Case of the Week | Does a husband's notarized gift of a jointly owned home without prior property division have legal effect?

Lawyer Wu Qiaolong: Member of the Management Committee, Director of the Corporate Department, Member of the Hangzhou Lawyers Association Corporate Committee

Lawyer Wu Qiaolong, areas of expertise: corporate legal counsel, company establishment and governance, civil and commercial litigation and arbitration, etc.

Contact Information:

Phone: 15158890016 Email: wuqiaolong@htxls.com

Does a husband's act of gifting the jointly owned family property (without ownership certificate) to his spouse through notarization have legal effect before the property division?

【Case Summary】

In 1993, the house of Li and Zhang located on a homestead in Hangzhou Jianggan District was demolished, and the resettled persons included Li, Zhang, and their two sons, Li A and Li B. From 1994 onwards, they successively received four resettlement houses. Because these houses are jointly built houses in the village, they cannot obtain property certificates until now.

The four members (parents and sons) did not explicitly divide the property. After resettlement, Li B married Wu, and one of the resettlement houses was used as their marital home, but the couple did not live in the property all the time, instead renting it out.

In 2008, without the consent of Li, Zhang, and Li A, Li B notarized a gift of the property rights of one of the houses to his wife, Wu. In 2017, Wu sued for divorce from Li B. Zhang, Li, and Li A filed a lawsuit with the court, requesting confirmation of their right to residence in the subject property and demanding that Wu pay the rent from the property.

【Defense Strategy】

1. The subject property is not an isolated property; it is one of four resettlement houses. The four individuals, as resettled persons, successively received four houses. Currently, one house is used by Li A, two houses are rented and used by Li and Zhang, and the subject property is the defendant's marital home, which has been rented out by the defendant after marriage, generating income. Although there is no clear property division agreement, the objective facts show a clear de facto division.

2. The four demolished and resettled houses are jointly built houses in the village and cannot obtain property certificates. The village collective economic organization once issued a certificate to Wu, proving her right to use the property for managing utilities, water, electricity, gas, children's vaccinations, and filing records, etc.

3. The defendant Li B has gifted this right of use to Wu through notarization, giving up the rights to the house; therefore, Wu will solely enjoy the right to use the property after the divorce.

4. It is necessary to file a counterclaim to confirm Wu's right to possess, use, and benefit from the subject property. In this way, while rejecting the plaintiff's claim, the court can confirm Wu's right of residence, gaining the upper hand in the property division in the divorce case.

【Judgment Points】

The subject property is the legitimate family property resettled after the plaintiff's house demolition. The defendant Li B, as a co-owner of the property, and the counterclaim plaintiff Wu, as Li B's wife, have possessed and used the property for ten years, with the plaintiff never raising any objections. This constitutes legitimate possession. Based on the use of the resettled houses by the plaintiff and defendant Li B, it can be determined that the plaintiff and defendant Li A have made a de facto division of the resettled houses. The plaintiff's claim to confirm the right to use the subject property occupied and used by the two defendants is clearly not conducive to production and life.

【Judgment Result】

1. The lawsuit request of Li, Zhang, and Li A is rejected.

2. It is confirmed that the counterclaim plaintiff Wu has the right to possess, use, and benefit from the subject property.

【Analysis】

1. Before the plaintiff filed the lawsuit, the defendant Wu had already filed for divorce. Since the subject property is jointly owned family property, the court may not divide the subject property. The defendant Wu is not a resettled person and cannot file a lawsuit for property division. Although she has a notarized document in hand, the property division in this case has stalled. However, the plaintiff's lawsuit to confirm their right of residence provides an opportunity for Wu. Through the court's factual determination, the fact that the subject property has been de facto divided is confirmed. Therefore, the plaintiff's lawsuit not only failed to achieve its purpose but also helped the defendant Wu, providing a turning point for the division of property in the divorce. Therefore, as a lawyer representing this case, one should proceed from the overall perspective and consider whether the lawsuit is in the best interest of the plaintiff.

2. This case involves the confirmation of the right of residence in property without a property certificate, and also involves jointly owned family property and marital property. In this case, since the family members did not divide the property, it is still jointly owned family property. Whether Li B's notarized gift of the property without a property certificate to Wu constitutes unauthorized disposal is a question. Therefore, after accepting the commission, through analysis and collection of relevant evidence, proceeding from the perspective of de facto division and legitimate possession, Wu's right to use the property was ultimately confirmed. In the divorce case, Wu's sole right to possess, use, and benefit from the subject property was also confirmed.

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