Without a contract, can the property company sue the owner?

In recent years, property services have entered Qian Qian Wanjia Community. In order to protect the rights and interests of all parties, property service contracts will be signed. Does the property company have no contract to sue the owner? Is the property contract exclusive jurisdiction? What are the legal characteristics of property disputes? Next, I would like to introduce to you the knowledge about whether a property company can sue the owners without a contract, hoping to help you solve the corresponding problems.

A, the property company can sue the owner without a contract?

If the property company has not signed a property contract, but actually provided property services, it can also sue when the owner damages its rights and interests, but it is necessary to prepare for the prosecution first.

1, investigation and evidence collection. First of all, one or several people should do a good job of taking photos and videos. In the process of taking photos and videos, the name or personnel of the property management company must be photographed or entered. Sometimes, in order to prove the property company's continuous breach of contract, it is necessary to take photos and videos for several days.

2. Ask the lawyer about the legal relationship. You can consult the law firm about the relevant legal relationship and get an accurate understanding.

3. Set aside a certain amount of time. Evidence collection and litigation take a lot of time and are very complicated. We should be prepared psychologically and in time.

Then write a civil complaint, draw up a lawsuit request and list relevant evidence.

Article 108 of the Civil Procedure Law of People's Republic of China (PRC) stipulates that prosecution must meet the following conditions:

(1) The plaintiff is a citizen, legal person and other organization that has a direct interest in this case;

(2) Having a clear defendant;

(3) Having specific requests, facts and reasons;

(4) Belonging to the scope of civil litigation accepted by the people's court and the jurisdiction of the sued people's court.

2. Is the property contract under exclusive jurisdiction?

(1) Exclusive jurisdiction over property disputes conforms to the legislative spirit of the Civil Procedure Law.

According to the provisions of China's Civil Procedure Law, lawsuits filed for real estate disputes, port management disputes and inheritance disputes shall be under the jurisdiction of the people's courts in the relevant places or the places where the main heritage is located. Article 305 of the Supreme People's Court's Opinions on Several Issues Concerning the Application of the Civil Procedure Law of People's Republic of China (PRC) stipulates: "According to the provisions of Articles 34 and 246 of the Civil Procedure Law, the parties may not choose another country's court for jurisdiction by written agreement, except for cases where arbitration is decided by agreement." The particularity of this kind of cases lies in that the jurisdiction of the court where one or several connection points of a certain kind of cases are located is determined by regional legislation, and the court where the property is located in the case of property disputes reflects its special connection points. In other words, the content of property management and service mainly revolves around the property, and the determination of the rights and obligations of owners and property service companies cannot be separated from the property. Property refers to houses and their ancillary equipment, facilities and related sites, so it is more legitimate for disputes over property service contracts to be under the exclusive jurisdiction of the people's court where the property is located.

(2) Exclusive jurisdiction is applicable to property disputes and conforms to the basic principles of civil jurisdiction.

The academic circles of civil procedure law in our country have basically formed a relatively unified view on the principle of jurisdiction, which is beneficial to the parties in litigation, to the people's courts in hearing cases and executing judgments, to ensuring the fair trial of cases, to ensuring the balance, certainty and flexibility of the workload of courts at all levels, and to safeguarding national sovereignty. Some scholars believe that the design of jurisdiction system in China should implement six principles: fair jurisdiction, definite jurisdiction, actual control, selective jurisdiction, constant jurisdiction and rigid jurisdiction. Considering the exclusive jurisdiction of property dispute cases with the above main principles and the principle of unifying legal effects and social effects, it is not difficult to draw the following conclusions:

1. Property disputes that conform to the principle of judicial fairness are subject to exclusive jurisdiction, which effectively overcomes the problem that the parties use the agreed jurisdiction system stipulated in the Civil Procedure Law to evade the supervision and management of the functional departments of the people's government where the property is located. The people's courts treat the parties equally in a neutral position, which is fairer in terms of the design of jurisdiction system and the protection of the legitimate rights and interests of the parties.

2. The functional departments of the local people's government where the property is located have an important say on whether the owners' assembly or owners' committee or property service enterprises infringe on the owners due to their responsibilities. If such disputes are tried by a court in a different place, it will not be convenient for the owners to safeguard their legitimate rights and interests, nor for the functional departments of the people's government to exercise their administrative powers, nor for the people's courts to coordinate administrative relations, ascertain the facts of the case and exercise their judicial power.

3. The principle of actual control, that is, the principle of effective control, means that the court should have actual control over the cases under its jurisdiction. If the court cannot conduct a fair trial and effective execution of a specific case, it should not exercise jurisdiction over the case. This principle is based on the actual control of the person and property by the parties, and its essence is the jurisdiction over things. In essence, the so-called property jurisdiction in China is different from "personalizing or endowing property with certain personality characteristics, and property replaces people to become defendants in litigation". According to the provisions of the Civil Procedure Law, only natural persons, legal persons or other organizations can become parties to civil litigation, and in essence they are still under the jurisdiction of people. Trial practice has proved that only the people's court where the property is located can control the person and property of the parties to the property dispute most effectively, so as to achieve the best litigation benefit.

