometimes it is even unclear. For example, an original state organ is transformed into a company. Later, the company was divided into two other companies, which were reorganized and divested due to the shareholding system reform. Some of them are owned by joint-stock companies, and some are owned by limited liability companies or the tertiary industry. However, after several changes, the original property owned by the former state organs has been assigned to different companies. However, because the name of the original property unit is still the original state organ, several companies involved in the original state organ all advocate that the property of the original state organ should be owned by it. Now the company that actually owns these old properties wants to transfer these second-hand houses to new investors. Who owns these second-hand houses and who has the final disposal right? What should we do in the face of these unclear property rights?
First of all, we must clarify the legal ownership and legal relationship of these old properties. Although the name of the property unit of the old property is still the original state organ that no longer exists, after each change, there will be red-headed documents from the higher authorities, internal documents of the original state organ about the transfer of the organ to a company, the division of its property due to the division of the company, and finally the legal documents about the shareholding system reform of state-owned assets, from which we can infer which company is the real owner of the old property. Despite the adjustment, although the title certificate of the old property has not changed, the actual owner has changed, and all historical documents can prove the historical evolution of these old properties. Therefore, after clarifying these legal relationships, investors can go through the formalities of property right transfer with the actual owner of the old property on the basis of the transfer agreement, all historical documents and the certificates of the higher authorities.
In the old property right transfer agreement, the investor should ask the actual owner of the old property right to issue a letter of guarantee to ensure that the guarantor will bear all legal responsibilities when there is a ownership dispute in the process of the old property right transfer. This legally protects the legitimate rights and interests of buyers and excludes possible ownership disputes from the legal responsibilities of buyers. For some old houses with unclear legal relationship and uncertain ownership, it is suggested that buyers should not sign contracts with sellers rashly before making it clear, so as not to get into legal difficulties.
Note 9: Old real estate transactions with legal disputes
Due to various complicated economic relations in society, many real estates are in legal disputes. For example, some properties were forcibly seized by the court; Some are in the process of auction; Some are the subject of litigation; Some real estate property rights are unclear and are being confirmed in litigation; Other property will be used to pay off debts. Some properties belong to co-construction projects, which have been sold by the other party in the name of co-construction and cooperation companies before distribution by both parties, and so on.
When sellers deal with the above-mentioned houses, most of them make big concessions on the price, which is quite attractive. On the surface, it is difficult for buyers to detect the hidden secrets in these legally disputed properties, because the properties themselves cannot speak. However, once the buyer and the seller signed the transfer agreement and paid the down payment, the buyer lost the right of self-control. Buyers are often in a dilemma. Go back, if you can't get back the money you have already paid, you can't jump off a cliff clearly. It's really a dilemma.
The most important thing to buy this kind of property is the preliminary investigation, which should be comprehensive and comprehensive. Especially for large-scale second-hand housing transactions, it is necessary to investigate the seller's financial statements and examine whether there are any major lawsuits, lawsuits, long-term investments, major loans, and company equity. In the case of joint construction projects, it is necessary to review the joint construction agreement between the two parties.
The sale of second-hand houses has its own special story because of different backgrounds. Second-hand housing sales sometimes encounter good business opportunities, but there are also many risks and obstacles. With the development of the real estate market, the second-hand housing market will become bigger and bigger, and there will be more and more business opportunities for second-hand housing. As long as the second-hand housing investors grasp the business opportunities, control the important legal links, complete the perfect legal documents and make detailed legal and commercial investigations before making decisions, they can still avoid risks and successfully complete the transaction.