Seeking graduation thesis of law department ...

I graduated with a major in law in 2003. This is my graduation thesis. You can look at the references first.

Ownership analysis of parking spaces (garages) in residential quarters

Abstract: The ownership and ownership of parking garages in residential quarters is a specific system to distinguish all buildings. The Property Law stipulates that the ownership of parking garages with different properties shall be implemented, which makes us more clear about these different solutions than in the past. The promulgation of this law is not only related to the protection of the rights and interests of the majority of urban residents, but also to the harmony of the whole region. We should attach great importance to the promulgation of this law, and there are still some defects in this law that need to be corrected.

Parking space in residential quarters is one of the most controversial issues in property management in China. The "parking space dispute" between real estate developers, owners of residential quarters and property management companies is becoming increasingly fierce. Due to the lack and ambiguity of existing legal norms, the judgments of local courts are also varied. With the further commercialization of housing and the emergence of car owners, the "dispute over parking spaces" will inevitably lead to a wider range of contradictions, and the ownership of parking spaces in residential quarters is the core of all kinds of disputes and contradictions. The unclear ownership of parking spaces in residential quarters will make the legitimate interests of real estate developers and buyers uncertain, seriously damage the legitimate rights and interests of the parties, hinder the healthy development of the real estate market, and bring many problems to social and economic life and public management. Therefore, it is urgent to establish a perfect legal system to clearly stipulate this issue. This paper attempts to analyze and discuss the ownership of parking spaces in residential areas according to the different forms of parking spaces in China and some theories and practices abroad.

The ownership of residential parking spaces can be divided into two categories in time: the first category is the initial ownership of parking spaces, which belongs to developers; The second category is subsequent ownership, which refers to the ownership of parking spaces after the developer sells all the houses to the owners. These are two different forms of ownership and cannot be confused. In real life, the first kind of ownership is not controversial, while the second kind of ownership is controversial, so the latter is the focus of this paper.

It is necessary to introduce the concept of differentiated ownership of buildings before analyzing the ownership of parking spaces (garages) in residential areas. Differentiated ownership of a building refers to the combination of the exclusive right of each owner to its exclusive part and the * * * right to its * * * part when the building is structurally divided into the exclusive part used by each owner and the * * * part used by multiple owners according to the use function. (See Wang Liming's On Garage Ownership and Related Legal Issues in Property Law) Building ownership consists of proprietary parts and * * * parts, and its right object also includes proprietary parts and * * * parts (Jane: Property Right in Civil Law (Volume I), China University of Political Science and Law Press, 1998 edition, 65438). Proprietary part mainly refers to the part with independent building structure and independent use function according to the structure and function of the building. * * * part refers to the * * * part of buildings and ancillary facilities and other building parts that do not have independent use functions. Article 76 of the Property Law stipulates: "The green space, roads and property management houses within the building division belong to the owners, except those belonging to municipal construction. The ownership of the clubhouse garage belongs to the owner, except that the construction unit can prove its ownership, if there is an agreement in accordance with the agreement, if there is no agreement or the agreement is unclear. " Although the ownership of buildings is stipulated, the ownership of property management houses, clubs, garages and green spaces is stipulated as "if there is an agreement, if there is no agreement, it belongs to the owner of the building unless the developer can prove that it enjoys ownership". In particular, the ownership of parking spaces and garages in residential areas is controversial at present. The Property Law stipulates that "the ownership of parking spaces and garages planned for parking cars within the building area shall be agreed upon by the parties through lease, sale or gift. Parking spaces that occupy roads owned by the owner or other venues for parking cars will be owned by the owner. Although the Property Law has made relevant provisions, such problems are still complicated in real life, which is a difficult point in the practical application of building ownership rules.

