Property contract dispute case

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Property contract dispute (1)

Case analysis of property contract disputes

After years of development, the property management service industry has made remarkable achievements in promoting the modernization and specialization of urban residential district management, but because it is still in its infancy, the relevant legal system is still far from perfect, resulting in a lot of contradictions. As a result, the number of cases brought to court has also surged for many years, and the problems reflected from it need to be paid attention to and solved urgently.

First, the basic situation and characteristics of the first instance of property management disputes.

(1) The number of cases has increased year by year, and the proportion of real estate cases has gradually increased.

Property management involves all aspects of property, and the related system is not perfect. Due to property management problems, complaints to housing management and price departments have been high. After the competent authorities failed to completely resolve the dispute, the parties turned to the court for prosecution. In recent years, all kinds of disputes caused by property management have grown rapidly, and the proportion in real estate cases has gradually increased. According to statistics, in 2006, the Xiangyang District Court of Jiamusi City accepted 24 cases of property management disputes, accounting for 8.2% of all real estate cases; In 2007, 38 cases were accepted, an increase of 36.9% over 2006, accounting for10.4% of all real estate cases; As of June 15 this year, 27 cases of property contract disputes have been accepted. The surge in the number of property management disputes is closely related to the vigorous development of the real estate market and the frequent deepening of property management activities in Jiamusi area in recent years.

(2) The subjects and types involved are complex, which is beyond the scope of contract disputes.

In the first half of 2008, Xiangyang court accepted 20 cases of property management disputes, with the largest proportion of disputes between owners and property management companies, reaching more than 90%, followed by disputes between developers and property management companies or owners, accounting for about 5%, followed by disputes between owners' committees and property management companies or owners. The causes of disputes and the types of cases are diverse. From the initial property management companies to recover property management arrears from owners, it has developed into various types: some owners think that the service level of property management companies is not high or unreasonable charges, and demand a refund or reduction of property fees, and some owners think that the previous property management contracts have been

After the expiration, the property management enterprise has no right to charge the property management fee for a refund. There are cases where the owners' committee dismisses the property management company, cases where the owners think that the calculation of public utility fees is unfair and require re-calculation, cases where the owners think that the property management company has defects in performing property services and requires compensation for personal and property losses, and so on.

(3) There are many series of cases, the success rate of mediation is low, and the contradictions between the parties are deadlocked.

In some property management disputes, when property management enterprises recover property fees as plaintiffs, they often sue several or even dozens of owners as defendants at one time. In order to ensure the identity of the trial results, the court will hand over such cases to the same collegiate bench for trial and judgment at the same time, which makes the already stretched human resources even more tense. At the same time, some cases involve the handling of similar situations in the same community, and the work is slightly negligent, which can easily lead to mass incidents. In addition, due to the fact that most of these cases take the property management company as the plaintiff, the contradiction between the property management company and the owner is fierce for fear of the chain reaction after mediation concessions, and the success rate of property management dispute mediation is relatively lower than other civil cases.

(four) the legal relationship is complex and the trial is difficult.

There are many stakeholders involved in the legal relationship of property management: the parties involved in the property management litigation include owners, property users or owners' committees, as well as property management enterprises and developers, which may involve the relationship between owners and property users, property management service contracts between owners or users and property management enterprises, tort relations, and the relationship between owners or users and industry committees. This kind of dispute is closely related to China's housing system reform and local policies in recent years, and has certain historical stages and regional characteristics. However, the effectiveness of local normative documents is not high, and the court cannot handle such cases on this basis, which brings certain difficulties to the correct application of the law.

Second, the cause analysis of property management disputes

(1) The lagging property management legislation and imperfect relevant laws and regulations are the fundamental reasons for the increasing number of property management disputes. At present, the property management regulations promulgated in China are not operable, and the court can only handle them according to the basic principles of the General Principles of the Civil Law and the Contract Law, referring to departmental rules and local regulations, which are vague and even contradictory, such as the main body of the first phase property maintenance fund. There is an obvious conflict between the State Council's Property Management Regulations and the Ministry of Construction's Measures for the Management of Maintenance Funds for Residential Building Facilities and Equipment, which makes the court lack a clear basis for handling such disputes. Another example is the qualification of the litigation subject of the industry Committee. The Supreme People's Court (2002) Minli Dazi No.46 reply has made it clear that the owners' committee has the qualification of litigation subject, but the problem is that the industry committee does not own its own property. As a defendant, it is difficult to take responsibility, which violates the principle of equality of parties in civil proceedings and makes the relevant trial work quite difficult. The imperfection of substantive law and procedural law directly affects the correct application of law.

(2) Between the property construction unit and the property management enterprise? Cutting is still messy? Interest relationship is the root of property management disputes.

