[Direct answer]When a house purchased under someone else's name is sold by the nominal registrant without authorization, whether it can be recovered depends on whether the buyer constitutes a bona fide purchaser. According to Article 311 of the Civil Code of the People's Republic of China (effective January 1, 2021), the transferee must act in good faith, pay a reasonable consideration, and complete the registration in order to acquire ownership. If the buyer colludes with the registrant or is aware of the ownership defects and commits gross negligence, the sales contract will be invalid according to Article 154, and the true owner may sue to confirm the invalidity and demand the return of the house. The recovery window is short, so it is necessary to immediately fix the nominal purchase agreement, investment certificates, and evidence of residence and use, and apply for property preservation. You can consult for more information.Legal services for real estate transactions and construction projectsThe team orBeijing Henglu Law FirmEvaluate the recovery plan.

1. Problem background and typical scenarios

It's not uncommon in China's real estate registration practice for people to buy houses under someone else's name: using others' purchasing qualifications to evade purchase restrictions, registering houses under relatives' names to enjoy demolition and resettlement benefits, registering public housing under parents' names to claim heating subsidies, and borrowing money under others' names due to credit or loan restrictions. In such arrangements, the registrants on the property ownership certificates are separated from the actual investors and actual rights holders, leading to potential risks. Risks may emerge in the following scenarios: the nominal registrants sell the houses on the market or transfer ownership without the knowledge of the actual rights holders; the nominal registrants mortgage the houses to borrow money; the nominal registrants' spouses claim that the houses are marital assets and demand division in the event of divorce; the nominal registrants become heavily indebted, and the houses are seized by creditors for enforcement; after the nominal registrants pass away, their heirs claim the houses as inheritance and demand division. Once the houses are sold to third parties without authorization, the actual rights holders will face dual challenges of proving ownership and establishing bona fide acquisition.

II. Key points of contention

  • Proof of the borrowed name relationship and the actual ownership: A written borrowed name agreement is the most convincing; for oral agreements, it is necessary to rely on the time and amount of the payment receipts for the purchase price, the facts of decoration and residence, the bills for water and electricity of the property, the communication records between the parties, etc. to infer the agreement. If the evidence is insufficient, it may be deemed as the property of the registrant.
  • Determination of the buyer's bona fide acquisition: Whether the buyer has inspected the house in person, whether he/she is aware of the actual possession and use of the house, whether the transaction price is significantly lower than the market price, whether he/she has the qualification to purchase the house, and whether there are any abnormalities in the transfer method (such as transferring the house through a sham marriage to avoid taxes) all affect the determination of bona fide acquisition; real estate agents and other professionals have a higher duty of due diligence.
  • Contractual validity and return path: A contract in which the buyer and the registrant collude maliciously to harm the interests of others is invalid, and the parties' collusion in making false sales declarations is also invalid. If the house has not yet been transferred, the buyer should apply for a seizure in time to prevent it from being resold. However, if the house has been resold again, it will be much more difficult to recover it.

