How to write the paper on the owner's rights and their maintenance in property management? You'd better give some information

On Property Law —— On the Protection of Owners' Rights in Property Management

Article source: China Industrial Research Network

What rights can the Property Law bring to the owners and how to effectively protect their rights? Accordingly, how can a property management company truly establish a service concept, respect the rights of owners, and coordinate its behavior with the rights and interests of owners and the role of owners' committees? This paper expounds the protection of property law to owners' rights from several specific cases.

The property company shall not illegally enter the owner's home.

[Case] Beijing Jiahao International Garden is a large international villa-style residential area, but for a long time, a property management company that has not signed a property management agreement with any owner has been managing the property in this area. The owner's "rude service" to the property management company is terrible. One day, a Korean owner was watching TV at home, and the security guard of the property company suddenly broke into the house and forcibly removed the satellite TV antenna on the grounds that it was strictly forbidden to install satellite TV receiving equipment in the community. According to the owner, it is not accidental to report this kind of thing-there have been cases in which security guards of property companies have carried out theft in the owner's home, and property companies have forcibly charged utilities and heating fees.

[Interpretation of Property Law] The problem exposed in this case is: Can a property company enter the owner's home without authorization in the name of maintaining order or managing property? The answer of property law is resounding: no (property right stipulates that private individuals have legal income; Houses, daily necessities, production tools, raw materials and other real estate and movable property shall enjoy ownership (Article 64). Private legal property is protected by law, and no unit or individual may infringe upon it; Occupation, plunder and destruction (art 66). Owners shall have the ownership of the exclusive parts of buildings such as houses and business buildings, and the condominium of the * * * parts other than the exclusive parts (Article 70). Infringement of property rights, causing damage to the obligee, the obligee may claim damages or claim other civil liabilities (Article 37). Therefore, the owner has exclusive ownership of the house, and no other person or organization may enter the owner's home without permission. This is the "big ownership" emphasized by the property law.

However, it is thought-provoking: why do such disputes occur frequently and what are the root causes? The author believes that; The whole society lacks the most basic concept of real right, and the lack of respect and awe for private property and ownership is the ideological root.

Known as "property management companies", some property management companies really put themselves in the position of "managers", giving people the illusion that they can give orders to the owners, fine them or even confiscate their property. But in fact, the property management company. Management. It is not really a public administration, but a property company entrusted by the owner to provide property services for the owner. Property companies do not have a higher status than owners, nor do they have the power to manage owners. Property management is better than property service. This Property Law explicitly mentions "property service enterprises", which is really radical.

Owners have the right to dismiss the property management company.

[Case] Fengjing Building in Wuyang New Town, Yuexiu District, Guangzhou "expelled" the property management company two years ago, and the property was managed by the owner, which became the focus of people's attention in one fell swoop. In April, 2004, some owners found that only half of the electricity charges charged by the property management company were paid, and the property management company also overcharged 30% of the owners' actual electricity consumption as a "pool". The disclosure of this fact caused an uproar among the owners; The owner proposed to set up an owners' committee to supervise the property company; Approved by the housing management department, Fengjing Building held the first meeting of all owners. After the establishment of the industry committee, we discussed with the property management company and demanded that the property management fee be charged at the government-guided price of 1 yuan per square meter, and the overcharged electricity fee should be refunded. After the negotiation failed, the property company suddenly withdrew from the community management, and the owner of Fengjinglou began to manage the property on his own. According to the introduction of the industry Committee, in the past two years, they have managed the same property, with a monthly income of less than 3 1000 yuan and a monthly savings of 6,000 yuan. In the past, when the property management company was in charge, it overcharged 3 1 000, saying that it was thanks to 1 000 every month. Now many owners of other properties go to Fengjing Building to learn from them and see how they "drive away" the property company designated by the developer. How do the owners manage the building property?

[Interpretation of Property Law] Some property companies are inextricably linked with developers in residential areas. They intervened in property management before the owners' meeting and the owners' committee were established, and when the owners realized that the property company did not want to change, the property company already existed. "Deep-rooted", hard to shake! Even if dismissed, the property management company will find out various reasons and excuses, refuse to quit the property management, and refuse to hand over relevant property information, which makes it difficult for new property management companies to enter.

