[Direct answer]Yes. If the contract is valid and the conditions for performance are met, the buyer may, in accordance with Articles 577 and 580 of the Civil Code, request the seller to continue to perform the contract and order the seller to assist in the transfer of ownership; except for cases where the house has been sold to others and transferred, is sealed up or mortgaged and cannot be removed, etc., which make it impossible to perform the contract either legally or in fact. In this case, the buyer may terminate the contract and claim breach of contract damages or compensation for the price difference, and apply for property preservation at the same time.

1. Problem background and typical scenarios

In second-hand housing transactions, sellers often breach their contracts during periods of rising housing prices: they may renege on the price increase after signing the contract and collecting the deposit, delay the handling of mortgage registration, sell the same property to two different buyers, or go missing before the transfer of ownership. If the buyer has already paid the deposit or even a large sum of money, should they accept the breach of contract and accept the compensation, or insist on getting the property? This depends on the performance status of the contract and the ownership status of the house. In a case handled by Henglue Law Firm, the buyer and seller signed the contract in 2008, completed the transaction for 400,000 yuan, and agreed in the notarized contract to cooperate with the transfer of ownership after the issuance of the property ownership certificate. The buyer paid the money and moved in for many years. In 2021, after the issuance of the immovable property ownership certificate, the parties failed to handle the transfer of ownership. The buyer sued the seller's husband and wife to assist in the transfer of ownership and pay the breach of contract penalty of 80,000 yuan. The court ultimately ordered the seller to assist in the transfer of ownership within a limited time, but the request for the breach of contract penalty was rejected.

II. Key points of contention

  • Whether the transaction can proceed depends on whether the house is mortgaged or sealed up, whether it has been sold to others and transferred to them, and whether the buyer has fulfilled his obligation to pay. All these factors together determine whether the request for transfer of ownership can be supported.
  • Regarding the liability for breach of contract: The parties may choose either to continue to perform the contract or to terminate it as the basis for their claims. To claim damages for breach of contract, there must be contractual provisions and actual breach of contract to support it. If the damages are too high or too low, the parties may request an adjustment.
  • Implementation: If the seller refuses to cooperate after the transfer of ownership is determined by the court, you can apply for forced execution. With the court's assistance in execution, you can handle the transfer registration unilaterally without the seller's presence.

III. Professional analysis by Henglue Lawyers

Henglue Lawyer analyzed that before claiming forced transfer of ownership, a "feasibility check" should be conducted: checking the ownership and encumbrances of the house (whether the mortgage has been lifted, whether there is a seizure order, and whether the house has been registered for sale online), self-checking the performance of payment, and assessing whether there are performance obstacles. According to Article 580 of the Civil Code, if a party fails to perform a non-monetary obligation, the other party may request performance, except in cases where performance is legally or factually impossible — for example, if the house has been sold to a bona fide third party and the transfer has been completed, or if the house has been seized by the judicial authority and cannot be removed, continued performance would be futile, and the court should proceed to rescind the contract and claim damages for breach of contract or the difference in price. In the aforementioned 400,000 yuan transaction case, the court ruled that the agreement was legal and valid, and ordered the seller to assist in transferring ownership within seven days. However, the buyer's claim for 80,000 yuan in breach of contract damages was not supported, as the agreement did not specify the transfer time and the seller had not explicitly refused to transfer ownership. This shows that the court clearly supports the continued performance of the transfer obligation, and breach of contract damages must be based on the contract provisions and the actual breach of contract. When suing, the buyer should prepare separate evidence for each claim to avoid confusing the priorities. 恒略律师分析称，在主张强制过户前，需进行“可行性体检”：查房产权与负担（是否解押、有无查封、是否已网签另售）、自查付款履行情况、评估是否存在履行障碍。根据《民法典》第五百八十条，当事人一方不履行非金钱债务的，对方可以请求履行，但法律上或事实上不能履行的除外——房屋已另售善意第三人并完成过户、或被司法查封且无法涤除的，继续履行即落空，应转向解除合同并主张违约金或差价损失。在前述40万元成交案中，法院认定协议合法有效，判令卖家于七日内协助办理过户；买方主张的8万元违约金，因协议未明确过户时间、卖家方未曾明确拒绝办理而未获支持。可见法院对继续履行过户的支持是明确的，违约金则须以合同约定与违约事实为基础，买方起诉时应把两项请求的证据分别备齐，避免主次混同。

IV. Practical suggestions and legal basis

The steps of protecting rights are as follows: 1. First, secure evidence of the contract and payment, including the sales contract, supplementary agreements, deposit and housing payment receipts, and communication records with the agent. 2. Second, verify the status of the property by checking the mortgage, seizure, and online signing status through the real estate registration system. 3. Third, send a written notice demanding cooperation in the transfer of ownership within a specified timeframe. 4. Fourth, when suing, specify the request for continued performance and order the transfer of ownership. If conditions permit, apply for property preservation and seizure of the involved property to prevent double sales. 5. If the seller still refuses to cooperate after obtaining a valid judgment, apply for enforcement and, in accordance with Article 14 of the Interim Regulations on Real Estate Registration, apply for registration unilaterally with the valid legal document. Main legal basis: - Article 577 of the Civil Code (liability for breach of contract); - Article 580 (continued performance and exceptions); - Article 563 (statutory rescission). For general issues such as contract rescission and adjustment of the breach of contract penalty, please refer to relevant provisions.Business and contract dispute services for enterprisesFor professional questions about housing transactions, please refer to the following link:Real estate sales and construction project services.

