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This case is a house-buying case represented by real estate lawyer Jin Shuangquan in 215, which was tried by Dongxiaokou Court. The house is located in Tiantong Zhongyuan, and Lu Zhicheng, a judge of Dongxiaokou of Changping Court, the investor signed a loan contract with a famous person, which is actually an indicator for purchasing affordable housing. The court accepted Jin's view that there was a house-buying relationship between the two parties under the name of borrowing, not lending, and ruled that the famous person assisted in transferring the house to the investor.

1. Basic facts:

1. Daughter's public house was demolished and her father sold it on her behalf.

Plaintiff Li Xiaohua and defendant Zhou Qiang didn't know each other. In 26, Li Xiaohua was demolished in Chongwen District, Beijing, and Li Xiaohua got the demolition money and one purchase index, while his father's house was demolished and two indexes were obtained. Li Xiaohua has been abroad for a long time, and all the house demolition matters in Li Xiaohua are handled by his father. His father and Li Xiaohua negotiated to sell the index of Li Xiaohua. Therefore, Li Xiaohua's father went to the chain agency in Tiantongyuan area to register and sell the purchase index. After the introduction of Zhou Qiang and Li Xiaohua's father, the two sides agreed that the price of the purchase index was 5, yuan. On the date of booking the house selection, * * * will go to the demolition department to select the house and sign the contract.

On the day of house selection, the house purchase contract was signed, and according to the requirements of the demolition department and the developer, the person who must have the house purchase index was selected. Li Xiaohua made a special trip back to Beijing to choose a house, and Li Xiaohua chose a two-bedroom apartment located in Zhongtongyuan, Tiantongyuan, and Beijing Tianqi Real Estate Development Co., Ltd. signed the "Pre-sale Contract for Commercial Houses in Beijing" with the house price of 271,15.5 yuan, and Li Xiaohua paid the above amount with Zhou Qiang's bank card. After choosing a house, Li Xiaohua left first because he saw a friend, and all the formalities were handled by his father Li Delin.

2. Signing a loan contract in name, but actually buying affordable housing in name

Li Delin and Zhou Qiang should have signed a house sales contract, but all parties thought that the house belonged to affordable housing and could not be bought or sold, so they signed a loan contract. Even if Zhou Qiang lent the house to Li Xiaohua, Li Xiaohua would pay the house to Zhou Qiang if it didn't pay. The contents of the Loan Contract signed by both parties are as follows: "Party B (Li Xiaohua) borrowed RMB 321,15.5 from Party A (Zhou Qiang) for the need of housing purchase. Both parties agree as follows: 1. The loan period is from December 26th, 26 to December 31st, 28. 2. If Party B can't repay all the money within the agreed loan period, Party B will lend the purchased house to Party A. 3. During the period when Party B lends the house to Party A, the house is only for Zhou Qiang's own residence, and shall not be transferred, traded or rented. Otherwise, all legal responsibilities arising therefrom shall be borne by Zhou Qiang himself, and Party B Li Xiaohua shall not be responsible. 4. The temporary residence period is December 31, 28. After this period, the ownership of the house will be owned by Party A..

description: the purchase price is 271,15.5 yuan, and the purchase target price is 5, yuan, so both parties write the loan amount as 321,15.5 yuan.

the deed tax, public maintenance fund and other expenses paid at the time of purchase are actually paid by Zhou Qiang. After the delivery of the house, Zhou Qiang renovated the house and went through the check-in procedures. After Li Xiaohua obtained the real estate license, the affordable housing could not be listed and traded for less than five years, so it could not be transferred to Zhou Qiang's name. In 214, after the expiration of five years, Li Xiaohua asked for assistance in the transfer, and Li Xiaohua proposed to share it equally according to the present value of the house. The two sides have been controversial since then.

