【线上云德】疫情期间律师说（六十）|二手房买卖常见法律问题分析（一）

01二手房买卖中涉及的优先购买权

（1）按份共有人的优先购买权。根据《物权法》第101条，按份共有人可以转让其享有的共有的不动产或动产份额。其他共有人在同等条件下享有优先购买的权利。

1.Pre-emptive right of co-owners by shares.According to article 101 of the property law, a co-owner may assign his share of a common realty or chattel. The other co-owners shall have the right of first refusal under the same conditions.

此处“同等条件下”是指其他共有人就购买该份额所给出的价格等条件与欲购买该份额的非共有人相同。即当其他共有人与此外的其他人出价相同时，其他共有人有优先购买的权利。法律规定其他共有人优先购买权．是为了简化共有关系，防止因外人的介入而使共有人内部关系趋于复杂。此处优先购买权是共有人相对于非共有人而言的，在共有人之间并无优先的问题，当数个共有人均欲行使其优先购买权时，应由出卖人自行决定。此种优先购买权仅具有债的效力，不得对抗善意第三人。而且共有人有相反的约定的，依其约定。

Here "under the same conditions" means that the price and other conditions given by the other co-owners for the purchase of the share are the same as those given by the non-co-owners for the purchase of the share. That is, when the other co-owners bid the same as the other co-owners, the other co-owners have the right of first refusal. The law provides that other co-owners have the right of first refusal. It is to simplify the common relationship and prevent the internal relationship of the common person from becoming more complicated due to the intervention of outsiders. Preemption right here is joint owners relative to non-joint owners, there is no priority among joint owners, when several joint owners want to exercise their preemption right, should be decided by the seller. Such right of preemption only has the effect of debt, not against bona fide third party. And if the co-owners have an agreement to the contrary, such agreement shall prevail.

实践中常见的还有夫妻共同共有房屋的买卖中，经常会出现共有人称房屋买卖合同未经其同意，主张房屋买卖合同无效。目前，我国的房屋所有权证对于共有人的记载不全面，虽属家庭共有房产，但大多仅登记在一人名下，签订合同时，共有人并未签字，就容易发生共有人明知房屋买卖仍主张合同无效的情况。

Common in practice still have the sale that husband and wife jointly have a house, often can appear in jointly say building sale contract without its consent, advocate building sale contract is invalid. At present, our country building all authority card is right the record of common person is not comprehensive, although belong to a family to have house property jointly, but register is in name of a person only mostly, when signing a contract, common person did not sign, easy happening common person knows that building business still maintains contract invalid circumstance.

买房人在购买房屋时，一定要核实询问是否属于夫妻或者家庭共有房屋，对于上述房屋一定要其配偶或者共有人签字或者出具书面意见，以免在履行过程中出现纠纷。买房人能够证明其“有理由相信其为夫妻双方共同意思表示的”，据此主张继续履行的，存在以下情形之一时，法院可以支持买受人要求继续履行合同的诉讼请求，判令出卖人及其配偶共同办理过户手续：1、买受人举证证明出卖方配偶知道或应当知道买卖事宜而未表示反对的;2、买受人已经按照合同约定支付价款,并占有使用房屋,出卖方配偶未在合理期间提出异议的;3、出卖方配偶有主动配合腾退、交付房屋等参与履行或接受履行行为的。

When buying a house, the person that buy a house, must verify to inquire whether belong to husband and wife or family to have a house jointly, to afore-mentioned building must its spouse or common person signs or issue written opinion, lest appear dispute in fulfilling a process. Buyers can prove its "there is reason to believe that it is both sides of husband and wife common intention", on the basis of claims continue to perform, there is one of the following circumstances, the court may require the buyer support continue to perform the contract claims, ordered the seller and their spouses to transfer formalities: 1, the buyer proof to prove the seller's spouse knows or should know business matters and did not oppose; 2. The buyer has paid the price in accordance with the contract, and has occupied the premises, and the spouse of the seller fails to raise objection within a reasonable period; 3. The seller's spouse has taken the initiative to cooperate with the vacating and returning, delivering the house, etc. to participate in the performance or accept the performance.

