Notice to Owners-Legal Basis for Closing Balcony

Notice to Owners-Legal Basis for Closing Balcony

Owners who want to close the balcony should pay attention to the fact that the balcony cannot be closed at will, which will involve some legal issues. Below we will bring the legal basis for closing the balcony, please be careful.

One,

In the Code for Design of Residential Buildings of the Ministry of Construction, a closed balcony is defined as "a balcony surrounded by glass windows above the railing." Therefore, the current building design code and the relevant provisions of the construction area calculation divide the balcony of the building into two categories: fully enclosed and non-enclosed. The construction area of fully enclosed balcony is calculated according to its peripheral horizontal projection area; The construction area of the unsealed balcony is calculated according to half of the horizontal projection area of the periphery of the retaining structure.

Balcony construction area: a. The original design closed the balcony, and the construction area was calculated according to the horizontal projection area of its periphery; B. The building area of balcony (bottom balcony) is calculated according to half of the horizontal projection area of the floor where it is located; C concave balcony is included in the construction area according to half of its net area (including parapet area); D. Semi-cantilever and semi-concave balcony, the construction area of the selected part is calculated as half of the horizontal projection area of its floor, and the construction area of the concave part is calculated as half of its net area.

Second,

1. China's "General Principles of Civil Law" stipulates: "Property ownership means that all people have the right to possess, use, benefit and dispose of their own property according to law". As the owner of the house, the owner has the complete right to possess, use, benefit and dispose of his house. He made necessary additions, decorations and renovations to his house, which is a manifestation of exercising the right of punishment, that is, the performance of exercising ownership.

2. The property management service contract and the owners' convention signed between our owners and the previous property have no legal effect, and they are unequal and unreasonable invalid contracts without consultation between the two parties. The reason is that if our owners don't sign the property management service contract and the owners' convention, we won't get the key to our own property, so the contract is a format overlord contract, which is invalid and not binding on the owners.

3. Owners and properties are the relationship between managers and consumers (owners). As the owner of the purchased house, the owner has exclusive ownership of the balcony and can use it independently.

4. The owner's acceptance of the management services of the property management company should be a consumption behavior and a natural person in a weak position. The property management company belongs to an enterprise legal person, has independent property, enjoys civil rights in its own name and bears civil liabilities; As far as its nature is concerned, the property management company belongs to the service industry, and its legal relationship with the owner is the relationship between the server and the client, that is, the relationship between the property management manager and the consumer. The rights and obligations of both parties shall be adjusted and protected by relevant consumer rights protection laws.

5. To sum up, the Commercial Housing Purchase and Sales Contract and the Property Management Service Contract signed by our owners at that time were standard contracts, citing Article 39, paragraph 2, and Article 41 of the People's Republic of China (PRC) Contract Law, especially Article 24 of the People's Republic of China (PRC) Consumer Protection Law. The format contracts, notices, statements and shop notices listed in the preceding paragraph are invalid.

6. Therefore, the director of the industry committee believes that the main responsibility of the property management company is to supervise the property management of the building owners in the absence of clear provisions in the current laws. Whether to close the balcony is the owner's right, and the property management contract should not be stipulated. Therefore, the use of the closed balcony that does not extend outward should be recognized as a legitimate act that does not infringe on the interests of other owners.

Third,

Let me give you a real case (the owner closes the balcony and the property requires demolition)

primary facts

From April 200 1 April1April 5, two owners, Li Shu and others 12, paid the down payment and decided to buy the affordable housing developed and built by Dacheng Development Company-the first floor property of Chang 'an New City. From June to July, 20001year, 12 owners signed commercial housing sales contracts with Dacheng Development Company respectively, and went through the house occupancy procedures. On February 9, 2002, 65,438, the owners of the first floor of Chang 'an New Town 100 jointly drafted the Owner's Resolution on the Closed Balcony on the first floor of Chang 'an New Town and the Notice to Beijing Dacheng Property Management Company, and handed them over to the relevant person in charge of the property management company. Subsequently, the first batch of fifteen owners collectively closed the balcony on June 65438+1October 65438+August 2003.

In this regard, Beijing Dacheng Property Management Company filed a lawsuit in court, demanding that Li Shu and other 12 owners dismantle the closed balcony and restore it to its original state.

court decision

The property management service contract signed by the plaintiff and the defendant to perform their property management duties is a standard contract, and both parties are the relationship between the property management manager and the consumer (owner). As the owner of the purchased house, the owner has exclusive ownership of the balcony and can use it independently. The agreement that the plaintiff did not consider the unknown balcony conditions in the commercial housing sales contract signed when selling the house was unreasonable and invalid. In view of the fact that the materials and styles used by the 12 defendants to close the balcony are uniform, which does not affect the overall beauty of the community, the city appearance and environment and other public interests, the plaintiff's claim is not supported. According to the first paragraph of Article 53 of the Civil Procedure Law of People's Republic of China (PRC), the second paragraph of Article 39 and Article 41 of the Contract Law of People's Republic of China (PRC), Article 71 of the General Principles of the Civil Law of People's Republic of China (PRC) and Article 24 of the Law on the Protection of Consumers' Rights and Interests of People's Republic of China (PRC), the judgment rejected the plaintiff's claim of Beijing Dacheng Property Management Company.

case analysis

(a) the relevant provisions of the property management contract applicable format contract

The contract law establishes three important principles for the standard clauses in the standard contract: first, it is clear that the standard clause maker should take reasonable measures to draw the attention of the other party to the clauses that exempt or limit its liability; Second, it is forbidden for the makers of standard clauses to use standard clauses to exempt themselves from liability, aggravate the other party's liability and exclude the other party's main rights; Third, when there is a dispute over the interpretation of the standard terms, an explanation that is not conducive to the party providing the standard terms should be made. These regulations not only provide favorable protection for the rights of economically disadvantaged consumers, but also effectively prevent and limit companies and enterprises from abusing their economic advantages to harm consumers' interests.