II. Proceedings

1. Li Xiaohua sued Zhou Qiang for returning the original property

In October p>214, the plaintiff Li Xiaohua sued the Dongxiaokou court. The original indictment is as follows: On December 26, 26, the plaintiff signed the Commodity House Pre-sale Contract with the developer to purchase the house located at No.1 Tiantong Zhongyuan in Dongxiaokou Town. In April 214, the plaintiff had obtained the property right certificate of the house involved. Because the defendant had no room to live in, the plaintiff's father lent the house involved to the defendant for temporary residence. In April 214, the plaintiff asked the defendant to vacate the house within a time limit, and the defendant has not vacated the house so far. The plaintiff is the sole legal owner of the house involved, and his property rights are inviolable. The defendant's behavior infringes on the plaintiff's legitimate rights and interests, and requests the court to adjudge the defendant to vacate Tiantong Zhongyuan # house in Dongxiaokou Town, Changping District.

2. Jin Shuangquan, a real estate lawyer, filed a counterclaim on behalf of the defendant Zhou Qiang, asking for assistance in the transfer.

After Zhou Qiang received the indictment, he found Jin's lawyer through Anju Real Estate Lawyer Network, and Jin's lawyer immediately organized a team to conduct research. The team lawyer had three opinions: First, Jin's opinion was that both parties bought a house under the name, and the house was now ready for transfer, so he should file a counterclaim to ask for assistance in the transfer; Second, some lawyers' opinions are that affordable housing belongs to affordable housing, which is given to a specific security object. It cannot be bought or sold, so counterclaims should be invalid and compensation for losses should be demanded; Third, most lawyers believe that the title of the contract signed by the two parties is "loan contract", and the content is loan, only when the loan is not up to date. Zhou Qiang sued for transfer irregularities according to the loan contract. After repeated communication and risk notification with Zhou Qiang, the counterclaim for transfer was finally determined.

3. filing a case is full of twists and turns, whether it is a loan contract dispute or an affordable housing transfer contract dispute or a contract dispute.

The counterclaim was not filed smoothly. Judge Lu Zhicheng of Dongxiaokou Court held that Li Xiaohua's cause of action was to return the original property, which was a dispute over the protection of property rights, while Zhou Qiang's request was to perform the contract and assist in the transfer of ownership. The cause of action was a contract dispute, which could not be consolidated. Therefore, the counterclaim was not accepted. Lawyer Hou Jin redrafted the indictment and prepared to file another case, but the filing office believed that the two sides signed a loan contract. Zhou Qiang should sue for repayment first. Only when the court decides Li Xiaohua to repay the loan and Li Xiaohua fails to perform the judgment, it will be treated as an auction house in the execution procedure. At this point, the case was deadlocked. Later, Lawyer Jin went to the presiding judge to exchange views. Although the cause of action was determined to be problematic, it was based on the same thing after all. After repeated research with the presiding judge and leaders, he finally agreed to counterclaim and join the trial.

4. Lawyer Jin expressed his agency opinion on behalf of defendant Zhou Qiang and submitted a formal counterclaim

(1) The house was acquired as a result of demolition, not as a result of application and lottery. Belong to the interests of the plaintiff's demolition, the plaintiff will transfer it to the defendant, and the defendant will pay the consideration. Both parties' intentions are true and do not violate the mandatory provisions of the law.

(2) The loan agreement signed by both parties is actually an agreement to buy a house under the name. The parties mistakenly believe that the agreement to buy a house under the pretext of violating state regulations, so they use the Loan Contract to replace the agreement to buy a house under the pretext of fictitious borrowing. According to the contract, the ownership of the house belongs to all. The two sides also have no behavior and intention to repay, and the loan contract is essentially a contract to buy a house under the name.

(3) All the house payment and related expenses were paid by the defendant, which was actually purchased by the defendant. At present, the defendant holds the original documents of all the procedures for purchasing the house, including the purchase contract invoice, receipt, deed tax invoice, stamp duty invoice and other expenses, and the defendant paid the price qualification transfer fee of 5, yuan. It can be seen that the defendant is the actual buyer.

