Graduation thesis on legal issues of property management

Research on Hot Issues of Property Management Law Property management is an inevitable product of the development of modern cities and real estate economy to a certain extent. As a new professional industry, it is still a brand-new field for China law. There is no national legislation on property management in China, only some administrative regulations, departmental regulations, local regulations and rules with different legislative skills and legislative authority. At present, with the rapid development of China's real estate industry, legal issues in property management need to be discussed and studied urgently, and property management legislation needs to be improved urgently. This paper analyzes several hot issues in property management in Qingdao and even the whole country for reference in legislation or practical operation. First, the basic legal relations and legal adjustment principles in property management. The legal relationship involved in property management is quite complicated, mainly including the following three basic legal relationships. 1. Entrustment contract relationship of property management. That is, the property management company accepts the entrustment of the owners' committee or the real estate development company to manage the property, and forms a legal relationship with each other. It is the most basic legal relationship in property management. 2. The legal relationship of administrative management in property management. Refers to the administrative organ's legal control or adjustment of the legal relationship between property management activities or property management enterprises, owners' committees, owners' congresses and other subjects. For example, the legal regulation of early property management activities, the establishment of owners' committees, property management fees, and the qualifications of property management enterprises. 3. Civil legal relationship between owners. Mainly refers to the owners' convention, the articles of association of the owners' committee and the basic system of property management. According to the relevant regulations, the property is managed through democratic consultation, so as to realize the autonomous management of the property community. The author believes that property management has the dual characteristics of safeguarding private interests and public interests. For complex legal relations, legal regulation should be based on owner autonomy, and at the same time, government regulation and supervision should be properly strengthened. In the legal relationship of property management entrustment contract, the content, standard, method and cost of property management service should be based on the principle of consensus between the owner and the property management company. At present, the local laws and regulations of our country all implement government-guided price or government pricing for property charges, which is only a transitional product of the initial development of property management in our country. With the development of social economy and the improvement of people's living standards, the market should be gradually adjusted to improve the level and efficiency of property management. For the preliminary property management activities, the convening of the owners' meeting, the establishment of the owners' committee and the qualification examination of the property management company, based on the protection of the interests of the owners and the particularity of the above-mentioned behaviors, government management and legislative regulation should be appropriately strengthened. For the legal relationship between owners, we should adhere to the principle of autonomy through consultation among owners, and allow owners to increase or exempt relevant rights and obligations by formulating owners' convention, articles of association of owners' committee and basic rules of property management, so as to realize active and effective property management. Second, the litigation status of the owners' committee. The owners' congress is the authority in the property management area, and the owners' committee is the executive body of the owners' congress. Its members are elected by the owners' congress, representing the interests of all owners and safeguarding their legitimate rights and interests. This system design has realized and guaranteed the democratic and efficient management of public affairs by many owners. According to the owners' convention and the articles of association of the owners' committee, the owners' committee has the right to make independent decisions on the internal affairs of the property management area, but can it directly file a lawsuit on behalf of all owners? Here, it is necessary to discuss the legal status of the owners' committee. In practice, it is very common for owners' committees to sign property management contracts with property management companies on behalf of owners, which mainly stems from the recognition of local laws and regulations. And whether the owners' committee can directly file a lawsuit against the parties who infringe on the interests of the owners on behalf of the owners? To solve this problem, we should analyze it from several levels. First of all, in what capacity does the owners' committee participate in the litigation? Personally, the owners' committee is not an enterprise or a corporate body. Some local laws and regulations directly define the owners' committee as a corporate body, which I don't think is appropriate. Article 7 of the Regulations on the Administration of Registration of Social Organizations stipulates that social organizations must have the ability to bear civil liability independently. The owners' committee itself does not have its own independent property, and the property management office space and maintenance funds belong to all owners. Then, in what capacity should the owners' committee participate in the litigation? The author thinks that it can be defined as other organizations to participate in litigation and protect the interests of owners in legislation. Secondly, is the owners' committee directly the plaintiff or the owner's agent? The purpose of the owners' committee's prosecution is not for their own rights and interests, but mainly to safeguard the interests of all owners. Therefore, whether all owners have property or some owners' rights and interests are infringed, the owners' committee can only participate in the litigation under the authorization of all owners or some owners. Finally, how does the owner authorize the owners' committee to represent the lawsuit? For the * * * rights of all owners, litigation can be conducted according to the provisions of the owners' convention or the articles of association of the owners' committee, or the decision can be made directly or at the owners' meeting, and the judgment result is binding on all owners. When the rights and interests of some owners are infringed, they must be specifically authorized separately. In any case, the above-mentioned relevant authorization documents, or the owners' convention or the articles of association of the owners' committee or the owner's power of attorney shall be submitted to the court. In view of this, future legislation should directly and clearly stipulate the following contents. 