In this regard, the Property Law makes it clear that the owner can manage the building and its ancillary facilities by himself, or entrust the management to the property service enterprise or other managers (Article 8 1). Entrusted property service enterprise management, there is a relationship between the owner and the property service enterprise, and the property service enterprise shall manage the property according to the owner's entrustment. Secondly, the owners have the right to supervise the property service enterprises (Article 82). Third, the owner has the right to change the realty service enterprise or other managers selected by the construction unit according to law (Article 8 1). Generally speaking, it is up to the owner to decide how to change the realty service enterprise. The Property Law stipulates that the hiring and dismissal of property service enterprises or other managers shall be approved by the owners whose exclusive parts account for more than half of the total building area and more than half of the total number (Article 76). Therefore, in this case, the owner of Fengjing Building has a complete basis to dismiss the original property company and manage the property on his own.

From the practice of property management, owners should pay attention to the following points when exercising the right to choose and supervise property companies: First, owners should put forward opinions on the services of property companies through proper and reasonable channels, and do not intensify contradictions and turn "rational" into "unreasonable". For example, some owners vent their dissatisfaction with the property company by refusing to pay the property management fee, destroying the residential environment and littering. Second, pay attention to the role of owners' congress and owners' committee. Through the resolutions of the owners' congress and the owners' committee, the requirements for the selection, assessment and supervision of property companies are clarified, which embodies the constraints on property companies. Third, the owners should not only actively protect their rights, but also abuse their rights, especially pay attention to unity to avoid the double contradictions and disputes between the owners and the owners' committee and the property management company. Of course, there are still many specific problems in the relationship structure between owners, owners' congress (owners' committee) and property management companies, such as the convening procedure of owners' congress and how to formulate voting rules: how to ensure owners' right to participate and supervise; The property company thinks that the resolution procedure of the owners' meeting itself is illegal, and through what channels can it be found out whether the property company refuses to implement the decisions of the owners' meeting and refuses to hand over the property information, and whether the owners or owners' meeting can bring a lawsuit to the people's court or complain to the real estate management department. These problems need to be standardized by relevant departments.

Parking spaces and garages must first meet the needs of owners.

[Case] For a long time, it is not uncommon to park your car in a parking space in a residential area and pay a parking management fee of 100 yuan to the property management company. However, the director of the industry Committee of the second district of Beijing Huilongguan Longjinyuan put forward: "We must recover this income!" He said that the 220 ground parking spaces in the community are owned by the owners, so the annual parking fee income of more than 350,000 yuan should also belong to more than 740 owners in the community. According to the owner's house purchase agreement, the parking spaces in the community belong to the owner's area, and there are 220 parking spaces in the community. Every parking space likes 1.600 yuan/year. If all of them are rented out, there should be an income of 352,000 yuan, and after deducting 30% as the parking management fee of the residential property, there will be a surplus of more than 240,000 yuan. The property management company claims that 1.600 yuan/year is the parking service management fee, including providing parking wardens, placing parking facilities (such as signs and other facilities) and compensation for vehicle losses.

[Interpretation of Property Law] Who is in charge of parking spaces and garages in residential areas is a difficult problem in property management, and it is also a prone point for disputes between owners and property companies. Owners care about three aspects: first, whether the owners have the ownership of parking spaces and garages; Secondly, does the owner have the priority to use the parking spaces and garages in this community? Finally, how exactly do owners manage parking spaces and garages? Article 74 of the Property Law stipulates the ownership of parking spaces and garages in residential areas. There are two main situations. The first is to plan parking spaces and garages for parking cars in the building area. The ownership of these parking spaces and garages shall be agreed by both parties through sale, gift or lease. Generally speaking, if the construction cost of parking spaces and garages is included in the total cost when planning and eventually allocated to the owner's purchase price, the owner can strive to agree that the parking spaces and garages are owned by the owner through the sales contract, gift contract or other agreements; On the contrary, the ownership of parking spaces and garages is more likely to be owned by developers. The second is to occupy the parking space of the owner's roads or other venues for parking cars, which is owned by the owner. Most of these parking spaces are temporary parking spaces, and the difference from previous parking spaces lies in whether they have been planned or not, which can be verified in the community planning map of government departments.