(4) Although the defendant did not authorize his father to sign in writing, he cooperated with the house selection and payment, and did not raise any objection. The defendant accepted the house in 26, moved in directly, and occupied the house as the owner of the house for 9 years. The plaintiff has not raised any objection during this period, indicating that the plaintiff recognizes that the owner of the house is the defendant. And cooperate with the defendant to sign commercial housing sales contracts, choose houses and move in. The plaintiff showed by his behavior that he recognized his father's qualification to sell the house on his behalf.

5. Li Xiaohua doesn't agree to the transfer, and there is no legal relationship between the two parties to buy a house under the pretext.

(1) There is no fact that the plaintiff and the defendant bought a house under the name, nor did they sign the loan contract or the agreement to buy a house under the name mentioned by the defendant; Li Xiaohua said that she didn't know about the Loan Contract, and she didn't entrust her father to sign it. However, Li Xiaohua also said that he recognized the fact that Zhou Qiang borrowed money to buy the disputed house. On December 26th, 26, she went through the formalities of choosing a house, signing a house purchase contract, paying the house purchase price, etc., but she didn't see the Loan Contract and didn't know the fact that her father "mortgaged" the house to Zhou Qiang.

(2) The plaintiff himself did not borrow more than 32, yuan from the defendant, nor did he receive the so-called transfer fee of 5, yuan from the defendant;

(3) Before April, 214, the defendant never urged the plaintiff to handle the property transfer procedures of the house involved;

(4) The plaintiff himself was often abroad and returned to Shanghai after 21, and the developer never informed him to get the real estate license. The defendant moved into the house involved, and the plaintiff believed that the defendant borrowed money from the plaintiff's father. The plaintiff didn't know the agreement signed by his father and had never seen it.

6. Plaintiff Li Xiaohua sued for the invalidity of the loan contract on the grounds that his father had no right to represent his signature.

During the trial of this case, the plaintiff Li Xiaohua filed another lawsuit in Chaoyang Court, with Li Xiaohua as the plaintiff and the fathers of Zhou Qiang and Li Xiaohua as the defendants, claiming that Li Xiaohua's father signed the loan agreement without the authorization of Li Xiaohua, and the contract was invalid. Li Xiaohua thinks that the loan agreement should be cancelled first. Later, Li Xiaohua applied to Changping District Court to suspend the trial of this case. Lawyer Jin, representing defendant Zhou Qiang, put forward a written opinion that whether the loan agreement signed by both parties is valid or not does not affect the relationship between the two parties to buy a house under the name. The loan agreement only proves that Zhou Qiang paid for the house, not that there is a loan relationship between the two parties. Therefore, the trial of the two cases has nothing to do with it, and there is no need to suspend execution. The court accepted Mr. Jin's point of view, and the case continued to be heard. However, Chaoyang Court decided that both parties had an interest in the case of Chaoyang Court during the trial in Changping Court, and Chaoyang Court suspended the trial ex officio.

III. Views of the Court

The Dongxiaokou Court of Changping District Court holds that the focus of the dispute between the original defendants in this case is whether the legal relationship between the original defendants is to borrow money to buy a house or to buy a house under the name. Although Zhou Qiang and Li Xiaohua's father signed the Loan Contract, the relationship between the two parties should be to buy a house under the name for the following four reasons:

1. The loan amount is 5, yuan more than the purchase price specified in the purchase contract. This extra amount is inconsistent with the purpose of borrowing, and there is no need to borrow. Moreover, Li Xiaohua did not return it afterwards, and there is no evidence to prove that he once requested to return it. Therefore, from the loan amount, it is doubtful whether the loan intention is true;

2. Except for the house purchase price, other taxes and expenses for house purchase, including decoration expenses, are paid by Zhou Qiang, and the formalities for house purchase are kept in Zhou Qiang, which is not in line with the common sense if Li Xiaohua is the property owner;