1, or legislative provisions: the owners' committee may exercise the following rights according to the provisions of the owners' convention, the articles of association of the owners' committee and the owners' meeting: to represent all owners in litigation and entrust lawyers to participate in litigation. Of course, the owners' convention and the articles of association of the owners' committee should also formulate relevant procedures accordingly, such as deciding the proportion of voting rights in litigation or choosing lawyers. 2 or legislation: when the rights and interests of all owners are infringed, the owners' committee has the right to directly file a lawsuit, and all owners bear the consequences or responsibilities. Only in this way, can we avoid the cumbersome procedures of owners authorizing litigation one by one, save litigation costs and realize the efficient operation of property management. Three, the legal status and legal relationship of the lessee in the property management. As we know, the owner refers to the owner of the house. Based on the identity of the property owner, a property management company is hired to receive property management services through the owners' management committee. As a non-property user, what rights and obligations does the lessee have in property management? What is the basis for exercising their rights and obligations? Some local laws and regulations stipulate that non-owner users and owners enjoy the same rights and obligations and participate in the owners' meeting together; Or attend the owners' meeting as nonvoting delegates and enjoy the right to suggest and know. However, local laws and regulations are not perfect and specific. In my opinion, the property leased by the lessee is not a simple physical house. In the modern sense, all kinds of property management services should be attached to the property, which requires residents to accept the property management system, that is, the meaning of property has developed into human culture. Therefore, when using the property, the lessee should enjoy the right to enjoy the management services of the property management company and must be bound by the property management system. But we should know that owners and non-owners have both the same interests and conflicts of interest, so their rights and obligations in property management should be inconsistent. Non-owner users generally do not care about the long-term interests of the property, nor do they want to pay too much attention to the maintenance of the common parts of the property. As owners, they may not care about the quality of property management during renting. Therefore, a certain right structure should be adopted to restrain the owners and non-owners in order to realize the careful maintenance of the property. The author believes that different rights and obligations should be distinguished. Some rights and obligations can be directly stipulated by law to be enjoyed and borne by the owner or non-owner user, while others should be determined according to the agreement between the non-owner user and the owner. For some non-owner users, the rights and obligations necessary to maintain the living environment of the property community should be directly stipulated by law that the owners and non-owner users should enjoy and bear equally. For example, decisions made by owners' congress, owners' congress and owners' committee are binding on all owners and users in the property management area. As for other rights and obligations, we should respect the agreement between the owner and the non-owner, so as to make civil transactions more flexible and give full play to the value of property. In addition, the agreement between the owner and the lessee on the payment of property management fees belongs to the contractual relationship between the two parties after all. Without the consent of the property company, if the lessee defaults on the property management fee, the property company shall have the right to urge the owner to pay it. Four, about the prophase property management, generalized prophase property management includes two aspects. First of all, it is involved in property management in the early stage, that is, before the property company takes over the property in the early stage of project construction, it participates in the planning, design and construction of the property from the perspective of property management, and puts forward opinions and suggestions to make the completed property meet the needs of the owners or users. On the other hand, it refers to the actual management of the property according to the contract or relevant regulations after the property company actually takes over the property. Narrow prophase property management only includes the latter. Property management, which we often say at present, also refers to property management in a narrow sense. At present, the early intervention of property management is not much in the practice of real estate development in China. In fact, it is of great significance: property management enterprises can make use of their professional knowledge to propose amendments to the planning and design when they participate in the planning, design and construction stages. On the one hand, planning, design and construction can meet the national technical standards in property management, on the other hand, they can take into account the management requirements after completion and delivery, better connect planning, design and property management, and meet the needs of owners and users. There is no provision to intervene in property management in advance in China's legislation, but the second point of the Notice of the Real Estate Department of the Ministry of Construction on the Implementation Opinions of the Ministry of Construction's No.33 Document "Measures for the Management of New Urban Residential Areas" points out: "For residential areas under construction, property management planning and implementation plans should be formulated in advance in accordance with the requirements of the Measures." Personally, in the future legislation, the early intervention of property management should be stipulated, which is more conducive to the development of property management. The state should mainly set out from the protection of the owners' rights and the market order of property management, and formulate some basic procedures and minimum standards. As for how to intervene and to what extent, developers and property management companies can choose freely. Let's talk about property management in a narrow sense. 