The second question is how to use the parking spaces and garages owned by developers or property companies. Developers sell or rent all their garages or parking spaces, resulting in nowhere to park. What should owners do? In this regard, the Property Law makes it clear that the planning of parking spaces and garages for parking cars should first meet the needs of owners within the building division. Obviously, 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 judicial practice in the future, needs to be explained by the Supreme Court. For example, if the developer sells or rents parking spaces and garages, whether the owners have priority under the same conditions; How to ensure the realization of this priority in procedure; The developer sells or rents it to a third party without authorization, which affects the parking of the owner. Does the owner have the right to apply to the court for cancellation or invalidation? Recently, the media reported that developers or property companies in Guangzhou, Beijing and other cities raided the sale of residential parking spaces before the entry into force of the Property Law, which triggered a heated discussion. It can be predicted that how to ensure that parking spaces and garages in residential areas "should meet the needs of owners first" will become an unavoidable problem.

The last question is how to exercise the ownership of the parking spaces and garages owned by the owners. "Property Law" only stipulates in principle: firstly, the owner shall have the right of condominium for * * * * (Article 70); Secondly, the condominium of * * * cannot be represented by a single owner, but is decided by the owners' assembly or owners' committee on behalf of the owners, which is binding on the owners (Articles 76 and 78); Third, in most cases, the owners' congress and the owners' committee entrust the property service enterprises to be specifically responsible for the management of parking spaces and garages (Article 82); Fourth, according to the ownership theory, the parking fees charged by the property company should be owned by the owners, and the property company has no right to decide on its own, and should be allocated according to the resolutions of the owners' assembly or owners' committee. At the same time, as an "entrusted service provider", the property management company can also get appropriate remuneration.

Owners who violate the "group rent" can discuss it.

[Case] The door of an apartment was opened, and a dozen young men and women were busy in a "small box" divided into "rooms in the room", using two bathrooms. Some rooms have no windows, only narrow gaps can be ventilated, and the area is no more than 8 square meters. They can only accommodate a cot with a width of 1 meter and a writing desk with a width of 1 meter. This is a scene that happened in two bay cities of COSCO, one of the largest real estates in Shanghai. "White disposable lunch boxes occupy the aisle", "More than 20 people take turns to take a bath at night, and the voice-activated lights flash in the middle of the night" has become a common phenomenon in every community that encounters group rent. The fire and safety hazards caused by "group rent" have worried other owners. Group tenants come from all over the world, with different qualities, cultures and living habits. Young people's work and rest are irregular, which is easy to cause conflicts.

[Interpretation of Property Law] Now everyone shakes their heads when they say "group rent", which is already derogatory. The conflict between the owner's ownership and other owners' rights and public interests reflected from this is intriguing. From the lessor's point of view, it is his inherent right to rent the house to the lessee. However, some owners believe that "group rent" affects the environment and order of the community and damages its neighboring rights; At the same time, the identity of group renters is complex and easy to flow, which is also a potential threat to the personal and property safety of owners. The government management department is worried that group rent may cause fire, public security and other vicious incidents. Therefore, how to regulate the phenomenon of "group rent" is also a major point of property law.

The author thinks that the owner's rights should be discussed according to the interest relationship between the owner and the "group rent"

Look at the owner of the rental house first. According to the provisions of Article 70 of the Property Law, "the property owner enjoys ownership of the exclusive parts such as houses and business premises in the building". Therefore, the owner renting a house is the embodiment of ownership power. If the owner is forbidden to rent the house, it is equivalent to depriving the owner of his ownership. However, it must be noted that the Property Law also stipulates: "The acquisition and exercise of property rights shall abide by the law and respect social morality, and shall not harm the public interests and the legitimate rights and interests of others" (Article 6), "The exercise of rights by owners shall not endanger the safety of buildings or the legitimate rights and interests of other owners" (Article 7 1). Therefore, owners should be restrained from renting houses, otherwise it will affect the legality of renting: First, renting should 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 rental area: the per capita construction area is not less than 10 square meter, or the per capita use area is not less than 7 square meters. If the lessor divides the house into multiple rooms and provides them to multiple tenants, the per capita usable area or construction area is lower than the specified area, which is illegal. Second, it is not allowed to "change residence to non-residence" and change residence to business premises. If the owner conducts business activities such as "family hotel" and "daily hotel rental" in the name of "group rent", it will violate the administrative regulations of public security, industry and commerce or the owners' convention. Article 77 of the Property Law stipulates: "The owner shall not change the house into a business house in violation of laws, regulations and management regulations. If the owner changes the house into a business house, it shall be approved by the interested owner in addition to complying with laws, regulations and management regulations. " Third, the safety of buildings and the rights and interests of other owners shall not be endangered. For example, the lessor shall not damage the load-bearing wall of the building at will in order to divide the space, shall not pull wires indiscriminately to cause fire hazards, and shall not pile up articles to block the passage.

