In the face of the double pressure of law and researchProperty lawThe complex legal relationship of the civil code, which is at the forefront, often leads to “logical breakdowns”. A mastery of core points and precision in avoiding pits are key to increasing the score。
I. Invisible threshold achieved in good faith
The system of good-faith acquisition is a “green tree” consideration of property law, but many of our fellow students are very easy to divide between “reasonable prices” and “delivery registration”. According to article 311 of the civil code, acquisition in good faith must satisfy three core elements at the same time: the assignee was in good faith at the time of the transfer of the immovable or movable property; the transfer was made for payment at a reasonable price; the registration was registered and the delivery to the assignee did not require registration。
The first is the understanding of “reasonable price”. Many topics set the context of “gift” or “inheritance”, in which case, even if the assignee was in good faith, the lack of “remuneration” could not constitute good faith. The “reasonable price” should be determined by reference to factors such as the market price at the place of the transaction at the time of the transfer and the course of the transaction. This means that if the negotiated price is clearly lower than the market price, the law will presume that the assignee has a subjective fault, thereby excluding the application of bona fides。
The second “pit site” is a prerequisite for “no authority to dispose of”. The requirement for good faith must be that the assignor is not entitled to dispose of it. If the assignor is entitled to dispose, then the assignee acquires title on the basis of a legitimate transaction, which is a normal change of property right and does not require a system of bona fide acquisition. In preparing the examination, it is important to determine the identity of the rights holder before deciding whether to apply the formula obtained in good faith。
In addition, the delivery of movable property is often used for articles. Simple delivery, delivery of instructions, can trigger good faith, but repossession cannot directly result in the effects of property rights acquired in good faith. This is because, in the event of a change in possession, the movable property is not physically removed from the control of the original holder and the external publicity is insufficient to counter the property rights of the original entitled person. This is extremely confusing in case analysis and it is important to be vigilant。
Finally, attention should be paid to exclusions achieved in good faith. Lost and stolen goods are not, in principle, subject to bona fide acquisition. The original right holder is entitled to request restitution from the assignee within two years of the date on which it knew or should have known of the assignee. If, however, the transferee acquires it through an auction or from a qualified operator, the right holder should pay the assignee's expenses when requesting return. Such detailed rules are often the key to determining high scores。
Ii. Establishment and limitation of the right of abode
The right of abode is the new right of usufruct in the civil code and the “new pet” of the exams of recent years. The design of the right of abode, which was originally designed as “the owner has a home”, reflects a shift in the concept of property rights from “all” to “use”. In the title, however, the elements of the establishment of the right of residence and the attributes of the right are often confused. The right of abode is created at the time of registration, with only contracts and not registered, and only produces the effect of claims。
Many candidates tend to ignore the principle of “unremunerated” of the right to housing. By law, the right of abode is established free of charge, unless otherwise agreed by the parties. This means that, by default, the right of abode does not require payment of a price. In the event of a “payment of rent” scenario in the title, the examiner should be acutely aware that this may be the difference between the right of abode and the lease contract. The right of abode, as a property right, is much more stable than the right of lease as a claim。
The non-transferability and non-inheritability of residency is another high-frequency site. The right of abode may not be transferred, inherited, and the residence in which the right of abode is established may not be rented. Unless otherwise agreed by the parties, it is unlawful for the right-of-occupancy person to rent the house without permission. This is fundamentally different from other rights of use, such as the right to contract for the operation of land or the right to use land for construction. It is usually the wrong option to see a description of “the right-of-occupancy subletting the house”。
In addition, the grounds for extinguishment of the right of abode need to be borne in mind. The right of abode is extinguished if the right of abode expires or if the right of abode dies. If the right of abode is extinguished, the registration shall be cancelled in a timely manner. In the combined cases, the right of abode is often combined with the testimonial, divorce estate division. For example, in the case of an elderly person who has established a right of abode for a nanny in a will, the heir of the home ownership cannot request the removal of the nanny, which reflects the priority of property rights over claims。
During the review, it is recommended to compare the right of abode with the right of tenancy. The maximum duration of tenancy rights is 20 years, while the right of abode may be established until the death of the right of abode. A tenancy right can be established without registration, and the right of abode must be registered in rem. This contrast allows for a deeper understanding of the legal attributes of the right to housing as a “vulnerable group's right to security” and, thus, more than a few things can be done upstream。
Iii. Mortgages and leased games
The relationship between mortgages and tenancy rights is one of the most practical values in property law. The core rule is “lease before lease” or “lease after lease”. Article 405 of the civil code specifies the specific application of “sold and sold leases” when the mortgage is realized. “lease after lease” requires the establishment of a lease contract and the lessee's legal possession of the lease。
There's a deep pit here: possession of the truth. In old judicial practice, only a lease contract was concluded before the mortgage was registered, but the civil code reinforced the publicity element of “possession”. If the contract is only signed, but there is no physical occupancy or handover key, the lessee cannot claim the continuation of the lease relationship when the mortgage is realized. There is no real-occupancy lease relationship against a registered mortgage。
On the other hand, if it was a “back-to-back lease”, the rules would be completely different. When a mortgage is created, the lease relationship may not be effective against a registered mortgage if the mortgage is leased. This means that when the mortgagee exercises its right to sell the property, the new buyer has the right to require the lessee to move. Candidates must be as precise as radar in the chronology of “collateral registration” and “lease possession”。
In addition, attention should be paid to the impact of mortgage realization on lease costs. During the enforcement of the mortgage, if the mortgage is seized by the court, the mortgagee has the right to receive the natural fruits or civil fruits (e. G. Rents) of its separation from the mortgage from the date of seizure. However, it is assumed that the mortgagee should give notice of the fact of the seizure of the mortgage to the obligor that the legal fruits should be satisfied. In the absence of notice, rent paid by the lessee to the original landlord remains valid。
During the preparatory process, it was suggested that law students do more integrated exercises on “conflict of rights”. The charm of the law of property rights lies in the dynamic game between rights. By understanding the logic of mortgages and leases, the core secret of security in real estate financing is acquired. A mastery of the sequencing and publicity elements is the universal key to deciphering the subject of property conflicts。
In the light of the above, the learning of the law of property rights cannot be a dead end, but rather an in-depth understanding of the logic behind each system. The test of good faith is “security of dealing”, the test of residence is “security of existence”, and the test of mortgages and leases is “right-in-right”. It is recommended that, in the course of the review, in-depth research be carried out in conjunction with the judicial interpretation of the civil code. What else do you want to know about the pre-qualification skills? Or is there any doubt about the law? Welcome to the comment section. Let's talk about progress
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