1. The main body of the preliminary property management agreement is1October 0999+65438+65438. The preliminary property management service agreement (model text) issued by the Ministry of Construction points out that the main body of this agreement is "real estate development unit or its entrusted property management enterprise" and Party B is "property buyer (owner)". This protocol is not suitable for the location of subjects. The author believes that, first of all, before the owners move into the property, it is complicated and lacks maneuverability to let the property management enterprise sign the preliminary property management agreement with each owner one by one. Whether each owner is willing to entrust enterprise management remains to be discussed. At the same time, it also means that a contract has been signed between developers and property management companies, which should also be called "pre-property management agreement". Secondly, Article 5 of the Measures for the Administration of New Urban Residential Quarters of the Ministry of Construction clearly stipulates: "Before selling houses in residential quarters, real estate development enterprises should select property management companies to undertake the management of residential quarters and sign property management contracts with them." Article 28 of the Regulations on the Management of Urban Real Estate Development and Operation stipulates that the buyer and the seller of commercial housing shall sign a written contract, which shall specify "... the property management method and the liabilities of both parties for breach of contract." Since it is required to specify the property management method in the commercial housing sales contract, it means that the preliminary property management agreement should be signed by the developer and the property company. Therefore, it is more realistic and feasible to take the signing and performance of the responsibility of property management enterprises as a mandatory obligation of developers in legal form than to sign agreements with owners one by one as a contractual obligation. Therefore, personally, the early property management contract should be signed by the developer and the property company, and the buyers only need to make an agreement with the developer on the way of property management and the choice of the property company in the purchase contract. However, the author also has to point out that Article 20 of the Model Text of Commercial Housing Sales Contract issued by the Ministry of Construction 1995 stipulates: "... before the residential (building) management committee selects the property management organization, Party A designates the company to be responsible for the property management, and Party B abides by the property management regulations formulated by the property management company." However, there is no such agreement in the model text of the contract in 2000, so we should pay attention to it in operation. 2. Period and cost of property management in the early stage. Regarding the start time of early property management, there is little difference in local legislation. It is generally stipulated that the prophase property management contract should be signed before the owner moves in, that is, before the property is sold, so as to welcome the owner to move in and facilitate the owner's life. As for the specific start time, the property company can agree with the developer. About the end time of early property management, it is generally stipulated that after the establishment of the owners' committee of residential quarters and the hiring of property management enterprises. This content is generally directly stipulated by local legislation, mainly based on the protection of owners' use of property when the owners' Committee is not established. The important question is, who should bear the property management expenses in the early stage? At present, it is generally stipulated that the development and construction unit shall bear it by itself. For example, Article 24 of Qingdao Property Management Regulations stipulates: "The preliminary property management before the newly-built property is put into use, the owners' committee is set up, and the property management enterprise is selected to implement property management shall be entrusted by the development and construction unit, and the expenses shall be borne by the development and construction unit. "There are two problems. First, if the owners' committee can't be established in time according to the regulations or the property company is not selected after its establishment, it is unfair for the developer to undertake it indefinitely. Another problem is that from the point of view of practical use. We should adhere to the principle that users pay and users benefit, that is, after the owners move in, regardless of whether the owners' committee is established, the owners should pay the fees according to the construction area of the property, and the unsold part should be borne by the developers. In this regard, we can learn from the Regulations of Shanghai Municipality on Residential Property Management. Article 46 stipulates: "From the date of signing the preliminary property management service contract to the date of delivery of new commercial housing, the preliminary property management service fee shall be borne by the residential selling unit; The prophase property management service fee from the delivery date of the newly-built commercial house to the termination date of the prophase property management service contract shall be borne by the residential selling unit and the buyer in accordance with the stipulations of the residential transfer contract. "This provision is reasonable, but there are still the following problems that cannot be solved. That is, if "the prophase property management service fee from the delivery date of the newly-built commercial housing to the termination date of the prophase property management service contract shall be borne by the residential selling unit and the buyer according to the stipulations of the residential transfer contract", but there is no stipulation in the residential transfer contract, who shall bear it? The author believes that according to the principle of "whoever benefits pays", it should be borne by the occupants. Fifth, the recovery of property management fees is a headache