（2）承租人的优先购买权。《合同法》第 230 条，出租人出卖租赁房屋的，应当在出卖之前的合理期限内通知承租人，承租人享有以同等条件优先购买的权利。优先购买权的实现需要具备下列条件：

2.The lessee's right of pre-emption. Article 230 of the contract law, where the lessor sells the leased house, it shall notify the lessee within a reasonable period of time prior to the sale, and the lessee shall have the right of first refusal under the same conditions. The realization of pre-emption right requires the following conditions:

1、在租赁合同的存续期间。

2、在同等的条件下购买。在非同等条件下，承租人不能享有优先购买权。同等条件是指承租人与其他购买人在买卖条件上等同，包括买卖的价格、付款的期限和方式等等。

3、必须在一定期限内行使。如果出租人通知承租人将要出卖租赁的房屋，并提出了一定的期限，而承租人在合理期限内没有购买的意思表示，优先购买权丧失。这说明承租人并不想购买该房屋，也就没有保护的必要了。

A.During the duration of the lease contract.

B.Buy under the same conditions. Under non - equal condition, tenant cannot enjoy preemptive right. The same condition is to point to tenant and other buy person are equal on sale condition, include the price of sale, the time limit that pays and means to wait.

C. It must be exercised within a certain period of time. If the lessor informs the lessee to sell the leased building, and puts forward a certain period of time, and the lessee has no intention to buy within a reasonable period of time, the preemptive right is lost. This shows that the tenant does not want to buy the house, there is no need to protect.

实践中不少二手房在出售时是处于出租状态的，虽然本案经审理认为涉案房屋的出售行为并未侵害承租人的优先购买权，但是为了避免以后交房发生纠纷，买房人在购房时还是要认真核查租赁合同期限、主体等信息，要求租户出具放弃优先购买权的声明书等材料。

Practice many secondhand the room when the sale is in a state of rent, although the trial to the case that involved the sale of housing does not infringe on the right of first refusal of the lessee, but in order to avoid making a room after a dispute, buyers to purchase and to seriously check the lease term, subject information, such as requirements issued by the tenant right of first refusal disclaimers books and other materials.

02买卖不破租赁的规定及例外

我国法律有明确的规定：《合同法》第229条规定：“租赁物在租赁期间发生所有权变动的，不影响租赁合同的效力”，最高人民法院《关于贯彻执行〈中华人民共和国民法通则〉若干问题的意见(试行)》第119条第二款规定：“私有房屋在租赁期内，因买卖、赠与或者继承发生房屋产权转移的，原租赁合同对承租人和新房主继续有效”。

Our country law has clear provisions: "contract law" the 229th regulation: the change of ownership of the lease item in the do not affect the validity of the leasing contract ", the Supreme People's Court "about carrying out the < general principles of the civil law of the People's Republic of China > the opinions of the several issues (try out)" : the second paragraph of article 119 of the "private houses within the leasing period, for sale, donation or inheritance of building property right transfer, the original leasing contract to the lessee and the new owner continue to be valid.

一般情况下买卖是不能破租赁的，但是实践中也是存在例外情况的。根据法律的规定，在下列情况下对买卖不破租赁原因有所限制：

In general, the sale can not break the lease, but there are exceptions in practice. In accordance with the provisions of the law, there are restrictions on the reasons for not breaking the lease:

（一）买卖不破租赁原则不适应于动产租赁

（二）在不动产抵押权之上设定的租赁关系的限制适用

（三）在人民法院查封的不动产之上设定的租赁关系的限制适用

（四）破产财产处理过程中的限制适用

A.The principle of non-breaking lease is not applicable to the lease of movable property

B.The restrictions on the lease relationship established on the mortgage of immovable property shall apply

C.The restrictions on the leasing relationship established on the realty seized by the people's court shall apply

