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MindMap Gallery Changes in property rights
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Changes in property rights
Mind map of changes in property rights. Changes in property rights refer to the establishment, change, transfer and elimination of property rights in general. The model of changes in property rights is only for changes in property rights caused by legal acts, and is different from property rights changes that are not based on legal acts. Changes in rights are irrelevant.
Edited at 2023-07-27 20:26:27
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Changes in property rights
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- Outline
Changes in property rights
type
meaning
Changes in property rights refer to the establishment, change, transfer and elimination of property rights in general.
Whether the acquisition of property rights depends on the original rights of others
original acquisition
The property rights are not acquired based on the existing rights of others. In addition, the acquisition in good faith is based on the premise that there is no right to dispose of it. It is an acquisition of ownership based on legal provisions and is an original acquisition in nature.
acquired by inheritance
Acquire property rights based on the existing rights of others
Transferred Succession Acquisition
Obtain another person’s original property rights from another person
creation inheritance acquisition
Establishing another property right in another person's property
reason
Based on civil legal actions
meaning
In principle, if a contract established based on party autonomy causes changes in property rights, publicity such as registration or delivery shall be required for its effectiveness.
Classification
Real estate registration
formula
Change of property rights of real estate = right to dispose + valid civil legal actions (sale, sale, mortgage, etc.) + registration
The basic principle
Changes in real estate property rights will be effective if registered in accordance with the law; without registration, they will not be effective as real rights.
If the parties sign a valid contract but fail to register it, the property rights will not be effective, but the validity of the contract will not be affected.
The ownership of the house is transferred from the time of registration; the right to use the construction land, the right to live, and the right to mortgage the real estate are established from the time of registration.
General provisions
Real estate unified registration
Real estate registration shall be handled by the registration agency where the real estate is located. The state implements a unified registration system for real estate. The scope of unified registration, registration agencies and registration methods shall be stipulated by laws and administrative regulations.
Real estate register and title certificate
The real estate registration book is the basis for the ownership and content of property rights and is managed by the registration agency. The real estate ownership certificate is the proof that the obligee enjoys the property rights of the real estate.
Changes in real estate property rights take effect when they are recorded in the real estate register, not when the ownership certificate is issued.
If the real estate ownership certificate is inconsistent with the real estate registration book, the real estate registration book shall prevail, unless there is definite evidence to prove that the real estate registration book is incorrect.
Exceptions
The land contract management right is established when the land contract management right contract takes effect. If the land contract management right holder exchanges or transfers the land contract management right, it becomes effective when the contract takes effect; without registration, it may not fight against a bona fide third party.
Land management rights with a transfer period of more than five years are established when the transfer contract takes effect. Without registration, they may not fight against bona fide third parties.
An easement is established when the easement contract takes effect. Without registration, it cannot be used against bona fide third parties.
If the creditor transfers the principal claim, the transferee obtains security rights and other accessory rights related to the claim. The transferee's acquisition of accessory rights will not be affected by the fact that the accessory rights have not gone through transfer registration procedures or have not transferred possession.
concrete type
Change registration
First time registration
First registration of real estate rights
Change registration
Registration when registration items change
Transfer Register
When property rights are transferred due to sale, exchange, donation, inheritance, etc., you can apply for transfer registration
Cancellation of registration
When the real estate is lost due to loss, abandonment by the right holder, expropriation according to law, etc., deregistration can be processed.
Correction registration
If the right holder or interested party believes that the matters recorded in the real estate registration book are wrong, they may apply for correction of registration
If the right holder recorded in the real estate registration book agrees in writing to the correction or there is evidence to prove that the registration is indeed wrong, the registration agency shall make the correction.
Objection registration
If the right holder recorded in the real estate registration book does not agree to the correction, the interested party may apply for objection registration
If the registration agency registers the objection and the applicant does not file a lawsuit within 15 days from the date of registration of the objection, the registration of the objection will become invalid.
If the objection registration is improper and causes damage to the right holder, the right holder may request damages from the applicant.
Notice registration
When parties sign a house purchase and sale agreement or other real estate property rights agreement, in order to ensure the realization of property rights in the future, they may apply to the registration agency for advance notice registration according to the agreement.
The purpose of notice registration is to ensure that the parties realize their property rights in the future. The conditions for rights registration are not met at the time of registration.
Pre-sale of real estate such as commercial buildings
Real estate sales and mortgages
Mortgage rights are set up with pre-purchased commercial housing
Other situations stipulated in laws and administrative regulations
After the notice is registered, if the real estate is disposed of without the consent of the right holder of the notice registration, it will not have any real rights effect.
After the advance notice is registered, if the creditor's rights are extinguished or if no application for registration is made within 90 days from the date when real estate registration is possible, the advance notice registration will become invalid.
Registration effect
Overview
Real estate registration is a way of publicizing changes in real estate property rights based on legal acts. What effect does this publicity have and what are the legal consequences of the lack of such publicity? The Civil Code adopts a combination of registration effectiveness and registration confrontation. Among them, the doctrine of registration validity is the principle, and the doctrine of registration confrontation is the exception.
Registration takes effect
meaning
The doctrine of registration validity means that registration is a requirement for the validity of changes in real estate property rights. Without registration, the property rights will not change.
Applicable situations
Changes in ownership of real estate due to sales, donations, exchanges, etc.
Assignment and transfer of construction land use rights
Establishment of right of residence
Establishment of real estate mortgage rights
register confrontation
meaning
Registration confrontation doctrine means that changes in property rights can be effective even without registration, but they cannot be used against bona fide third parties.
Applicable situations
If land contract management rights are exchanged or transferred, without registration, no action may be taken against a bona fide third party.
When an easement is established, it cannot be used against a bona fide third party without registration.