for property management companies. Property management arrears have seriously affected the operation of some property companies. Some property companies take drastic measures such as water and electricity cuts to achieve the purpose of charging. Even some local legislations have this provision. For example, the second paragraph of Article 42 of the Regulations on Property Management of Urban Residential Areas in Hainan Special Economic Zone stipulates: "Property management enterprises may order owners who are in arrears to pay the fees within a time limit. If it fails to pay within the time limit, it may take measures such as stopping water supply, power supply and gas supply, but it shall notify the parties in writing five days in advance. "Whether this kind of behavior is appropriate and legal remains to be discussed. The author thinks that water supply, power supply and gas supply are the contractual legal relations between owners and water supply companies, power companies and gas companies for the paid use of water and electricity. If the owner defaults on the utility bill, the above-mentioned companies can stop water supply, power supply and gas supply according to law, but it seems that the property management company has no right to recover the property management fee by this means, and can stop providing property management services to the owner at most. In this regard, China's future legislation can learn from the practices of Hongkong or other countries. Hong Kong's Building Management Ordinance stipulates that if the owner fails to pay the property management fee according to the deed of mutual covenant, the owners' corporation may sell the property's rights and interests in the building, or report the arrears to the Land Registry for filing, mortgage the owner's rights and interests in the building, or deduct the rent paid by the tenant to the owner, and the owners' corporation may require the tenant to deduct the property management fee owed by the owner from the rent payable to the owner. Article 19 of France's law on hierarchical ownership of residential buildings stipulates that * * * the owners shall guarantee their shared public expenses and burdens with the legal mortgage set by their beneficial parts. Article 7 12, paragraph 9 and paragraph 10 of the Swiss Civil Code stipulate the legal pledge and lien system to ensure the performance of debts. Regarding the legal pledge, it stipulates: "When the floor owner fails to pay the expenses allocated to the floor owner in the last three years, all the floor owners have the right to request the establishment of the pledge for their due share. "With regard to the property lien, it stipulates:" If the floor owner fails to pay the expenses allocated to the floor owner within the last three years, all the floor owners have the same lien on the equipment in and attached to the house or the movable property used for the house as the lessor. "According to American law, when the residential owner fails to fulfill the obligation of cost sharing, the manager or the person who implements management and maintenance has the priority to be compensated for the property of the residential owner, which is prior to other creditor's rights except tax payment and registered mortgage. Six, about xx accessories, xx facilities and equipment maintenance fund. * * * Residential part, * * * Facilities and Equipment Maintenance Fund refers to the fund specially used for the residential part and the overhaul, renewal and transformation of * * * facilities and equipment after the warranty period expires. The Ministry of Construction's Measures for the Management of Maintenance Funds for Shared Facilities and Equipment in Residential Buildings (hereinafter referred to as the Measures) and the Provisions on Financial Management of Property Management Enterprises have detailed provisions on this. "Measures" stipulates: "When commercial housing is sold, the buyer and the seller shall sign a maintenance fund payment agreement. Property buyers should pay the maintenance fund to the selling unit according to the proportion of 2-3% of the purchase price. The maintenance fund collected by the selling unit belongs to all owners and is not included in the residential sales income. "At the same time, it is stipulated:" When the maintenance fund is insufficient, the local real estate administrative department or the owners' committee will study and decide to continue to raise funds from the owners according to the proportion of residential buildings occupied by the owners. " (I only say commercial housing here. Here, the author only puts forward a few problems that need attention in practice or legislation. 1 Article 40 of the Regulations on Quality Management of Construction Projects stipulates the minimum warranty period of the construction project by the construction unit according to different situations, such as the reasonable service life specified in the design documents for the foundation and main works, and 5 years for the roof waterproofing project. At the same time, the Ministry of Construction's "Provisions on the Implementation of Residential Quality Warranty and Residential Instruction System for Commercial Residential Buildings" also requires developers to implement residential quality warranty for different periods. The Measures for the Administration of Commercial Housing Sales further stipulates this. Therefore, it is certain that the quality problems of residential parts and facilities during the warranty period should be handled in accordance with the above provisions, that is, the developer or the construction unit guarantees the quality and may not use the maintenance fund. Therefore, it is necessary to formulate more detailed management measures for the use of maintenance funds. At the same time, property management companies and business owners' committees are required to pay attention to auditing related matters when using maintenance funds. 2. At present, Qingdao has not strictly implemented the provisions in the above Measures. When a developer sells a house, it does not purchase 2-3% of the maintenance fund. In the practice of property management, we will continue to follow the notice of "Green Home Textiles [1998] 1 15" jointly issued by Qingdao Municipal Price Bureau, Municipal Construction Committee and other departments, that is, it will be charged per square meter of 0.2 yuan per month according to the construction area. It should be noted that Qingdao's notice was implemented from 1 June 65438+July 998 1, while the Ministry of Construction's method was implemented from1June 65438+1October 9991. It can be seen that the local regulations or practices of Qingdao should be unified with the measures of the Ministry of Construction as soon as possible.