According to the provisions of China's Contract Law, the property management contract signed by both parties in this case is a format contract drawn up by the parties in advance for reuse and without consultation with the other party when concluding the contract.

First of all, the plaintiff in this case violated the relevant administrative regulations when signing the commercial housing sales contract with the owner, and was vague about whether the north and south balconies of the house were closed. The owner thinks the balcony is closed, but the property management company thinks it is not. If the two parties to a standard contract are in dispute, they shall make an explanation that is not conducive to the party providing the standard terms.

Secondly, in the property management contract, the plaintiff's property management company did not consider the unknown balcony situation and the exclusive rights of the owner's building in the commercial housing sales contract signed when selling houses, so the agreement that it was forced not to close the balcony without authorization was unreasonable, and the content should be invalid.

Therefore, in this case, the Commodity House Sales Contract and the Property Management Service Contract were identified as standard contracts, and Article 39, paragraph 2, and Article 41 of People's Republic of China (PRC) Contract Law were cited in the legal application, especially Article 24 of People's Republic of China (PRC) Consumer Rights Protection Law. "Operators shall not make unfair and unfair decisions to consumers by means of format contracts, notices, statements, store notices, etc. The format contracts, notices, statements and store notices listed in the preceding paragraph are invalid. " The regulations fully protect the legitimate rights and interests of owners. According to the above provisions, the court finally rejected the plaintiff's claim.

(two) the applicable consumption relationship between the property management company and the owners.

In China, with the development of the real estate industry, property management enterprises have only been separated from real estate development enterprises in recent years, and there are more and more litigation disputes caused by their fees and service quality. At present, whether the property management disputes are protected by the Consumer Protection Law is also controversial.

Property management companies have independent property, enjoy civil rights and bear civil liabilities in their own names, and belong to enterprise legal persons. At the same time, in terms of its nature, property management companies carry out activities for the purpose of making profits, which belongs to the service industry. Therefore, the property management company should be an "operator" in the sense of the Consumer Protection Law, and its legal relationship with the owner is the relationship between the service provider and the client, that is, the relationship between the property management manager and the consumer, and the rights and obligations of both parties should be adjusted and protected by the relevant Consumer Protection Law.

The trial judge's application of consumer protection law conforms to its essence of protecting the weak, better protects the interests of the parties to the contract, and better plays the leading role of the legal spirit, which is the concrete embodiment of China's advanced legislative thought in the trial.

(3) The owner shall enjoy the ownership of the building according to law.

The case is a property management dispute caused by the owner's use of the balcony. Then, can the owners close the balcony at will, and what rights do they enjoy on the balcony?

In the second chapter "Ownership" of the Draft Proposal of China Property Law drafted by Mr. Liang Comet, the third section "Differentiated Ownership of Buildings" was created, which clearly stipulates that if several people distinguish a building and each has its own parts, only part of it has its own ownership, and unless otherwise agreed, the same part of the building and its attachments enjoy the ownership of the building in proportion to its exclusive parts. At the same time, it is stipulated that the exclusive part refers to the part of the building that is different from all buildings in structure and use and can be used as the subject matter of ownership alone. Unless otherwise limited by law, the owner of the division can freely use, profit from and dispose of its exclusive part, excluding the interference of others. The use of the exclusive part by the owner of the condominium shall not hinder the normal use of the building or infringe upon the interests of the owner of the condominium.

According to the above definition, the defendant in this case, that is, the owner, should be recognized as the owner of the building. Owners have the right to possess, use, benefit and dispose of closed or unsealed balconies, excluding others' interference. However, the owners also have the obligation: those who exercise exclusive part of the ownership shall not interfere with the normal exercise of the building and harm the interests of the owners; Maintenance and repair shall not interfere with the peace, safety and health of other owners; Should accept the inspection, maintenance and neighboring obligations of the property management company. Of course, the law will restrict the use of the owner in some cases. Judging from the legislation of our country, the common restrictions are mainly aimed at the owner changing the use of the building in the decoration, endangering the safety of the building, especially the load-bearing structure of the building.

In the absence of clear provisions in the current law, the main responsibility of the property management company is to supervise the property management of building owners. Whether to close the balcony is the owner's right, and the property management contract should not be stipulated. Therefore, the use of the closed balcony that does not extend outward should be recognized as a legitimate act that does not infringe on the interests of other owners. In this case, it is unreasonable to stipulate that the owner shall not close the balcony and there is no legal basis. Therefore, it is correct for the court to reject the claim of the property management company asking the owner to dismantle the closed balcony decoration.