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Case Study on the "Property Rights Law": On the Protection of Owners' Rights in Property Management

Article Source: China Industry Research Network

What can the "Property Rights Law" bring to the owners? What rights do they have and how can they be effectively protected? Correspondingly, how can property companies truly establish a service concept, respect the rights of owners, and harmonize their actions with the rights and interests of owners and the role of the owners' committee? This article uses case studies to interpret the protection of owners’ rights under the Property Rights Law from several specific cases.

Property companies are not allowed to illegally enter the owner's home

[Case] ??Beijing's "Jiahao International Garden" is a large international villa-style residential community, but for a long time the company has not signed a property contract with any owner. The property company under the management agreement manages the property in the community. The owner is miserable with the property company's "rude service". One day, a Korean property owner was watching TV at home. Security guards from the property management company suddenly broke in and forcibly removed the satellite TV antenna. The reason was that the use of satellite TV receiving equipment was strictly prohibited in the community. According to the owner's report, this kind of thing is not accidental. There have been cases where property company security guards have committed theft at the owner's home, and the property company has forcibly collected water, electricity and heating bills.

[Interpretation of the Property Law] The question revealed in the case is: Can the property company enter the owner's home without authorization in the name of maintaining order or managing the property? The answer to this under the Property Law is a resounding: no. (Real rights regulations stipulate that private individuals have ownership of their lawful income; real estate and movable properties such as houses, daily necessities, production tools, raw materials, etc. (Article 64). The lawful property of private individuals is protected by law and is prohibited from being infringed upon or occupied by any unit or individual. , looting and vandalism (Article 66) The owner shall have ownership rights to the exclusive parts such as residences and commercial buildings in the building, and shall have the same rights and interests to all parts other than the exclusive parts. The right of management (Article 70). If the property rights are infringed and cause damage to the right holder, the right holder may request compensation for damages or bear other civil liabilities (Article 37). Therefore, the owner has exclusive rights and interests in the house. No other person or organization can enter the owner's home without his consent. This is the "ownership is great" reflected in the Property Rights Law.

But what is puzzling is: why are there such disputes? It happens frequently. What is the root cause? The author believes that the lack of the most basic concept of property rights and the lack of respect and respect for private property and ownership are the ideological roots.

Because of the name "property management company". In the name of property management, some property companies really put themselves in the position of "managers", giving them the illusion that they can issue orders to owners, impose fines on them, or even confiscate their property, etc. But in fact, the property management company is responsible for the property management. It is not truly administrative management with a public power, but the property company is entrusted by the owner to provide property services to the owner. The property company does not have a higher status than the owner, and it does not have the power to manage the owner. It is not so much property management." , it is better to call it "property service". This time the "Property Rights Law" clearly refers to "property service enterprise", which is really the source of the truth.

The owner has the right to speculate on the "squid" of the property company.

[Case] ??Fengjing Building in Wuyang New Town, Yuexiu District, Guangzhou "evicted" the property management company two years ago and let the owners manage the property themselves. In April 2004, some owners discovered that the property management company collected the property on their behalf. Only half of the electricity bill was paid, and the property company also charged the owners an extra 30% of the actual electricity consumption as a "share". After the disclosure of this fact, the owners were in an uproar; the owners proposed to set up an owners committee to supervise the property company; After the approval of the department, the owners' committee of Fengjing Building was established. After the establishment, they negotiated with the property management company to charge 1 yuan per square meter for the property management fee, and at the same time, the overcharged electricity fee was refunded, but the negotiation failed. After that, the property management company suddenly withdrew from the community management, and the owners of Fengjing Building began to manage their own properties. According to the owners' committee: In the past two years, they have received less than 31,000 yuan per month for managing the same property, and every month. There is still a monthly savings of 6,000 yuan.

In the past, when the property management company was in charge, it overcharged the property by 31,000 yuan and claimed that it was losing more than 1,000 yuan a month. Nowadays, many other property owners come to Fengjing Building to learn how they "drive away" the property management company designated by the developer. How do the owners manage the building properties?

[Interpretation of the "Property Rights Law"] Some property companies are closely related to the developers of the community. They are involved in the property management before the owners' meeting and the owners' committee are established. When the owners become aware of the property company's When the change didn't go as expected, the property company had already decided. "Deep-rooted" and hard to shake! Even if you are fired, the property management company will find various reasons and excuses to refuse to quit property management and refuse to hand over relevant property information, making it difficult for new property companies to enter.