Generally speaking, there are three types of parking spaces in existing residential areas in China:

The first form: special parking facilities built in residential areas, separated from each other by walls, with clear perimeter and independent entrance, become independent special things different from housing. Its ownership can be registered, and the owner can only own the ownership or use right after buying or renting the parking space; If there is no special agreement, its ownership belongs to the developer who built the parking facilities. For this kind of parking space, we call it a garage, and developers usually sell this kind of parking space in bundles or separately, that is, a specific parking space is linked to a specific residential unit and sold to the owner or developer as a whole, and the residential unit and underground parking space are sold separately as independent transaction objects. The difference between the two sales methods is that the parking space is sold as an accessory of a specific unit in bundled sales, while the parking space is sold as an independent subject matter in separate sales. The similarity between the two is that this type of parking space is owned by the owner of the community, and the owner has paid the corresponding consideration.

The second form: it is a special parking space set aside by the property company in the community. This kind of parking space developer does not carry out special sales, and adopts the way of sharing sales. Because the developer's investment in it is extremely limited, and it has been included in the pool area for sale, after the developer sells the house, because the land use right in the community has been owned by all owners, the parking space on the land use right belongs to all owners. In real life, it is generally the parking person who pays the use fee to the property management company, which regards the use fee as a part of the property management fee for the benefit of all owners.

The third form: parking spaces are built on the first floor or underground of each building in the community. In this case, there are three sales methods adopted by developers: divided sales, bundled sales or separate sales. Shared sales means that developers sell parking spaces to all owners, instead of providing a parking space for each unit, and each owner shares the purchase cost of parking spaces according to the construction area of the exclusive part of his house. In real life, there are two ways to judge the allocation: one is to indicate in the contract, that is, to indicate in the house sales contract that the garage in the community is allocated for sale, otherwise it will be sold separately; The other is the cost calculation method, that is, the calculation method of counting the cost of the community garage into the house price is shared sales, and it is sold separately only when it is clearly stated that the house price does not include the cost of the community garage. In the way of sharing sales, it is often judged by whether the owner shares the construction cost. If all owners share the cost, the parking space belongs to all owners, otherwise it belongs to the developer. Relatively speaking, the ownership of bundled sales or individual sales is relatively clear. In real life, because it is difficult for us to find out whether developers will share the construction cost, and because the parking spaces in residential quarters in China can not meet the needs of all owners at this stage, some developers sell this type of parking spaces to people other than owners, which leads to disputes. The current "Beijing Commodity House Pre-sale Contract" and "Property Service Contract (Model Text)" have corresponding clauses on this issue. The document stipulates that both parties should make an agreement on parking fees in advance. When signing the purchase contract, the purchaser has the right to decide whether to buy or rent the parking space, and the price of the parking space is agreed by the developer and the property company in the contract.

The key to the dispute between garage and parking space is to clarify the ownership of parking space and garage. When the ownership is determined, the right to use, the right to income and the right to dispose of will be solved. After the founding of People's Republic of China (PRC), China abolished the "pseudo-legal system" during the Kuomintang rule and the "Six Laws Complete Book" and "Civil Code" during the Republic of China. Our country has not yet promulgated its own civil code, and our traditional society has neglected the protection of citizens' private property, so the identification of citizens' private property and the boundary of rights are often in an uncertain state, which is not conducive to the protection and utilization of property. At present, there are generally several theories about the ownership of parking spaces (garages) in residential quarters:

(A) the contract said

This view holds that the ownership of the garage should be determined by agreement. The essential significance of this view is that both parties to the contract negotiate the ownership of the garage by themselves in a fair and reasonable way in an equal capacity. The Property Law stipulates: "The ownership of parking spaces and garages planned for parking cars within the building area shall be agreed upon by the parties through sale, lease or gift. Parking spaces that occupy roads owned by the owners or other venues for parking cars shall be owned by all owners. Judging from the provisions of the Property Law, the ownership of parking spaces and garages in China is determined according to this theory. However, under the current seller's market conditions, it is very likely that real estate developers make overlord clauses by virtue of their strong position, and the possibility of actively asking for consultation with the owners in the contract is also slim. This will be extremely unfavorable to most owners, and it is not in line with the original intention of this view. This view can only be realized when the commercial housing market gradually becomes a buyer's market with development.

