Legal basis for invalidity of property service contract

In judicial practice, the validity of the property service contract should be seriously recognized. To confirm that the realty service contract is invalid, it should be determined in strict accordance with the provisions of the Supreme People's Court on the basis of the facts of specific cases. And whether it can be declared invalid accordingly.

1. What property service contract is invalid?

The contract is the expression of the true meaning of both parties, and the conclusion of the contract is based on the willingness of both parties, and both parties to the contract should follow the principle of good faith.

The Civil Code stipulates that a contract is invalid under any of the following circumstances:

(1) One party enters into a contract by means of fraud or coercion, which harms the interests of the state;

(2) Malicious collusion that harms the interests of the state, the collective or a third party;

(3) Covering up illegal purposes in a legal form;

(4) damaging the public interest;

(5) Violating the mandatory provisions of laws and administrative regulations.

Second, the handling of invalid property service contracts

(a) in any of the following circumstances, the parties request that the property service contract or the terms of the contract be invalid, which shall be supported:

1. The real estate development enterprise fails to select a property management enterprise in accordance with the provisions of the second paragraph of Article 24 of the Property Management Regulations.

2. Real estate development enterprises still sign property service contracts with property management enterprises in their own names after establishing owners' committees in residential areas according to law.

3. The agreement on property services in the pre-sale contract of commercial housing excludes the owners from choosing property management companies in the future and agreeing on property service fees.

4. Property management companies have not obtained corresponding property management qualifications according to law.

5. The realty service contract signed by the owners' committee without the consent of the owners' congress or within the scope decided by the owners' congress has not been ratified by the owners' congress or more than 50% of the owners before the prosecution or during the first trial.

6. The property management enterprise entrusts, transfers or dismembers the overall management service to a third party without authorization, and contracts it to a third party in the name of subcontracting.

7. Other violations of mandatory provisions of laws and administrative regulations.

(two) after the contract is confirmed to be invalid, the property management enterprise has provided services, and may require the owner to pay the property service fee at the lowest price stipulated by the local government.

(three) in any of the following circumstances, the parties request to confirm that the property service contract is invalid, and it shall not be supported:

1. Although the owners' committee elected by legal procedures has not been registered by the real estate administrative department, it has signed a property service contract with the property management enterprise according to the decision of the owners' meeting.

2. Property service contracts signed by the owners' committee elected by legal procedures without the consent of the owners' congress or within the scope decided by the owners' congress, but ratified by the owners' congress or more than 50% of the owners before the prosecution or during the first instance.

3. The property service contract signed between the owners' committee elected without legal procedures and the property management enterprise, but more than 50% of the owners ratified it afterwards before the prosecution or during the first instance.

Three, the consequences of invalid property service contract

According to the provisions of China's Civil Code, invalid property service contracts are not protected by law. After the contract is invalid or cancelled, the property obtained from the contract shall be returned. If it is impossible or unnecessary to return it, it shall be compensated at a discount.

Legal Consequences of Invalidation, Cancellation or Determination of Article 157 of the Civil Code of People's Republic of China (PRC) After a civil legal act is invalid, revoked or determined to be invalid, the property obtained by the actor due to the act shall be returned; If it is impossible or unnecessary to return it, it shall be compensated at a discount. The party at fault shall compensate the other party for the losses thus suffered; If all parties are at fault, they shall bear their respective responsibilities. Where there are other provisions in the law, those provisions shall prevail.

Legal basis:

Article 388 of the Civil Code of People's Republic of China (PRC)

To establish a security interest, a security contract shall be concluded in accordance with the provisions of this Law and other laws. Guarantee contracts include mortgage contracts, pledge contracts and other contracts with guarantee functions.

The guarantee contract is a subsidiary contract of the main creditor's rights and debts contract. If the principal creditor's rights and debts contract is invalid, the guarantee contract is invalid, unless otherwise stipulated by law. If the debtor, guarantor and creditor are at fault after the guaranty contract is confirmed to be invalid, they shall bear corresponding civil liabilities according to their faults.