D.The application of restrictions in the process of handling bankruptcy property

03无证房产的买卖问题。

房屋买卖双方签订的无证房屋买卖合同，该合同不会因房产证的缺失而一律判决无效。但若因为不能取得房产证，导致买方不能按约定时间办理贷款手续的，卖方应承担违约责任。《中华人民共和国城市房地产管理法》第三十八条第六项规定了“未依法登记领取权属证书”的房屋不得转让。但强制性规定分为效力性强制性规定和管理性强制性规定，而根据《最高人民法院关于适用〈中华人民共和国合同法〉若干问题的解释（二）》第十四条，只有违反效力性强制性规定的才属无效。而《中华人民共和国城市房地产管理法》第三十八条第六项在性质上应属于管理型强制性规定，不应作为认定房屋买卖合同无效的法律依据。房屋买卖合同签订后，出卖人以没有房产证由拒绝继续履行合同，买房人诉至法院要求继续履行，法院可以依职权追加开发商为第三人，判令其协助办证，房屋买卖合同继续履行。

The contract that building buyer and seller signs without card building sale, this contract won't because of the lack of house property card and decide without exception invalid. However, if the buyer fails to handle the loan procedures according to the agreed time due to the inability to obtain the property ownership certificate, the seller shall bear the liability for breach of contract. Article 38, paragraph 6, of the law of the People's Republic of China on the administration of urban real estate stipulates that houses that have not been registered for the ownership certificate shall not be transferred. However, mandatory provisions are divided into mandatory provisions of validity and mandatory provisions of administration. According to article 14 of the supreme people's court's interpretation of several issues concerning the application of contract law of the People's Republic of China (ii), only those who violate the mandatory provisions of validity are invalid. However, item 6 of article 38 of the urban real estate administration law of the People's Republic of China shall be a mandatory regulation of administration in nature, and shall not be used as a legal basis to determine the invalidity of the house sales contract. After building sale contract is signed, sell a person to have no house property card by refuse to continue to perform a contract, the person that buy a house appeals to the court to ask to continue to perform, the court can add development business to be the third person according to authority, order its assist handle card, building sale contract continues to perform.

04房屋抵押权存续期间，出卖人（抵押人）未经抵押权人同意签订房屋买卖合同的效力及履行。

房屋抵押权存续期间，出卖人（抵押人）未经抵押权人同意转让抵押房屋的，不影响房屋买卖合同的效力。出卖人在合同约定的履行期限届满时仍未履行消灭抵押权的义务，致使买受人无法办理房屋所有权转移登记，买受人可以请求解除合同。买受人同意并能够代为清偿债务消灭抵押权的，抵押权人应当协助办理抵押注销登记，出卖人应当在抵押权消灭后为买受人办理房屋所有权转移登记手续。主要法律依据见《物权法》第191条第2款规定：“抵押期间，抵押人未经抵押权人同意，不得转让抵押财产，但受让人代为清偿债务消灭抵押权的除外。”

During the existence of the right of mortgage, if the seller (the mortgagor) transfers the mortgaged house without the consent of the mortgagee, the validity of the house sale contract shall not be affected. Sell a person to still did not fulfil the obligation that extinguishs hypothec when the performance deadline that agrees in the contract expires, cause vender cannot deal with building droit to transfer to register, vender can ask to remove a contract. Where the buyer agrees to and is able to extinguishes the mortgage right for the repayment of the debt, the mortgagee shall assist in handling the mortgage cancellation registration, and the seller shall go through the formalities of registering the transfer of the house ownership for the buyer after the elimination of the mortgage right. The main legal basis is seen "property law" the 2nd paragraph of the 191’s article stipulates: "during mortgage, the mortgagor is not allowed to transfer mortgaged property without the consent of the mortgagee, but the assignee extinguishes mortgage right for debt repayment except.

此外，户口迁移问题在房屋买卖合同纠纷案件中较为常见，法院对于此类问题的处理原则一般为：买受人起诉请求出卖人迁出户籍的，不属于人民法院民事案件的受理范围。但是，对于房屋买卖合同中约定出卖人应迁出户籍的，当事人一方不履行合同义务或者履行合同义务不符合约定的，应当承担支付违约金或者赔偿损失等违约责任。

In addition, registered permanent residence migrates a problem to be in case of dispute of house sale contract more common, the principle that the court deals with to this kind of problem is general: the venner sues a request to sell a person to move out of registered permanent residence, do not belong to the accepted limits of people court civil case. However, for the housing sales contract agreed that the seller should move out of the household registration, the party does not perform the obligations of the contract or perform the obligations of the contract does not conform to the agreement, should bear the liquidated damages or compensation for losses and other breach of contract liability.