4. Legal certainty in accordance with the principle of determining jurisdiction is one of the basic values of legal existence. Determining jurisdiction is the inherent requirement of the protection of litigation right, the consent of all parties, the constitutional guarantee for the court to exercise judicial power, and the common pursuit of the two legal systems. The civil law system believes that the jurisdiction rules must be clear and mandatory, so that the parties can know which court to sue in, and should not leave the court room for discretion. The determination of the jurisdiction of property disputes is to clearly determine the jurisdiction of the court by legislation, so that the court's judgment on jurisdiction directly comes from the provisions of the law rather than the court's own will, so that the parties to malicious litigation have no legal loopholes to drill, and the legal effect is self-evident.

5. Abiding by the principle of rigid jurisdiction means that the rules of jurisdiction are authoritative and serious, and shall not be violated at will, otherwise it will bear unfavorable procedural consequences such as invalid judgment and procedural costs. In the transfer of jurisdiction in China's civil procedure law and the relevant judicial interpretation in the Supreme People's Court, violation of jurisdiction does not necessarily lead to invalid judgment, and the judgment can only be revoked if there are preconceptions and errors in jurisdiction and judgment. Applying exclusive jurisdiction to property disputes is the best way to overcome the lack of legislation.

6. Long-term trial practice conforms to the principle of unity of legal effect and social effect, warning us that lax enforcement leads to poor trial effect, and relevant legislation is either outdated or has defects and loopholes. As far as property disputes are concerned, it is generally inconvenient and unnecessary to examine other legal facts according to the provisions of China's Civil Procedure Law and the agreement of the parties. But judging according to law will bring bad results.

(3) The exclusive jurisdiction over property disputes has precedents abroad.

According to the provisions of Japan's Civil Procedure Law, the lawsuits listed in the following items can be brought to the court with jurisdiction: a person with a firm or business office can bring a lawsuit related to the business of his firm or business office, subject to the location of the firm or business office; Litigation about the place where the infringement occurred, the place where the infringement occurred; Litigation on real estate, location of real estate, etc. In the course of litigation, when it is necessary to make a judgment on whether the legal relationship is established, the parties may extend their request to make a judgment to confirm the legal relationship; However, this restriction does not apply when it is confirmed that the request belongs to the exclusive jurisdiction of other courts. The defendant may file a counterclaim with the court to which this lawsuit belongs before the end of the oral argument, but the claim related to the subject matter of this lawsuit or the defense method is the subject matter. However, this restriction does not apply to counterclaims that are under the exclusive jurisdiction of other courts (except those decided by the parties through agreement in accordance with the provisions of Article 11 of this Law), or where litigation is greatly delayed due to counterclaims. German and Taiwan Province civil procedure laws have similar provisions.

3. What are the legal characteristics of property disputes?

(1) Building ownership is a special property right.

With regard to the three parts of differentiated ownership of buildings, the exclusive part is the same as individual ownership, and generally has independent rights of possession, use, income and disposal; * * * The entitled part can be divided into * * * and * * * and * * * according to the shares; * * * Same as management affairs, that is, * * * * The protection, management and repair of matters related to the use of the whole community or a building are the same. Compared with other real rights, its particularity lies in: the use and punishment of exclusive right must be punished together with some parts of * * * *; * * * part cannot be punished separately; * * * You can't give up the right part on the grounds of giving up management obligations.

(B) Property services contracts can not be separated from the regulatory activities of the local government.

The administrative regulations and departmental rules of the State Council give the relevant administrative departments of the people's governments at all levels the power of supervision and management. For example, in the supervision and management subject of property management, the the State Council construction administrative department is responsible for the supervision and management of property management activities throughout the country; The real estate administrative departments of local people's governments at or above the county level shall be responsible for the supervision and management of property management activities within their respective administrative areas. When setting up the owners' assembly and hiring the industry committee, the owners in the same property management area shall set up the owners' assembly and elect the owners' committee under the guidance of the real estate administrative department of the district or county people's government where the property is located; The owners' committee shall, within 30 days from the date of election, file with the real estate administrative department of the district or county people's government where the property is located. In addition, the competent departments of administrative organs at all levels have the functions of supervision, management and guidance on the selection of property management personnel, the management and use of overhaul fund, and property charges.

(3) Owners' rights protection requires the functional departments of the people's government where the property is located to perform their duties.

According to the Property Management Regulations of the State Council, the decisions made by the owners' congress and the owners' committee violate the provisions of laws and regulations. The real estate administrative department of the people's government of the district or county where the property is located or the subdistrict office or the people's government of a township shall order it to correct or revoke its decision within a time limit and notify all the owners.

According to the relevant laws and regulations of our country, the property company has not signed a property service contract with the owner, but as long as it provides property management services, it is considered that there is a de facto property service relationship between the property company and the owner, and the property company can sue the owner.