(B) Cost allocation theory

This view holds that when real estate developers allocate the construction cost of the garage to the owner's house purchase, the ownership of the garage belongs to the owner, otherwise it belongs to the developer. At present, the real estate price is determined by demand, not by cost. Whether the developer will allocate the construction cost of the garage to the residential sales price is only clear to the developer himself. It is almost impossible for the owner to verify the developer's development cost, and he has no right to check the developer's cost. Because cost is the core business secret of an enterprise, it is very difficult to determine the ownership of the garage on this basis.

(3) State ownership theory

This view holds that the underground garage belongs to the civil air defense project, and should be presumed to be owned by the state according to the relevant provisions of the Civil Air Defense Law (see Wang Liming's On the Ownership of Garage in the Property Law and Related Legal Issues). Article 2 of the Supplementary Notice on Strengthening the Use and Management of Civil Air Defense Projects in Residential Areas issued by Beijing Housing and Land Administration Bureau and Beijing Civil Air Defense Office 1998 stipulates: "Civil air defense state-owned assets are an integral part of national defense assets, and property management fees are not paid if they are not developed and used. The development and use of civil air defense projects shall be paid by the users. The user must bear the property management fee that the property owner should pay, and indicate it in the civil air defense project use agreement and the property management entrustment contract. " With the development of urban commercial housing, the construction of civil air defense projects in China has developed rapidly, and the subject of investment and construction of civil air defense projects has developed from the state as a single investment and construction subject to a multi-investment and construction subject. In this case, it is obviously inappropriate to still think that civil air defence works belongs to the state for three reasons. First, the Civil Air Defense Law does not explicitly stipulate that all civil air defence works is owned by the state. Article 5 of the Civil Air Defense Law stipulates: "The State encourages and supports enterprises, institutions, social organizations and individuals to invest in civil air defense projects through various channels; Civil air defense projects are usually used and managed by investors, and the proceeds are owned by investors. " Here, it is only stipulated that it is used and managed by investors, and the proceeds are owned by investors, but the ownership of civil air defense fortifications is not defined. On the contrary, in the absence of defining ownership, investors should be considered as owners, on the contrary, in the absence of clearly defining ownership, they can be considered as state-owned Second, under the condition of market economy, the most basic principle of defining ownership is still that investors enjoy ownership. The state has not made any investment in civil air defence works, a commercial housing community, so there is no legal basis for claiming ownership. Third, civil air defence works belongs to the state, and the government should undertake the obligation of management and maintenance. But in fact, the management expenses of civil air defence works in residential areas are not borne by the state, but by the developers or owners. Moreover, it is meaningless for developers or owners to bear management fees without ownership.

(4) registration theory

This view holds that the ownership certificate of parking space (garage) belongs to whoever registers it. According to the principle of publicity and public trust in the Property Law, registered parking spaces (garages) must be owned by the registered property owners. However, the current situation in our country is that garages that have not been registered or cannot be registered at all are everywhere in our residential quarters. Obviously, it is difficult and unrealistic to determine the ownership of cars (garages) by this method.

For public residential areas, the ownership of parking spaces is directly related to the immediate interests of owners and all residents in the community. Therefore, there are provisions on this issue in the legislation of various countries or regions, and the legislation of China's property law should be absorbed and used for reference.

(1) Japan

In Japan, all parking lots attached to buildings are divided into two categories: one is outdoor parking lots, which are usually formed by drawing a clear line on the basis of buildings; The other is the indoor parking lot, which refers to the parking lot located in all buildings in the community, generally located on the ground floor or the first or second floor of all buildings in the community, but some are located on the roof platform. Japan's judicial practice and legislation regard outdoor parking lot as a part of * * *, which can set the right to use for a specific owner or people other than the owner, and should publicize the exclusive rights. However, there is no clear regulation on the ownership of indoor parking lots. There are serious differences between the local court and the Supreme Court in Japan, especially on the issue of whether underground parking spaces are legal or exclusive. There is controversy in Japanese academic circles, and the court cases are not the same. In the judgment of 18 in Showa in June, 1956, the Supreme Court of Japan expressed its support for exclusive opinions, which made it occupy an absolute mainstream position in Japanese judicial practice. However, Japanese academic circles believe that because the floor area ratio of the first floor or underground part of a building is not included in the total area of the building, the Supreme Court's reason for determining the underground parking space as an exclusive part is not sufficient, so it is suggested that * * * use part of the exclusive right to use it.