Registration error liability
party
If the party concerned provides false materials to apply for registration and causes damage to others, he shall be liable for compensation.
Registration agency
If a registration error causes damage to others, the registration agency shall be liable for compensation. After the registration agency compensates, it may recover compensation from the person who caused the registration error.
Delivery of chattels
formula
Change of property rights of animals = right to dispose + valid civil legal actions (sales, sales, etc.) + completion of delivery
meaning
Delivery is the act of transferring possession of the subject matter
Ordinary movable property
The establishment and transfer of property rights in animals shall become effective upon delivery.
The parties have signed a valid contract. If the price is only paid but not delivered, the property rights will not be effective.
special movable property
If the property rights of special movables such as motor vehicles change since the time of delivery, they may not be used against bona fide third parties without registration.
If the transferor transfers the ownership of a ship, aircraft, motor vehicle, etc., and the transferee has paid the consideration and obtained possession, although it has not been registered, if the transferor's creditor claims that he is a "bona fide third party", the claim will not be supported.
Exceptions
The establishment of chattel mortgage (including chattel floating charge) does not require delivery
Realistic delivery
Put the transferred property under the actual control of the transferee
concept delivery
Easy payment
meaning
Before the establishment and transfer of property rights in movables, if the obligee has already taken possession of the movables, the property rights shall take effect when the civil legal act takes effect.
Model
rent to own
Instruct delivery
meaning
Before the establishment and transfer of property rights in a movable, if a third party takes possession of the movable, the person obligated to deliver the property may transfer the right to request the third party to return the original property in lieu of delivery, also known as "transfer of the right to claim return". Changes in property rights occur when the agreement between the person and the transferee regarding the transfer of the right to request the return of the original property takes effect.
Model
rent first then sell
Change of possession
meaning
When the property rights of a movable are transferred, and both parties agree that the transferor will continue to possess the movable property, the property rights shall take effect when the agreement takes effect.
Model
sell first then rent
Notice
Modification of possession only applies to the transfer of property rights in movables, not to the establishment of property rights. It is different from simple delivery and delivery by instruction. Therefore, the delivery of pledge of movables or the delivery of movables obtained in good faith cannot be delivered through modification of possession.
Not based on civil legal actions
meaning
Changes in property rights that are not based on party autonomy but are based on factual acts, events, public law reasons, etc. do not require statutory publicity as a requirement for its effectiveness.
Classification
Effective document
Basic rules
If a property right is established, changed, transferred or eliminated due to a legal document of a people's court, an arbitration institution or an expropriation decision of the people's government, it shall take effect when the legal document or expropriation decision takes effect.
Scope of application
The people's government's decision to expropriate
The "legal documents" of people's courts and arbitration institutions specifically include
Awards, judgments, and mediation documents that change the original property rights relationships made by people's courts and arbitration institutions in cases such as the division of jointly owned real estate or chattels and that are effective in accordance with the law
The auction transaction ruling, sale transaction ruling and debt-settlement ruling issued by the people's court in the execution procedure
inherit
Basic rules
If property rights are acquired due to inheritance, they will take effect from the beginning of the inheritance.
Scope of application
Legal inheritance, testamentary inheritance, etc.
factual behavior
Basic rules
If property rights are established or eliminated due to legal construction or demolition of houses or other factual acts, they shall become effective when the factual acts are completed.
Scope of application
Factual acts such as legal construction and demolition of houses
Special provisions
real estate
Disposal of real property rights enjoyed in accordance with the above provisions requires registration in accordance with legal provisions. Without registration, there will be no real right effect.
legislative model
meaning
The model of property rights changes is only for changes in property rights caused by legal acts and has nothing to do with changes in property rights not based on legal acts.
legislative model
creditorism
Requirements for changes in property rights
Right to dispose + debt contract
meaning
Only the expression of intention of the parties without other requirements is sufficient to produce legislative examples of changes in property rights. The French Civil Code adopts this model.
Features
Its characteristic is that it does not distinguish between the expression of intention for the occurrence of claims and the expression of intention for changes in property rights. In other words, only the purchase, donation, exchange, mortgage and other creditor's rights contracts established by the parties can cause changes in property rights.
property formalism
Requirements for changes in property rights
Right to dispose + debt contract + property rights act
meaning
When a change in property rights occurs, in addition to the creditor's rights contract for the purpose of creating a creditor-debt relationship, there must also be an expression of intention to change the property rights and the legal form of registration or delivery to produce the effect of the change in property rights, German Civil Code. adopt this mode
Features
Its characteristic is to distinguish between creditor's rights behavior and property rights behavior, and believes that property rights behavior is independent and without cause.
Eclecticism
Requirements for changes in property rights
Right to dispose + debt contract + publicity
meaning
The eclectic approach is between creditor's rights formalism and property rights formalism. It stipulates that in addition to creditor's rights, changes in property rights also require registration or delivery. The Swiss Civil Code adopts this model.
Features
Its characteristic is that it does not recognize property rights and believes that the reason for changes in property rights is the combination of creditor's rights and registration or delivery.
my country model
Popular view
At present, the more consistent view is to adopt the eclecticism, that is, creditor's rights contracts such as sales, donation, and pledge are not enough to cause changes in property rights. Registration or delivery must be completed for the effect of changes in property rights to occur. In exceptional cases, the creditor's rights doctrine is adopted. That is, property rights are established when the contract comes into effect
principle of distinction
Registration or delivery is the performance of the contract. Failure to register or deliver does not affect the validity of the creditor's rights contract. If the creditor's rights contract is not established, invalid, or revoked, the effect of a change in property rights cannot occur. This will change the validity of the creditor's rights contract. The rule for distinguishing the effects of changes in property rights is often called the "principle of distinction"