Article 21 of the State Council's Property Management Regulations stipulates that before the owners and the owners' general assembly hire property management enterprises, the construction unit shall sign a written contract for the preliminary property management services. In practice, the developer unilaterally designates the prophase property management enterprise according to this article, and the agreed service period is generally long, so the developer has the right to designate the property company and determine the amount of the property management fee, but does not undertake any obligations; The preliminary property service contract was drawn up by the developer and the property company, and the owner could only accept it passively. As a considerable number of property management companies belong to developers, it is difficult for property management companies to check the owners in the process of taking over the property, which has laid a hidden danger for future disputes. Nearly half of the property management disputes accepted by Xiangyang court are problems left over by developers, such as weak awareness of after-sales service, imperfect supporting facilities and poor housing quality, which lead to various problems after the owners move in. Owners often regard developers and property management companies as a whole and refuse to pay the corresponding property management fees when negotiations with developers fail.

(3) The dislocation of the role of the property management company and the irregular service behavior are the direct causes of the property management disputes.

As a party to the legal relationship of property management, property management enterprises should provide property management services according to the entrustment of the owners and try their best to safeguard the rights and interests of the owners. There is an equal civil subject relationship between the owner and the property management enterprise. However, in practice, some property management companies put themselves above the owners, using improper means to force the owners to obey the management, ignoring or even infringing on the rights and interests of the owners, and intensifying contradictions. A few property management companies do not have the corresponding property management conditions or qualifications, and the corresponding technicians do not have employment certificates. Some property management companies are small in scale, high in cost, poor in economic benefits and low in service quality.

(D) The poor development of owners' self-governing organizations and their behaviors need to be standardized, which is an important factor in the increase of property management disputes.

The State Council's "Regulations on Property Management" clearly stipulates the establishment and operation of owners' self-governing organizations, owners' congresses and industry committees. However, from the overall situation, the development of owners' autonomous organizations is far from reaching a healthy and perfect standard. Even though the owners' committee has been established, there are still some problems such as unclear economic relations, unclear rights and obligations, unsatisfactory functions, etc., which lead to irregular charging behavior of some property management enterprises, and the owners cannot effectively exercise their rights of selecting people, making decisions and supervising property management. Even some industry committee members can't be self-disciplined, threatening property companies on the grounds of satisfying personal interests, thus affecting the normal conduct of property management and the interests of most owners. In addition, it is difficult for owners to reach an agreement on the same interests quickly, which is also a major reason for the unsatisfactory operation of owners' autonomous organizations. In the case of property management disputes accepted by Xiangyang court, there are cases where the owners of large residential quarters disagree on whether to continue to hire property management companies, which leads to some owners demanding the cancellation of property management companies and some owners maintaining the status quo.

Three, to solve the property management disputes countermeasures and suggestions

(A) improve legislation, so that there are laws to follow.

Referring to the advanced legislative examples of relevant countries, the Law on Differentiated Ownership of Buildings and other laws and administrative regulations will be promulgated as soon as possible, which will stipulate the contents of various rights and obligations in the legal relationship of property management and clarify the litigation status and relief channels of civil subjects.

(two) clear the relationship between developers and property management companies, to ensure that the hiring of property management companies truly reflects the wishes of the owners. Because the developer entrusts the subordinate property management company to carry out property management, it has brought many disadvantages. It is suggested that the relevant departments standardize the bidding procedures of the previous property management, strengthen supervision and management, and ensure the transparency and fairness of the bidding work. When the conditions are ripe, regulations can be issued and avoidance system can be implemented to restrict the property management enterprises under the developer from participating in the pre-commissioned bidding activities of the developer, so as to eliminate the interest contact channels between the developer and the property management enterprises as much as possible.

(3) Strengthen the supervision of administrative departments and introduce third-party agencies to evaluate and monitor property services.

The management department related to the property management bank should fully perform the regulatory duties entrusted by law. At present, it is mainly necessary for the competent price department to strengthen the frequency and intensity of inspection and supervision of property service charges. At present, the scope of government-guided prices for property service charges has been reduced, while the scope of market-regulated prices has been expanded, and the relevant laws and regulations have not stipulated the consequences of violating the guided prices, resulting in the property service charges in some communities being much higher than the government-guided prices, which has led to explosive growth in disputes. In this case, the price and housing management departments should intervene in time to guide the owners and property management companies to reach an agreement on property charging standards in order to reduce disputes. In addition, it is suggested to introduce a third-party organization with evaluation and monitoring functions to identify the property service standards and the qualification grades of property management companies, so as to protect the legitimate rights and interests of owners and property management companies and promote the benign operation of the property management market.

(4) Improve the mechanism and system of owners' autonomy, and strengthen the guidance of relevant departments and urban grassroots organizations to owners' autonomy organizations. We can consider designing a system, such as stipulating that the owners' meeting should be convened by a special intermediary agency to ensure the smooth convening of the owners' meeting, setting penalties for developers and property management companies that do not cooperate with or hinder the convening of the owners' meeting, and further clarifying the rights and obligations of owners' committees and members. Real estate administrative departments, residents' committees and public security departments have guidance,

It is necessary to establish a working contact mechanism and supervise the responsibilities of the owners' autonomous organizations. At present, it is urgent to clarify the relationship between owners' autonomous organizations and urban neighborhood committees, so as to try our best to solve the problem that the general election of industry committees in some residential quarters is not standardized and causes social instability.

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