(2) Germany

1Item 2 of Article 3 of the German House Ownership Law, which was revised on July 30, 973, stipulates that "the parking lot marked with permanent landmarks is regarded as an independent room." In other words, "exclusive ownership" can be set up in both the above-ground and underground parking lots, and the burden can be allocated and set independently. (See Chen Huabin's Study on the System of Differentiated Ownership of Modern Buildings, Law Press, 1995, p. 169. Therefore, as an independent property in Germany, the ownership of the garage can be freely sold by the developer to the owners in the community, rather than being an accessory and directly owned by all the owners. Its advantage is to protect the interests of developers and owners who don't need a garage, and they don't have to pay the share of the garage. It should be clear that parking spaces in residential areas are owned by all owners, and owners who enjoy the exclusive right to use parking spaces can freely transfer their right to use them among owners in residential areas.

(3) France

In France, the builders of new apartments have a legal obligation to design parking lots for residents in the building base according to the standard of one household and one space. Academic circles and judicial practice believe that all residential areas and parking areas of buildings are divided into separate real estate, that is, parking spaces must be purchased separately; In addition, people other than residents of all buildings in this area can also buy parking spaces in the base.

(4) America

American law follows two basic principles in the system design of community garage. First, no one except the owner of the community is allowed to own the garage in the community, and second, the garage in the community is not allowed to be bought and sold separately as an independent proprietary part.

It can be seen that the rule design of American law is different from that of German law and French law. First, the American law clearly does not allow people other than community owners to own the garage in the community, which prevents others other than community owners from monopolizing the ownership of the garage in the community and charging high monopoly funds to the owners. Second, it is not allowed to buy and sell garages separately in the community, which effectively avoids the transfer of garage ownership to others other than the owners. Of course, there are garages in the United States that can be bought, sold, leased or mortgaged as an independent and exclusive part, but that means they are built, developed and operated outside the residential area, and they have their own special garages to distinguish all properties.

(1) Ground parking space in residential area

Ground parking space refers to the parking facilities directly set on the ground of residential areas with the approval of the "Construction Project Planning Permit" issued by the government. Generally, it is crossed and zoned. (Chen Huabin: Study on the System of Differentiated Ownership of Modern Buildings, Law Press, 1995, p. 104. After the real estate developer pre-sells or sells the housing units in the commercial housing residential area, the housing units shall go through the initial registration and transfer registration, and the owner of the housing units shall own all the land use rights of the residential area according to the parcel number. Because the ground area where the ground parking space is located is included in the total land area of the community, the right to use this parking space obviously belongs to all the building owners, that is, the owners. Here, all owners have the right to use the parking space instead of ownership based on the following considerations: the object of ownership must meet the independence standard of structure and use, while the ground parking space is only divided by marking, which does not have the shelter required by the building, so it can only be regarded as the object of land use right. The nature of the use of parking spaces can be identified as the exclusive use of * * * parts, that is, according to the law and the agreement between different owners, one or several different owners enjoy exclusive and exclusive use rights to some * * * parts. (Wang Liming: On Property Law, China University of Political Science and Law Press, 1997, p. 39).