In this regard, the "Property Rights Law" clarifies that owners can manage the building and its ancillary facilities by themselves, or they can entrust a property service company or other managers to manage it (Article 81). If a property service enterprise is entrusted with management, the owner and the property service enterprise are in an entrusting and entrusted relationship. The property service enterprise shall manage the property according to the owner's entrustment. Secondly, the owner has the right to supervise the property service enterprise (Article 82). Third, the owner has the right to change the property service company or other manager hired by the construction unit in accordance with the law (Article 81). Generally speaking, the way for an owner to change a property service company is decided with the consent of the owner. The Property Law stipulates that the selection and dismissal of property service companies or other managers must be subject to the consent of owners whose exclusive parts account for more than half of the total area of ??the building and who account for more than half of the total number of persons (Article 76). Therefore, the owner of Fengjing Building in this case has every basis to fire the original property company and manage the property by himself.

From the perspective of property management practice, when owners exercise their rights to choose and supervise property management companies, they should pay attention to the following points: First, if owners have opinions on the services of property management companies, they should raise them through legitimate and reasonable channels. , do not intensify conflicts and turn "reasonable" into "unreasonable". For example, some owners vent their dissatisfaction with the property management company by refusing to pay property management fees, damaging the community environment, and littering. Second, focus on giving full play to the role of the owners’ conference and the owners’ committee. Through the resolutions of the owners' conference and the owners' committee, the requirements for the selection, employment, assessment and supervision of property companies are clarified, reflecting the constraints on property companies. Third, owners must actively protect their rights while not abusing their rights. Particular attention must be paid to unity to avoid double conflicts and disputes between owners, owners committees and property companies. Of course, there are still many specific issues regarding the structure of the relationship between owners, owners' conference (owners' committee), and property management companies, such as the procedures for convening the owners' conference and how to formulate voting rules: how to protect the owners' rights to participate and supervise; the property management company It is believed that the resolution process of the owners' meeting itself is illegal. How can we catch the property company that refuses to implement the decisions of the owners' meeting and refuses to hand over property information? Can the owners or the owners' meeting file a lawsuit with the people's court or complain to the real estate management department? These issues await relevant departments to formulate detailed rules and regulations.

Parking spaces and garages should first meet the needs of owners

[Case] ??For a long time, I have parked my car in a parking space in the community and paid more than 100 yuan to the property management company for parking management. Fei, this is a common thing. However, the director of the property owners committee of Huilongguan Longjinyuan District 2 in Beijing proposed: "We want to recover this income!" He said that the 220 ground parking spaces in the community belong to the owners exclusively, so parking all year round The income of more than 350,000 yuan from fees should also be owned by more than 740 owners in the community. According to reports, according to the owner's house purchase agreement, the parking spaces in the community belong to the owner's *** area, community ***, 220 parking spaces, and each parking space is 1,600 yuan/year. If all are rented out, there should be 352,000 After deducting 30 yuan of income as the parking management cost of the community property, there is still a surplus of more than 240,000 yuan. The property company claimed that the management fee of 1,600 yuan/year is used for parking services, including the provision of parking attendants, the placement of parking facilities (such as signs and other facilities) and compensation for scratched and lost vehicles.

[Interpretation of the "Property Rights Law"] Who has the final say over the parking spaces and garages in the community? This is a difficult issue in property management, and it is also an easy point for disputes between owners and property companies. The issues that owners are concerned about have three levels: first, does the owner own the parking spaces and garages; secondly, does the owner have priority to use the parking spaces and garages in the community; and finally, how do the owners specifically manage the parking spaces and garages. Article 74 of the "Property Rights Law" explains the ownership of parking spaces and garages in residential areas. There are two main situations. The first one is for parking spaces and garages planned to park cars within the building zone. The ownership of such parking spaces and garages shall be agreed upon by the parties through sale, gift or lease. Generally speaking, if the construction cost of parking spaces and garages is included in the total cost during planning and is finally allocated to the owner's purchase price, the owner can try to stipulate that the parking spaces and garages will be owned by the owner through a sales contract, gift contract, or other agreement. ; On the contrary, the ownership of parking spaces and garages is more likely to belong to the developer. The second is to occupy parking spaces for parking cars on roads or other sites owned by the owner, which belong to the owner. Most of these parking spaces are temporary parking spaces. The difference from the previous parking spaces is whether they have been planned. This can be verified in the community planning map of the government department.