III. Professional analysis by Henglue Lawyers

Henglue Lawyers observed in handling cases of borrowed names being disposed of without authorization that the court's review typically follows two lines. The first line is whether the borrowed name relationship is established: a written borrowed name agreement, transaction records showing that the down payment was paid from the actual right holder's account, who renovated and lived in the house after delivery, who paid the property fees and utilities, and chat records between the parties regarding the reasons for registration together constitute a complete chain of evidence. Relying solely on kinship and verbal statements, the chances of winning the case are slim. The second line is whether the buyer acted in good faith: according to Article 311 of the Civil Code, good faith acquisition must meet three conditions simultaneously: acting in good faith at the time of transfer, transferring at a reasonable price, and completing registration. In practice, the following circumstances are often deemed not to constitute good faith: the transaction price is significantly lower than the market price; the buyer never inspected the house in person or turned a blind eye to the fact that the house was occupied by others for a long time; the buyer, who is engaged in real estate brokerage business, failed to conduct basic verification; the buyer, who does not have the qualification to purchase a house, still evaded the purchase restrictions by means of fake marriage; and the buyer, who is eager to complete the transfer, ignores the obvious signs of ownership disputes over the house. In terms of litigation requests, the plaintiff usually claims that the house sale contract between the registrant and the buyer is invalid and demands the return of the house. If the buyer constitutes good faith acquisition and the house cannot be recovered, the plaintiff will then request the nominal registrant to compensate for the losses. If the house is subsequently involved in auction or enforcement disposal, the plaintiff may also combine the relevant provisions of the Civil Code and other laws to safeguard their rights and interests. 恒略律师在处理借名买房被擅自处分的案件中观察到，法院审查通常沿两条线展开。第一条线是借名关系是否成立：书面借名协议、房款由实际权利人账户支付的流水、房屋自交付起由谁装修居住、物业费水电费由谁缴纳、双方关于登记原因的聊天记录，共同构成完整证据链；仅凭亲属关系和口头说法，胜诉希望渺茫。第二条线是买受人是否善意：依《民法典》第311条，善意取得须同时满足受让时善意、以合理价格转让、已完成登记三项要件；实务中以下情形常被认定不构成善意——成交价明显低于市场行情、买受人从未实地查看房屋或对房屋由他人长期居住视而不见、买受人本身从事房产中介等经纪业务却未做基本核查、买受人自身不具备购房资格仍通过假结婚等方式规避限购完成过户、房屋存在明显权属争议痕迹仍急于交易。诉讼请求设计上，通常主张确认登记人与买受人之间的房屋买卖合同无效并要求返还房屋；若买受人构成善意取得无法追回房屋，则转向要求名义登记人赔偿损失，房屋后续涉及拍卖、执行处置的，还可结合Creditor-debtor relations and enforcement case servicesClaim rights through procedures such as raising objections. The most common reasons for losing the lawsuit are: first, the lack of evidence of the agreement to borrow the name; second, delaying the lawsuit, resulting in the house being resold to an unaware third party; third, focusing only on litigating the contract without preserving the property in time.

IV. Practical suggestions and legal basis

At the legal basis level: Article 209 of the Civil Code (effective from January 1, 2021) stipulates that the transfer of real estate property rights takes effect upon registration in accordance with the law; Article 215 distinguishes between the effectiveness of contracts and the transfer of property rights; Article 311 establishes the bona fide acquisition system and its three requirements; Article 154 stipulates that civil legal acts in which the actor and the counterparty collude maliciously to harm the legitimate rights and interests of others are invalid; Article 146 stipulates that collusive false expressions of intention are invalid; Article 597 clearly stipulates that if the seller fails to obtain the right of disposition and results in the transfer of ownership of the subject matter being impossible, the buyer may rescind the contract and request the seller to bear breach of contract liability; Article 235 grants the right holder the right to request the return of the original object. At the practical advice level: When purchasing a house under someone else's name, a written loan agreement should be signed to clarify the actual ownership of the house, the reasons for registration, the restrictions on disposition, and the breach of contract liability; the purchase price must be paid through the buyer's own account and the payment receipts must be preserved; decoration, living, and payment records should be kept for a long time; the buyer can establish a right of residence on the house or register a mortgage to enhance protection; if any abnormalities such as the listing, online signing, or transfer of ownership of the house are discovered, the buyer should immediately sue and apply for property preservation and seizure of the house to block further transfer; when verifying the transaction involving online signing and registration, the buyer can combine the above measures with other legal means to protect their rights.Real estate sales and construction project servicesSynchronous assessment.

5. Henglue Law Firm's Reminder

The essence of buying a house under someone else's name is the separation of the registered appearance and the actual rights. The law protects transaction security and bona fide third parties, so there is uncertainty about whether the house can be recovered after being sold without authorization. Prevention is far better than remedial measures. If you find that the house has been sold, you should do three things immediately: fix the evidence of the borrowed name and investment, check the online signing and registration status of the house, and apply for litigation preservation to seize the house to prevent the house from being resold and making the situation irreversible. Even if the buyer is recognized as having acquired the house in good faith and the house cannot be recovered, you should not give up the right to claim compensation for the purchase price from the nominal registrant. If you are currently facing similar dilemmas, it is recommended that you hire a lawyer as soon as possible to sort out the evidence and formulate a recovery or compensation plan to avoid missing the best opportunity for preservation and litigation.

Q1: If there's no written agreement for buying a house under someone else's name, can I still sue if the house is sold?