3. If this case is about buying a house in Li Xiaohua, it should know the source of the money, the repayment time and the process, and Li Xiaohua personally participated in the whole process of buying a house, but now he says that he doesn't know the existence of the Loan Contract, which is unconvincing;

4. According to the recorded conversation submitted by Zhou Qiang, the original defendant has been discussing the distribution of the value-added benefits of the house. If the relationship between the two parties does not exist under the guise of buying a house, it is only a simple loan, then it is not necessary for Li Xiaohua to discuss and share the value-added benefits with Zhou Qiang.

To sum up, and in combination with the fact that Zhou Qiang has been living in the disputed house, our court concluded that there was an agreement between the original defendants to buy a house under the pretext.

regarding the validity of the agreement between the original defendant and the defendant to buy a house by borrowing the name, because the house in dispute is not the purchase index obtained through the lottery procedure, and the original purchase contract of the house in dispute was signed before April 11, 28, which belongs to the "old economic applicable house" according to the relevant policies of Beijing, and now the house has met the conditions for listing and trading, so the oral agreement between the two parties does not violate the relevant policies, the interests of the public, and the law. Now Zhou Qiang meets the requirements of buying a house in Beijing in the name of his family, so Zhou Qiang asked Li Xiaohua to transfer the disputed house to his name, and our court supported it. Li Xiaohua's claim for Zhou Qiang to move out of the house in dispute could not counter Zhou Qiang's counterclaim, and our court did not support Li Xiaohua's claim. In summary, it is judged that the defendant Li Xiaohua transferred the ownership of the houseNo. Tiantong Zhongyuan, Changping District, Beijing to the plaintiff Zhou Qiang's name within seven days from the effective date of this judgment. Now the plaintiff has filed an appeal, and the court of second instance is in the process of hearing.

IV. Comments by Lawyer Jin, a real estate lawyer

Every dispute about buying a house under the guise of name has a painful experience for both parties. Generally speaking, both parties had a very good relationship. The seller tried every means to promote the success of the transaction, and the buyer once recognized the seller as a godmother. However, due to the rapid development of housing prices in recent ten years, both sides have experienced great psychological tests, but in the end, due to serious psychological imbalance, disputes or even lawsuits broke out. The promises made by both parties are generally verbal, and there is a loan agreement as in this case, and there are also individual sales agreements, but most of them are verbal.

In practice, when the court hears the case, it generally infers the true meaning of both parties at that time through the behavior at that time. The court finds that buying a house under the pretext is generally the buyer's choice of house, occupancy, decoration and payment of the house price and various expenses; It is also recognized by the court that it is not to buy a house under the name. Generally, the seller handles the relevant procedures, pays the house price and decorates it, and then the seller delivers it to the buyer. This situation is not regarded as buying a house under the name. It is not the buyer who can get the house completely if he is identified as buying a house under the name, but also depends on whether the buyer has the qualification to buy a house now. It also depends on the buyer's litigation request. Some buyers don't have lawyers or lawyers' inexperience, and they don't know that the litigation request should be for transfer, but for compensation for losses. In this case, the house can only be evaluated, and the seller will compensate the buyer for the appreciation part according to the size of the responsibility. There are also some sellers who have no lawyers or lawyers' inexperience, and have not been confirmed by property rights, and directly sue Tengfang, which is generally not supported by the court. Judging from the summary of the disputes over the master's buying a house under the name of lawyer Jin, the choice of the cause of action is very important. Sometimes, due to the wrong choice of the cause of action, the court ruled that he lost the case, but the parties did not know that the court did not handle it fairly. In fact, he did not know how to fight the lawsuit. In the process of litigation, we must sum up the court's thinking on this kind of case, and we must follow the court's thinking when going to court, otherwise it is very likely to lose the case without knowing why.

I hope my answer is helpful to you. Please accept it if you are satisfied!