Can you really not pay property fees without an industry Committee?

-Discuss with Lawyer Qin Bing Author: Lawyer Sun Jianjun of Beijing Hongwei Law Firm recently came across an article by lawyer Qin Bing, saying that "without an industry committee, you can't exercise public rights and interests, and you can't pay property fees", which was deeply surprised. As a lawyer who has been engaged in real estate legal services for a long time, I can't agree with Mr. Qin's point of view, and even think that this point of view has emotional factors, which sends the wrong signal to the owners who don't understand the property management policies and regulations. And there is a suspicion that property management will go astray. Undoubtedly, the community set up an owners' committee, and the owners' committee signed a property service contract with the property company. The property management company shall perform its duties in accordance with the rights, obligations and service standards agreed in the service contract and collect fees from the owners. The owners' committee supervises the work of the property management company according to the service contract, and the owners pay the property fees according to the agreement, which is a standardized mode of residential property management. In this mode, the rights and obligations between the property company and the owners are clear, and the property management of the community can be in a normal state. Even if there is a dispute, both parties can follow certain principles and find relevant basis in the property service contract. However, as we all know, owners' committees have not been set up in many residential areas in Beijing, and these residential areas are provided with property management services by pre-property management companies, that is, as lawyer Qin Bing said, these property management companies provide de facto property management services. Then, how should we treat this de facto property management service from the legal point of view? Can this de facto property management service become the basis for property management companies to collect property management fees? China's "General Principles of Civil Law" stipulates that civil juristic acts should follow the principles of consistency of rights and obligations, equal compensation and fairness, that is, what is usually said is always rewarded. Since the property company provides the corresponding service, it has the right to obtain the consideration of this right, and therefore has the right to ask the beneficiaries of this service to pay the consideration. Judging from the spirit stipulated in the Regulations on Property Management, the pre-property management company is generally selected by the development and construction unit when the property is completed and sold, and signed the pre-property management service contract with the development and construction unit. Therefore, legally speaking, the property management company has the legal status of implementing property management services in the community. There are only two preconditions for the disappearance of this identity. First, the term of the previous property contract has not been renewed; Second, the community set up an owners' committee, and the owners' committee signed a separate property service contract with the new property management company. "Opinions of Beijing Higher People's Court on Trial of Property Management Disputes (Trial)" stipulates: "After the expiration of the property service contract, if both parties fail to terminate the contract and continue to perform the contract, the contract shall be deemed to be automatically extended." "Although the property management enterprise has not signed a written property service contract with the owners' committee, if the owners actually accept the property service, the property management enterprise may require the owners to pay the corresponding property service fee. If the two parties have not agreed on the standard of property service fee, the court may determine the property service fee that should be paid with reference to the charging standard set by the government or similar property service fee standard. "It can be seen that the statement that the owners' committee can not pay property fees without being established is not only without legal basis, but also obviously violates the existing laws and regulations. Some people may say: we didn't ask the property management company to provide services in the early stage, but the property management company forced us to provide services. Of course, we can't accept it. Of course, judging from the provisions of the Consumer Protection Law, it is forbidden to buy, sell or provide compulsory services. However, there is no definite conclusion as to whether the property management service should be within the adjustment scope of the Consumer Protection Law, because the property management service is different from other services people encounter in their daily lives, and this service has its particularity, that is to say, it cannot be "cut the gordian knot". As soon as you stop, there will be an unattended vacuum area in the public facilities and public parts of the community, and the lives of residents in the community will be substantially affected, such as: garbage is left unattended, the order of the community is left unattended, the pipeline equipment is left unattended, and the septic tank is left unattended. If there is no heating in winter, there is no scientific and reasonable mechanism to deal with this situation. So, this happened. In practice, although there are cases where residents maintain community order by themselves, this situation can only be an expedient measure, which can only temporarily solve a few problems and cannot fundamentally reverse the chaotic situation. Therefore, it is impossible to stop, even the property management company can not stop, so it may bear the corresponding losses to the owners. Because China's "Contract Law" stipulates that the parties to a contract should not only perform their contractual obligations normally, but also follow the principle of good faith and fulfill their obligations of notification, assistance and confidentiality according to the nature, purpose and trading habits of the contract. Property management services have the characteristics of discontinuity and continuity in the work, and will inevitably stop before the new property manager is determined and completely handed over, which will inevitably lead to the loss of the interests of the owners. Even if there is an owners' committee, we must be cautious when exercising the power to dismiss the property management company. It must also be carried out under the premise of not affecting the interests of the owners of the community. You can't be emotional, the exercise of power is a rational process, and you can't act rashly because of likes and dislikes. Some people may say that the existing policies and regulations are unreasonable, and since property management services are services, they should be adjusted by the Consumer Protection Law. I totally understand. As a new service form, property management has been explored for a long time and some related laws and policies have been issued, but it is still not perfect. There are still many problems, which belong to the blank area of legal policy, which make these problems appear in practice without rules and regulations. Even some existing policies and regulations are difficult to operate, which makes owners, property management companies and even developers feel helpless when dealing with property management problems, thus causing a lot of disputes. This requires relevant managers to actively explore experience, and from the perspective of safeguarding the legitimate rights and interests of owners, property management companies and developers, formulate a set of scientific, reasonable and humanized property management laws and regulations system, so that the interests of all parties can be protected and reflected. Of course, this needs a process. The author suggests that owners should rationally safeguard their rights and avoid impulsiveness, because impulsiveness can't solve any problems, and seek to safeguard their legitimate rights and interests under the current effective legal framework. In fact, under the current legal framework, owners can also find channels and methods to safeguard their legitimate rights and interests, and it is not without methods. It is incorrect to say that they cannot exercise their rights without the owners' committee. It is suggested that the property management company should recognize the truth that the owners are their parents, think about what the owners think, be anxious about what the owners are anxious about, earnestly perform the contract, provide high-level property services and strengthen communication with the owners. Even if there is something wrong with the work, it doesn't matter if the owner is dissatisfied. Being brave after knowing shame and improving work will definitely win the trust of the owners. Because the owner's dissatisfaction and complaints are not for finding fault, but for the quality of life. A property company that wants to gain a foothold in the market should be able to understand this truth; Advise developers that you can hire a property management company yourself, but this behavior is a continuation of your business reputation. If we can urge the subsidiaries to provide quality services to the owners, we can not only make up for the shortcomings left by the development, but also expand the brand awareness of the developers step by step. Otherwise, it will become an incentive for owners to increase their hatred for developers. Then, the idea of making more money from the owners cannot be realized. In fact, as long as your service is in place. The owner is willing to pay again.