It's possible to sue, but the burden of proof will be significantly higher. The court typically reviews the following aspects when determining the existence of a nominal ownership relationship: whether the purchase price was paid from the actual owner's account, whether the payment timing and amount correspond to the purchase date, whether the house was renovated and lived in by the actual owner for a long time, who paid the property management fees and utility bills, and the statements made by both parties regarding the reasons for registration and ownership. Evidence such as investment certificates, proof of residence, chat records with the registrant, and witness statements can all be submitted as evidence. It should be noted that if there is no written agreement and the investment records are also missing, the court may determine the transaction as an ordinary investment loan rather than a nominal purchase, and the house will be handled according to its registered status. Therefore, it is necessary to strengthen the evidence of the agreement as much as possible before suing and apply for preservation measures simultaneously to prevent the house from being transferred again.

Q2: Under what circumstances does the buyer not constitute a bona fide purchaser, and can I reclaim the house?

According to Article 311 of the Civil Code, the acquisition of property in good faith must meet three conditions simultaneously: the transferee must have acted in good faith at the time of the transfer; the transfer must have been conducted at a reasonable price; and the transferred real estate must have been registered in accordance with the law. Any of these conditions being absent renders the acquisition of property in good faith invalid. In practice, the following circumstances often fail to constitute good faith: the transaction price being significantly lower than the market price; the buyer having never inspected the property in person or having knowingly accepted the transfer despite being aware that others were living and using the property; the buyer being a real estate agent or other professional who failed to fulfill their basic due diligence obligations; the buyer lacking the qualifications to purchase the property but evading purchase restrictions through methods such as fake marriages; or the property exhibiting clear signs of ownership disputes. The burden of proof for meeting these conditions lies with the actual rights holder, who should organize evidence around three aspects: abnormal pricing, abnormal transaction processes, and abnormal buyer identities.

Q3: What claims should be made in the lawsuit, and what evidence should be prepared?

The litigation requests typically include: confirming that the house purchase contract between the nominal registrant and the buyer is invalid; ordering the buyer to assist in restoring the registration of the house or returning the house; and, if the house cannot be returned, requiring the nominal registrant to compensate for the losses. The evidence list is organized around two aspects: regarding the nominal registration relationship, submitting the nominal registration agreement, the payment records of the purchase price, the loan repayment records, the decoration contracts and invoices, the utility bills of the property, the proof of residence, and the chat records; regarding the buyer's lack of good faith, submitting the comparison of the listed transaction price with the market price, the buyer's professional information, the buyer's eligibility for purchasing the house, and abnormal transfer methods (such as fake marriage records), as well as evidence of the buyer's visit to the house and the current possession status. At the same time, it is recommended to apply for property preservation when suing, and to seize the disputed house to prevent it from being transferred again.

Q4: Approximately how much does it cost and how long does it take to litigate such cases?

In terms of fees: The acceptance fee for the case is paid in stages according to the litigation subject matter, i.e., the value of the house. For a litigation subject matter of 1 million yuan, it costs about 13,000 yuan. Applying for preservation requires paying an additional preservation fee and providing a guarantee. Lawyer's fees depend on the complexity of the case and the stage of representation, and a written quote should be requested. In terms of time: The first-instance ordinary procedure generally concludes within six months from the date of acceptance of the case. The second-instance procedure, if the other party appeals, generally concludes within three months. The period involved in appraisal or public notice service will be further extended. If the buyer has been identified as having acquired the property in good faith and needs to shift to claiming compensation, the enforcement procedure will also be involved. It is recommended to take into account the uncertainty of preservation guarantee fees and enforcement recovery when budgeting, and never sacrifice the quality of the solution for the sake of pursuing low prices.

Q5: The house hasn't been sold yet. How can we prevent the nominal registrant from disposing of it without authorization?

A defense can be built from four aspects: First, supplement the written borrow-name agreement to clarify the actual ownership of the house, the reason for registration, the prohibition of disposition without the written consent of the actual owner, and the liability for breach of contract; Second, retain complete evidence of investment and possession, and ensure that the purchase price and loan repayment are paid from the borrower's own account; Third, in accordance with Article 366 of the Civil Code, establish a right of residence for oneself on the house and register it. After the registration of the right of residence, it will be easier for buyers to detect ownership defects during the transaction of the house, and it will also enhance the residential security of the actual owner; Fourth, regularly check the status of the house registration and online signing, and immediately send a warning letter and consult a lawyer if any abnormal changes such as listing or mortgage are found. For borrow-name relationships where trust has already broken down, it is advisable to negotiate as soon as possible to transfer the house back to the actual owner or completely terminate the borrow-name arrangement.

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 limit. →Legal services for real estate transactions·Beijing Henglue Law Firm