The second question is how owners use parking spaces and garages owned by developers or property management companies. If a developer sells or rents out all its garages or parking spaces, leaving owners with nowhere to park, what should owners do? In this regard, the "Property Rights Law" clarifies: within the building zone, parking spaces and garages planned for parking cars should first meet the needs of the owners. It is most obvious that this article is mainly to prevent developers from selling parking spaces or garages at will to protect the interests of owners. The intention is good, but how to understand it, especially how to apply it in future judicial practice, awaits the judicial interpretation issued by the Supreme Court. For example, if a developer sells or rents a parking space or garage, does the owner have priority under the same conditions? How to ensure the realization of this priority in terms of procedures? If the developer sells or rents to a third party without authorization, affecting the owner's parking, Does the owner have the right to apply to the court to cancel or declare the property invalid? Recently, media reported that developers or property companies in cities such as Guangzhou and Beijing were selling parking spaces in residential areas before the Property Law came into effect, sparking heated discussions. It is foreseeable that how to ensure that parking spaces and garages in residential areas "should first meet the needs of owners" will become an unavoidable issue.

The last question is how the owner exercises ownership of the parking space and garage he owns. The "Property Rights Law" only makes principle provisions on this: First, since it is owned by the owner, the owner has the right to manage the property owner (Article 70): Second, the property owner cannot manage the property owner by a single person. The owners are the representatives, and the owners’ conference or the owners’ committee represents the owners to make a unanimous decision and it is binding on the owners (Articles 76 and 78); Third, in most cases, the owners’ conference and the owners’ committee entrust property service companies to Specifically responsible for the management of parking spaces and garages (Article 82); Fourthly, according to the ownership theory, the parking fees collected by the property company should belong to the owner. The property company has no right to make decisions independently and should be based on the resolution of the owners' meeting or the owners' committee. At the same time, the property company, as the "entrusted service provider", can also receive appropriate remuneration.

Owners of illegal "group renting" can ask for explanation

[Case] ??The door of an apartment opened, and a dozen young men and women were separated into "rooms within rooms". Everyone is busy in the "small box" and only uses two bathrooms. Some rooms have no windows and only narrow gaps for ventilation. The area does not exceed 8 square meters and can only accommodate a 1-meter-wide small bed and a 1-meter-wide writing desk. This is a scene that happened in COSCO Liangwan City, one of the largest real estate projects in Shanghai. "White disposable lunch boxes occupy the aisles", "more than 20 people take turns taking a shower at night, and voice-activated lights flash on and off in the middle of the night" have become common phenomena in every community that encounters group renting. Fire and security risks caused by "group renting" worry other property owners. The group of tenants come from all over the country and have different qualities, cultures and living habits. In addition, young people lack a regular schedule, which can easily lead to conflicts.

[Interpretation of "Property Rights Law"] Nowadays, when people talk about "group renting", everyone shakes their heads. "Group renting" has become derogatory. The conflict between owner ownership and other owners' rights and public interests reflected in this is thought-provoking. From a rental owner's perspective, it is their inherent right to rent their property to a tenant. However, other owners believe that "group renting" affects the environment and order of the community and damages their neighboring rights; at the same time, the identity of group renters is relatively complex and easy to move around, which is also a potential threat to the personal and property safety of the owners. The government management departments are worried that group renting may lead to fires, security and other vicious incidents. Therefore, how to regulate the phenomenon of "group renting" is also a major focus of the Property Law.

The author believes that the rights of owners should be discussed based on the interests between the owners and "group renting".

First look at the owners of the rental houses. According to Article 70 of the Property Law: “The property owner shall have ownership rights to the exclusive parts of the building such as residences and business buildings.” Therefore, renting out a house by an owner is a manifestation of ownership rights. If the owner is prohibited from renting out the house blindly, it will be equivalent to depriving the owner of his ownership rights. However, it must be noted that the "Property Rights Law" also stipulates: "The acquisition and exercise of property rights shall abide by the law, respect social ethics, and shall not damage the interests of the public and the legitimate rights and interests of others" (Article 6), "The owner shall exercise his rights It shall not endanger the safety of the building or damage the legitimate rights and interests of other owners” (Article 71). Therefore, owners must also be subject to restrictions when renting out houses, otherwise the legality of the rental will be affected: First, renting must not violate national and local laws and regulations. For example, the "Implementation Measures for the Management of Residential Housing Leasing in Shanghai" stipulates the per capita leased area: the per capita building area shall not be less than 10 square meters, or the per capita usable area shall not be less than 7 square meters. If the lessor divides the house into multiple rooms and provides them to multiple tenants and the average usable area per person or the building area is lower than the specified area, it is a violation. Second, it is not allowed to "residence-to-household conversion" to convert residences into commercial housing. If the owner conducts business activities such as "family-style hotels" and "daily rental hotels" in the name of "group rental", it will violate the public security, industrial and commercial administrative regulations or the owners' covenant. Article 77 of the "Property Rights Law" stipulates: "The owner shall not violate laws, regulations and management regulations by changing the residence into a commercial building. If the owner changes the residence into a commercial building, in addition to complying with the laws, regulations and management regulations, the owner shall With the consent of the interested owners. "Third, the safety of the building and the rights and interests of other owners must not be endangered. For example, the lessor is not allowed to arbitrarily damage the load-bearing walls of the building in order to divide the space, is not allowed to pull wires indiscriminately to cause fire hazards, and is not allowed to pile things indiscriminately to block passages, etc.