The benefits generated by this right of use must be enjoyed by all. According to the reality of our country, we think that the users of ground parking spaces should pay the use fee or rent to the owners' committee, and at the same time pay the custody fee to the property company that provides custody services. Therefore, neither the developer nor the property management company has the right to set up parking spaces on the ground of the residential area without authorization, but only after obtaining the permission of the owners' meeting and signing an agreement with the owners' committee to make a specific agreement on the distribution of relevant income (for example, it can be agreed that rental income can be used to make up for the property management expenses of the residential area) can such ground parking spaces be set up and operated. Otherwise, it will constitute an infringement that has no right to dispose of.

(2) Underground parking spaces in residential quarters

Underground parking space in residential quarters refers to the parking space built by developers using underground space. With the continuous development of social economy and the increasing demand for land, modern architecture has to develop more into space, including above-ground and underground space. It is the full use of underground space that leads to the emergence of underground parking spaces. However, the legal provisions for underground parking spaces in China are still blank. To confirm the ownership of underground parking spaces, we must first have a clear understanding of the right structure of underground parking spaces. The traditional theory of real right holds that as long as it is independent in structure and use, it can become the object of ownership. The underground parking lot has clear boundaries and is separated from the room above by a wall. Become an independent special object different from the house, and can become the object of separate ownership. However, combined with the practice of China's real estate market, if the underground parking spaces are given the only ownership (that is, the ownership of exclusive parts), that is, the real estate developers are given the full ownership of the underground parking spaces, it will lead to obviously unfair results. The reason is that the construction area of underground parking spaces is generally not calculated, that is, the parking spaces have not obtained the corresponding share of land use rights. According to the principle of "no separation of premises" in China, how can there be a house without land? If you can't get the property right certificate when you register the transfer, your legal rights are attached to the building whose plot ratio is calculated (Wang Liming: On Property Law (Wang Liming: On Property Law), China University of Political Science and Law Press, 1997, p. 400. )。 In addition, because this parking space is built on the land owned by all owners, real estate developers without land use rights cannot obtain property rights. Therefore, in practice, the clause that "the property right of the parking space belongs to the seller" agreed by the developer in the sales contract should be invalid. The rights and interests of such underground parking spaces should be enjoyed by the owners of the community, and developers or property management companies have no right to dispose of them without authorization. Of course, with the consent of the owners' meeting, developers or property management companies can rent parking spaces according to the authorization of the owners' meeting, and the rental income belongs to all owners to make up for the property management expenses. At the same time, the user of the parking space must pay the custody fee to the property company that provides custody services. Of course, the construction area of underground parking spaces should be treated as a special case of building floor area ratio calculation. These underground parking spaces are built according to the planned use specified in the planning permit for construction land, and should be included in the whole construction area like above-ground buildings. So this kind of parking space can have independent ownership. The developer of this underground parking space has the right to sell or rent it. Although the owners who own property rights through the sale do not have to pay parking fees, they should still pay property management fees or vehicle care fees on schedule.

(3) Overhead parking spaces on the first floor of the building

The overhead parking space on the first floor of a building refers to the parking space formed by overhead on the first floor of the building. Under the current legal system of real estate management, the construction area of the overhead parking space of the first floor building is not counted, and the corresponding share of land use right area cannot be obtained. Its legal right is attached to the calculation of buildings (area) in floor-area ratio, and it is also the object of residential housing units. Therefore, the ownership of the overhead parking space on the first floor of the building is the same as that of the underground parking space, so I won't go into details here.

(4) Parking spaces on the roof platforms of buildings

The parking space on the roof platform of a building refers to the parking space set on the roof platform of a residential commercial house. Although there is no universal parking space on the roof platform of buildings in China at present, with the increasing shortage of parking spaces, there will be more and more disputes about such parking spaces. The ownership of the roof platform is also controversial. Some people think that the roof platform should be owned by the building owner; Some people think that it should belong to the ownership of the penthouse, because the appendages of the penthouse belong to the penthouse owner. We know that the use of the roof platform is more about its space, and this space obviously belongs not only to the owner of the top floor, but to all the owners of the building. Therefore, the right to set up parking spaces in this space should also belong to all owners of the building. Neither the developer nor the property management company has the right to set up parking spaces on the roof platform without authorization, but should negotiate with the owner of the building and obtain the consent.

