Recently, Lawyer Gao Ying, a partner of Gaopeng Law Firm, and Lawyer Jiang Hua, a team of lawyers, have represented two cases of opposition to execution by outsiders, which have been upheld by the Beijing High Court for retrial. The court has determined that the buyer's rights to the property are sufficient to exclude execution, and the 5-year road of safeguarding the buyer's rights has finally been settled.

Basic facts of the case

The developer and A sign a "Loan Agreement", A pays 20000 yuan for the purchase of the house, and the developer issues a corresponding receipt. Afterwards, A will transfer the purchased house to B, and B will sign a "Subscription Agreement" with the developer. The payer in the receipt issued by the developer to A will be changed to B. B has made up the down payment for the purchase of the house in accordance with the provisions of the "Subscription Agreement" and plans to handle the commercial loan procedures after the signing of the "Commercial Housing Pre sale Contract".

After the developer delivered the house to B, B carried out decoration and moved in. Afterwards, B repeatedly urged the developer to sign the "Commercial Housing Sales Contract", but it was unsuccessful. In the process of continuous negotiations with the developer, B learned that the "Loan Agreement" signed with A was due to the developer not obtaining the pre-sale license when selling the house. After obtaining the pre-sale license, the developer was unable to sign the "Commercial Housing Purchase and Sale Contract" with B due to the developer mortgaging the construction in progress to a certain trust company, and had to sign the "Subscription Agreement" first. After the mortgage of the ongoing construction project, the property involved in the case was applied for court lockdown by the applicant, resulting in the failure to sign the "Commercial Housing Purchase and Sale Contract", resulting in B's failure to handle commercial loan procedures, and the actual payment for the purchase of the house was less than 50% of the total house price.

The first instance judge of both the objection to execution and the objection to execution lawsuit in this case believes that B only signed the "Subscription Agreement" with the developer and did not sign the officially recorded "Commercial Housing Sales Contract", and paid less than 50% of the purchase price, which does not meet the conditions of Article 29 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Handling of Objections to Execution and Reconsideration Cases by the People's Court". Therefore, B's objection to execution request is rejected.

Focus of controversy

The focus of controversy in this case is whether the three conditions stipulated in Article 29 of the "Provisions on Execution Objections and Reconsiderations" are met, namely "(1) a legally valid written sales contract has been signed before the people's court seals it down; (2) the purchased commercial housing is for residential purposes and there are no other residential properties under the buyer's name; (3) the paid price exceeds 50% of the total contract price

The court determines that the objection to execution is valid, terminates the execution, and the house is unsealed

Lawyers Gao Ying and Jiang Hua comprehensively discuss the background of the agreement signed between the parties and the developer, the performance of the agreement, and the payment of funds. They argue that the developer and A formed a purchase agreement when they signed the "Loan Agreement". The "Subscription Agreement" is a continuation of the "Loan Agreement", and B has paid the down payment for the purchase of the house according to the provisions of the "Subscription Agreement", and there is no fault in the signing of the agreement and payment of funds, Therefore, B's rights to the property in question are sufficient to exclude enforcement.

The lawyer's claim was fully accepted by the second instance and retrial judges of the Objection to Execution lawsuit. The second instance judge ruled that B's rights to the property in question were sufficient to exclude compulsory execution and stop the execution of the property in question. The retrial judge ruled to uphold the second instance judgment. At this point, the house lockdown that has troubled homebuyers for many years has finally been lifted, and this case has finally come to a successful conclusion. Homebuyers can smoothly apply for the real estate certificate and live in the house they have purchased with peace of mind.