Let’s look at other owners next. If they believe that "group renting" affects public safety or personal interests, other owners generally have three ways to protect their rights; first, complain and report. The public security, fire protection, real estate, industry and commerce and other administrative departments are required to investigate and deal with group renting (especially those who have changed their residence) in accordance with their respective responsibilities. Second, ask the owner to stipulate regulations. It is recommended that the owners' assembly and the owners' committee formulate rules for the behavior of owners renting out houses in the community, and include "group renting" within the scope of the owners' covenant. For those who violate the owners' covenant, the owners' meeting and the owners' committee will be asked to come forward to negotiate with the offender. Third, private relief. If "group renting" brings noise, waste, pollutants and other harmful substances that infringe the neighboring rights of other owners, the other owners may file a lawsuit in court accordingly.

House maintenance funds are owned by the owner***

[Case] ??In February 2001, Tianhong Property Company took over the property management business of Parkway Apartment located in Huangpu District, Shanghai. Make a big publicity to the owners and make it clear that if Tianhong Properties is allowed to move in, the company will clean the exterior walls and paint the interior walls of the Parkway Apartment for free as a welcome gift to all the owners. After Tianhong Properties moved into Parkway Apartments in March 2001, it immediately carried out exterior wall cleaning and interior wall painting projects, and the owners were very satisfied. But then the owner learned that Tianhong Property had withdrawn 37,395 yuan from the property maintenance fund as painting and cleaning fees.

What surprised the owners even more was that when they sued the property company through the court to recover the maintenance funds at the end of 2005, during the audit process, it was discovered that Zhang, the former director of the property management committee, had conducted appraisals on Tianhong Property in March and April 2001. The two construction contracts were stamped and signed "Agree to be included in the maintenance fund."

[Interpretation of the "Property Rights Law"] Maintenance funds are called the "pension money" of the house, and its importance is unquestionable. However, due to the lack of maintenance fund management related systems, it is easy to cause tensions between owners, owners committees and property companies. Among the more prominent problems are: maintenance funds in some communities are not collected in place, and developers do not collect maintenance funds from owners on their behalf. The fund management of some communities is not perfect, and property companies have misappropriated, abused or used maintenance funds in violation of regulations; some community property committees operate irregularly and have no supervision mechanism for the use of maintenance funds by property companies, and some even collude with each other. Seeking profit: Some owners are unaware of the use of maintenance funds. The property management company never publishes the financial and usage status of relevant maintenance funds, and ignores the owner's auditing requirements, etc.

Article 79 of the "Property Rights Law" clarifies that the maintenance funds of the building and its ancillary facilities belong to the owner. This fundamentally determines that the owner has control over the maintenance funds, and the income generated from the maintenance funds should also belong to all owners. The Property Law also stipulates that maintenance funds should be used for the maintenance of all parts such as elevators and water tanks. Therefore, in reality, some owners' committees spend their activity funds and personnel allowances in maintenance funds, or some property companies make up for the lack of property service fees or cover expenses that should be borne by the property companies themselves (for example, in this case, Tianhong The property owner and the property owner have agreed that they will bear the painting and cleaning fees) and illegal use of maintenance funds by removing flowers and grafting trees is illegal. In addition, since maintenance funds belong to the owners, their use should also be decided unanimously by all owners. The owners have the right to supervise the use of maintenance funds by auditing accounts or requesting the release of financial details. The Property Law clarifies that raising and using funds for the maintenance of buildings and ancillary facilities falls within the responsibilities and authority of the owners' meeting, and from a procedural perspective, it should be approved by the owners whose exclusive portion accounts for more than two-thirds of the total area of ??the building and who account for the total number of persons. More than two-thirds of the owners agree (Article 76).