Legal provisions on arrears of property fees

; The legal relationship between the owners' default of property management fees in the process of purchasing houses and living, the main parties are: owners (buyers), developers and property management companies. The existing legal relationships include: the pre-employment and property handover management relationship between the property management company and the developer, the legal relationship between the owner and the developer on the sale and maintenance of houses, the legal relationship between the owner and the property management company, the adjacent legal relationship between the owners and other legal relationships arising from infringement. Although there may be multiple legal relationships in the same subject, such as the owner is also the purchaser, the legal relationship with the property management company, the legal relationship with the developer, the neighboring relationship with other owners, etc., it should be clear that these legal relationships are independent of each other, so the rights and obligations of the subject cannot be confused. However, in the practice of property management fees, there are often phenomena of subject confusion and wrong imputation: it is easy for owners to confuse property companies with developers, or to understand the infringement of other owners as poor management of property companies; Developers and property companies also have ultra vires management and unclear responsibilities. The above phenomenon is mainly due to the unclear understanding of the following two legal relations, and the authority of non-property companies is attributed to property companies. The legal relationship between property companies and developers existed before the promulgation of the Property Management Regulations. However, as a construction unit, developers lack professional skills, which is not conducive to the settlement of disputes. The Property Management Regulations, which came into effect on September 1 2003, stipulates that property management activities in residential areas should be carried out by property management enterprises. According to the regulations, the Measures for the Administration of Property Management Enterprise Qualification further stipulates the qualifications of property management enterprises, which are divided into one, two and three grades. Property management enterprises need to implement property management for different types of residential areas according to their own qualifications. Therefore, at present, except for some previously developed communities, the property management of most communities is carried out by qualified property companies. In the former case, the residential property management department, as a department of the developer, is subordinate to the developer and cannot bear the responsibility independently. All external activities must be carried out in the name of the developer. But in the latter case, the developer and the property management company are two independent legal persons respectively. In the management activities of residential areas, property management companies should independently enjoy rights and assume obligations for their own actions. However, before the owners and the owners' general meeting select the property company, the property in the community is managed by the property company selected by the developer. In this case, especially when the developer hands over the residential area to the property company he established, it is very easy to see the following phenomena: the owner transfers the responsibility of the developer to the property company and refuses to pay the fee on the grounds of housing quality problems; Developers and property companies also misunderstood their rights and obligations: the property company proposed not to pay property fees, and the owners did not give the house keys when they moved in; The developer compensates the property fee with the purchase money that should be returned to the owner. The emergence of these situations is due to the unclear legal relationship. For the owners, because the developers are responsible for housing quality assurance, the owners can only ask the developers to repair the houses or bear the liability for compensation without entrusting the maintenance work to the property company, and the property company and the developers should also correctly understand their rights and responsibilities: the collection of property fees can only be carried out by the property company, and the delivery of houses is the responsibility of the developers based on the relationship between housing sales and purchases.

Legal objectivity:

I. Legal Relationship In the process of the owner buying a house, the main parties are: the owner (purchaser), the developer and the property management company. The existing legal relationships include: the pre-employment and property handover management relationship between the property management company and the developer, the legal relationship between the owner and the developer on the sale and maintenance of houses, the legal relationship between the owner and the property management company, the adjacent legal relationship between the owners and other legal relationships arising from infringement. Although there may be multiple legal relationships in the same subject, such as the owner is also the purchaser, the legal relationship with the property management company, the legal relationship with the developer, the neighboring relationship with other owners, etc., it should be clear that these legal relationships are independent of each other, so the rights and obligations of the subject cannot be confused. However, in the practice of property management fees, there are often phenomena of subject confusion and wrong imputation: it is easy for owners to confuse property companies with developers, or to understand the infringement of other owners as poor management of property companies; Developers and property companies also have ultra vires management and unclear responsibilities. The above phenomenon is mainly due to the unclear understanding of the following two legal relations, and the authority of non-property companies is attributed to property companies. (I) Legal relationship between property companies and developers Before the promulgation of the Property Management Regulations, there were cases where developers managed residential properties. However, as a construction unit, developers lack professional skills, which is not conducive to the settlement of disputes. The Property Management Regulations, which came into effect on September 1 2003, stipulates that property management activities in residential areas should be carried out by property management enterprises. According to the regulations, the Measures for the Administration of Property Management Enterprise Qualification further stipulates the qualifications of property management enterprises, which are divided into one, two and three grades. Property management enterprises need to implement property management for different types of residential areas according to their own qualifications. Therefore, at present, except for some previously developed communities, the property management of most communities is carried out by qualified property companies. In the former case, the residential property management department, as a department of the developer, is subordinate to the developer and cannot bear the responsibility independently. All external activities must be carried out in the name of the developer. But in the latter case, the developer and the property management company are two independent legal persons respectively. In the management activities of residential areas, property management companies should independently enjoy rights and assume obligations for their own actions. However, before the owners and the owners' general meeting select the property company, the property in the community is managed by the property company selected by the developer. In this case, especially when developers hand over the residential area to their own property companies, the following phenomena are easy to occur: the owners pass on the responsibilities of developers to the property companies and refuse to pay the fees on the grounds of problems; Developers and property companies also misunderstood their rights and obligations: the property company proposed not to pay property fees, and the owners did not give the house keys when they moved in; The developer compensates the property fee with the purchase money that should be returned to the owner. The emergence of these situations is due to the unclear legal relationship. For the owners, because the developers are responsible for housing quality assurance, the owners can only ask the developers to repair the houses or bear the liability for compensation without entrusting the maintenance work to the property company, and the property company and the developers should also correctly understand their rights and responsibilities: the collection of property fees can only be carried out by the property company, and the delivery of houses is the responsibility of the developers based on the relationship between housing sales and purchases. (two) the legal relationship between the owners. Between owners, there are mainly the adjacent relationship caused by adjacent houses and the legal relationship of damages caused by infringement. According to the provisions of Article 83 of the General Principles of the Civil Law on neighboring relations, if neighboring people fail to properly handle neighboring relations, they shall bear the responsibility for causing obstacles or losses to neighboring people. Tort liability should also be handled in accordance with relevant laws and regulations. But in any case, the premise of the property company's responsibility must be that it is at fault or fails to perform the management duties stipulated in the property service contract. For example, when decorating a house, the owner should pay attention to avoid the interference of noise to the adjacent owners, and can't dismantle the load-bearing structure of the house, which will cause safety hazards to the adjacent houses. Although the property management company promised to supervise and manage the owner's decoration behavior in the service contract, the property management company failed to perform the supervision and management responsibilities, and the property management company should bear part of the responsibility for the losses suffered by the neighboring owners due to decoration, or be at fault for the occurrence of infringement results, and form a * * * with other owners, such as sharing the expenses that should be shared by all owners to individual owners. However, it needs to be clear that whether the behavior of the property company constitutes breach of contract or infringement is completely different from whether the owner pays the property fee. Owners can only ask the property company to bear the liability for breach of contract or infringement, and can't refuse to pay property fees, heating fees and other expenses. It can be seen that due to the confusion of legal relations, the parties involved in property management can not only achieve their original purpose, but also bear the responsibility for the losses caused by the other party due to improper behavior. Second, the exercise of the right of defense is different from the confusing legal relationship mentioned above. In some cases, the reason why owners refuse to pay property fees and heating fees is that the services provided by property companies do not meet the standards stipulated in the property service contract. For example, the property service contract stipulates that the property company will patrol 24 hours, but it has not been done, or it is agreed to keep the environment of the community clean. The owner thinks that the cleaning measures of the property company are not perfect. The owner's refusal to pay the property fee on the grounds that the property management company has not fulfilled its responsibilities is actually a mistake in exercising the right of uneasy defense in the bilateral contract. According to the theory of uneasy right of defense, if the party who performs the debt first in a bilateral contract has definite evidence to prove that the other party has legal circumstances, it can suspend the performance of the debt. One of the statutory circumstances stipulated in Article 68 of China's Contract Law is that there is definite evidence to prove that the other party has lost or may lose the ability to perform debts. In property management, the payment of property fees usually precedes the property services provided by property companies, and the performance of debts that meet the requirements of uneasy defense rights has priority requirements. But in fact, even if the property management company is poorly managed and the services provided are flawed, it generally cannot meet the requirements of Article 68 of the Contract Law that it cannot or may not perform its management duties. Therefore, owners often refuse to pay fees because of insufficient evidence, and they can't get legal support. Although the owner can't exercise the right of uneasy defense, the property management company fails to provide perfect management according to the requirements of the property service contract, which constitutes the incomplete performance of the contract. The owner can completely ask the property management company to bear the liability for breach of contract: improve the service according to the contract requirements and claim compensation for the losses caused to him.