Analysis of the legislative connotation of Property Law and personal suggestions;

Those of us who have studied law know that the core task of civil legal norms is to coordinate interest relations, and legislators always set corresponding legal norms according to different types of interest relations. The interest relationship coordinated by civil law mainly includes the following three types: the interest relationship between civil subjects, the interest relationship between civil subjects and national interests (in this paper, civil subjects only represent a single individual or organization, not the country), and the interest relationship between civil subjects and social public interests (Wang Yi's Preliminary Thinking on the Academic Direction of Civil Law in China-Overemphasizing the defects of institutional research and overcoming them [J]). Law and Social Development, 2000. In general, the interest relationship between civil subjects will be adjusted through arbitrary norms, advocacy norms or mixed norms; The relationship between the interests of civil subjects and the interests of the state and the public is adjusted through mandatory norms.

First of all, it is necessary to clarify the interest nature of the parking space ownership dispute, that is, whether the interest of its adjustment is between civil subjects or between civil subjects and the state and society. If it is an interest dispute between civil subjects, it should be adjusted by arbitrary, assertive or mixed norms; If it is the relationship between civil subject and national and social interests, it should be adjusted by mandatory norms. The dispute over the ownership of parking spaces cannot be generally called the interests between civil subjects or the relationship between civil subjects and the interests of the state and society, because the situation of parking spaces is quite complicated. If parking spaces can be registered, the interests of registered owners and developers only represent their individuals or organizations. Therefore, the relationship between the developer and the owner who bought the parking space is the relationship between civil subjects, and the conflict of interest between them is resolved through consultation, that is, the law does not adopt mandatory laws to adjust their relationship.

But at present, the vast majority of residential quarters in China are the interests of the owners and developers of the whole community. Should it belong to the relationship between civil subject and social public interest? Do the interests of all owners in the community belong to the public interest? What is the public interest? For this question, we must see whether there is a majority of people who agree with something. If it is recognized by most people, it belongs to the "public interest"! On the other hand, if most participants in something don't agree, it doesn't belong to "public interest". Having said that, the connotation of public interest has been very clear. The so-called "public interest" must be combined with public decision-making. What most people recognize is public interest, but what most people don't recognize is not public interest (see what is social public interest by Wang [J] Journal of Peking University 200 1 04).

Therefore, what is public interest is a matter of fact judgment, which must be decided by the public involved in the matter in combination with specific matters. It is impossible and unrealistic to list in advance what is public interest in legislation. It can be concluded that the interests of all community owners are recognized by most people (relative to a single developer), so they should belong to the category of social public interests, so they should be regulated by mandatory laws. Paragraph 2 of Article 76 of the Property Law gives the parties the right to choose independently, which is an arbitrary norm, so it deviates from the essence of the norm, so I think it is wrong. Professor Cui Jianyuan, who has been teaching at the Law School of Tsinghua University for a long time, also believes that the property law should not stipulate' agreement priority', but should find another way. (Wang Jin's Property Law analyzes the ownership of public property) From the perspective of foreign systems, no country deals with the ownership of garages purely by agreement, but mostly by "law" plus "agreement", with law taking precedence and agreement as a supplement. Therefore, I think it may be more beneficial to protect the interests of owners and explain the relationship between parking spaces and building ownership more reasonably if the law forces parking spaces to be owned by owners. Mandatory laws should be applied to clearly stipulate that the ownership of parking spaces belongs to all owners. Only in this way can developers avoid taking advantage of their own occupation of the seller's market and exploiting legal loopholes to harm the interests of the majority of owners. Only by truly making the agreement legal can we safeguard the most fundamental interests of the majority of owners in China.

To sum up, in the field of condominium ownership, the ownership of parking spaces (garages) is very important, which involves the interests of all condominium owners. Only by defining clear collective rules and determining the ownership of parking spaces (garages) can we protect the legitimate rights and interests of owners in different regions and build a harmonious society in reality.

References:

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