5. Henglue Law Firm's Reminder

This case is handled by Beijing Henglu Law Firm.Xiong BinrongThe attorney (practice license number: 11101202211410897, subject to the document issued by the judicial administrative organ) acts as the agent, and the client is exempt from paying the breach of contract penalty and completes the transfer of ownership on schedule. Henglu Law Firm reminds buyers to clarify the transfer time, the arrangement for lifting the mortgage, and the breach of contract liability clauses when signing the contract, and to use fund supervision as much as possible for the payment. If the seller delays the transfer, they should promptly send a written notice of reminder and preserve evidence such as WeChat messages and audio recordings. If the seller has fundamentally breached the contract and rendered the contractual purpose futile, they should promptly rescind the contract, claim breach of contract penalties and compensation for the price difference, and avoid losing the opportunity due to prolonged delay. For more experience, please refer toProperty sales and construction project servicesAndBeijing Henglue Law Firm.

Q1: What should a seller do if they'd rather pay the breach of contract penalty than sell the house?

The penalty fee is not the seller's "redemption fee". If the contract is valid and the house meets the conditions for performance, the buyer has the right to reject the termination proposal and insist on continuing the performance and ordering the seller to assist in the transfer of ownership; the court's review focuses on whether there are legal or factual obstacles to performance, rather than the seller's subjective intention. If the seller uses losing money as a delaying tactic, the buyer can also apply for property preservation to seize the house to prevent the seller from reselling it to others and creating a fait accompli of being unable to perform. Generally, the rise and fall of housing prices do not affect the determination of continuing performance. Of course, if the house is indeed unable to be performed, it should promptly move towards terminating the contract, claiming the penalty fee and the loss of the difference in house prices, and converting the time cost into an enforceable compensation request.

Q2: What evidence do I need to prepare to sue for forced transfer of ownership?

There are four categories of core evidence: 1. Contract-related evidence: sales contracts, supplementary agreements, and online signing information, which prove the transaction relationship and the obligation to transfer ownership. 2. Payment-related evidence: deposit and down payment transfer receipts, loan approval and disbursement materials, which demonstrate the buyer's performance of contractual obligations. 3. Communication regarding contract performance: WeChat chat records, call recordings, and reminder letters, which demonstrate the seller's breach of contract and the buyer's proactive efforts to resolve the issue. 4. Property status-related evidence: real estate registration inquiry results, which confirm the absence of liens, seizures, or other obstacles to transferring ownership. Cases where the full purchase price has been paid enjoy the strongest evidentiary support. For cases where the final payment remains outstanding, the buyer can prepare to pay the balance in full during litigation to eliminate obstacles. Applying for preservation and seizure orders concurrently with filing a lawsuit can significantly increase the actual transfer rate.

Q3: What should I do if the seller still refuses to cooperate after the transfer of ownership has been finalized by the court?

This does not affect the transfer of ownership. If the effective judgment confirms the obligation to assist with the transfer of ownership but the seller refuses to fulfill it, the buyer may apply to the court for compulsory enforcement. The court will issue a notice of assistance in enforcement to the real estate registration authority, and the registration authority will handle the transfer registration accordingly without the seller's presence to sign. According to Article 14 of the Interim Regulations on Real Estate Registration, if the party acquires the right to real estate through an effective legal document of the people's court, the party may apply for registration unilaterally. If the house is still occupied by the seller or a third party, the buyer may claim the vacating of the house and pursue the liability for delay in performance at the same time. The overall process depends on the progress of enforcement, and it can usually be completed within a few months. Do not give up the enforcement process because of the other party's delay.

Q4: What should the seller do if he/she sells the house to someone else and completes the transfer of ownership?

If the subsequent buyer constitutes a bona fide acquisition—that is, unaware of the situation, paying a reasonable price, and completing the registration—the previous buyer will no longer be able to recover the house and will only be able to terminate the contract, request the seller to return the payment, pay the breach of contract penalty, and compensate for losses such as the house price difference. The price difference loss can be substantial during a period of rising housing prices and can be determined through judicial appraisal. If it can be proven that the subsequent buyer colluded with the seller maliciously (such as an obviously low price, or quickly transferring ownership without actually viewing the house), a lawsuit can be filed to confirm the invalidity of the subsequent sales contract and then claim to continue to perform the seller's contract. Therefore, when signs of a "one house, two sales" situation are discovered, a lawsuit should be filed and an application for seizure should be made as soon as possible to secure rights before the transfer registration. The earlier the action is taken, the greater the room for maneuver will be.

Q5: Can I both demand a forced transfer of ownership and request a high penalty for breach of contract?

Requests can be made concurrently, but the adjudication logic must be clear: continuing to perform the contract and terminating the contract are mutually exclusive, and only one can be used as the basis for the request. If the party chooses to continue to perform the contract, he/she can simultaneously claim the breach of contract penalty or the loss of delay in transferring ownership, but the breach of contract penalty is subject to the contract's provisions—if the contract does not stipulate the transfer period or the breach of contract penalty clause, the court may only order the transfer of ownership and reject the request for the breach of contract penalty, as was the case in the aforementioned case. If the party chooses to terminate the contract, he/she can claim the breach of contract penalty plus the loss of price difference, and the total of the two items often exceeds the deposit. Before suing, the party should choose a path based on the completeness of the contract terms and the condition of the house. If the breach of contract penalty is obviously too high or too low, the party may request the court to adjust it according to law.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, to avoid missing the statutory time limits. →Legal services for real estate transactions·Attorney Xiong Binrong·Beijing Henglu Law Firm