Next, look at other owners. If you think that "group rent" affects public safety or your own interests, other owners generally have three ways to protect their rights; First, complaints and reports. The administrative departments of public security, fire protection, real estate, industry and commerce are required to investigate and deal with group rent (especially the change of residence to non-residence) according to their respective responsibilities. Second, draw the owner's statute. It is suggested that the owners' congress and the owners' committee formulate the rules of behavior for owners to rent houses in this community, and bring "group rent" into the scope of the owners' convention. Acts that violate the owners' convention shall be submitted to the owners' congress, the owners' committee and the actors for consultation. Third, private relief. If the noise, waste, pollutants and other harmful substances generated by "group rent" infringe on the neighboring rights of other owners, other owners can bring a lawsuit to the court accordingly.

Housing maintenance funds are owned by the owners.

[Case] In February of 200 1 year, Tian Hong Property Management Company made a big publicity to the owners in order to undertake the property management business of Baihui Apartment in Huangpu District, Shanghai. If Tian Hong Property is allowed to move in, the company will clean the external wall and paint the internal wall for Baihui Apartment free of charge as a meeting gift for all owners. Tian Hong Property moved into Baihui Apartment in March, 20001year, and immediately carried out external wall cleaning and internal wall painting, which was very satisfactory to the owners. But then the owner learned that Tian Hong Property had withdrawn 37,395 yuan from the property maintenance fund as the painting and cleaning fee. What surprised the owners even more was that at the end of 2005, when the property company was sued by the court to recover the maintenance fund, during the audit, it was found that Zhang, the former director of the industry Committee, stamped and signed the two engineering contracts of 200 1 in March and April respectively, "agreeing to be charged in the maintenance fund".

[Interpretation of Property Law] The maintenance fund is called the "pension fund" of the house, and its importance is beyond doubt. However, due to the lack of maintenance fund management system, it is easy to lead to tension between owners, owners' committees and property management companies. Among them, the outstanding problems are: some residential maintenance funds are not collected in place, and the developers have not handed over the maintenance funds collected by the owners; Some residential funds management is not perfect, and property companies misappropriate, abuse or illegally use maintenance funds; The operation of some community committees is not standardized, and there is no supervision mechanism for the use of maintenance funds by property companies. Some even collude with each other to profit from it: some owners don't know about the use of maintenance funds, and property companies never disclose the finance and use of related maintenance funds, ignoring the audit requirements of owners, and so on.

Article 79 of the Property Law makes it clear that the maintenance funds of buildings and their ancillary facilities belong to the owners. This fundamentally determines that the owners have the right to control the maintenance funds, and the income generated by the maintenance funds should also belong to all owners. The Property Law also stipulates that maintenance funds should be used for the maintenance of elevators, water tanks and other parts. Therefore, in reality, it is illegal for some owners' committees to spend activity funds and personnel allowances in maintenance funds, or for some property companies to use maintenance funds illegally to make up for the lack of property service fees, or to bear the expenses that should have been borne by the property companies themselves (for example, Tian Hong Property and the owners agreed to bear the painting and cleaning expenses themselves). In addition, since the maintenance fund belongs to the owner, its use should also be decided by all the owners, and the owner has the right to supervise the use of the maintenance fund by auditing the accounts or requesting the publication of financial details. The Property Law clearly states that it is the responsibility and authority of the owners' assembly to raise and use the maintenance funds of buildings and their ancillary facilities. From the procedural point of view, it should be approved by the owners whose exclusive parts account for more than two-thirds of the total building area and more than two-thirds of the total number of owners (Article 76).