The protection of the bona fide acquiror of real estate in China

Abstract

The bona fide acquisition of immovable property from an unauthorized alienator is usually understood in China as its acquisition from a person whose right is mistakenly registered in the register of real estate rights, due to the reasonable confidence of a bona fide acquirer in the registration record, payment of a rationally justified purchase price and publication of his acquisition in a manner prescribed by law. This system is based on a combination of the traditional mechanism of bona fide acquisition of movable property on the one hand, and the public reliability of the register of real estate rights on the other hand. Since there is a significant difference between the publicity of rights to real estate, which is ensured through the registration of rights to real estate, and the publicity of rights to movable property, which is ensured by its being in the actual possession of the rightholder, it is extremly important the correct interpretation of each element of the set of facts of the bona fide purchase of real estate. The author insists that in case of unreliable registration of the right to immovable property it is correct to focus on the fact of familiarization of the acquirer with the real estate register, and not with the certificate of ownership. According to the author, the determination that the transaction is a paid one should be based on the standard of judgment about a rationally justified price. The bona fide acquisition of real estate, the rights to which are subject to state registration, should be considered completed only at the time of registration of the transfer of title. The general conclusion is made that the improvement of law in the future should be aimed at the implementation of the public reliability of the register of real estate rights.