What about the illegal scaffolding upstairs?

1. Does the owner have the right to ask other owners to dismantle illegal structures and alterations?

Many people think that according to Article 39 of the Regulations of Shanghai Municipality on Residential Property Management adopted by the 14th meeting of the Standing Committee of the 12th Shanghai Municipal People's Congress on August 19, 2004, the owners' committee should dissuade and stop the owners and users from violating these regulations or the temporary owners' convention and the owners' convention, damaging the load-bearing structure of the house, changing the use nature of the property without authorization, and harming the legitimate rights and interests of other owners and users; Relevant owners and users can bring a civil lawsuit to the people's court according to law ",while Article 83 of Chapter VI of the Property Law of People's Republic of China (PRC)" Owners can bring a lawsuit to the people's court according to law for acts that infringe upon their legitimate rights and interests ",and the owners have every right to ask the owners who have built or rebuilt illegally to dismantle their illegal buildings.

However, in practice, the court's handling is far from simple. Whether the lawsuit requesting others to dismantle the illegal structure can be supported by the court depends to a great extent on whether the illegal structure actually infringes on the legitimate rights and interests of the owner. Compared with the Regulations of Shanghai Municipality on Residential Property Management, the promulgation of the Property Law has not relaxed the requirements for litigants who require others to demolish illegal buildings.

What is meant by "harming the lawful rights of other owners and users" is further clarified in the Notice of Shanghai Higher People's Court 1997339 on Accepting Adjacent Disputes Caused by Illegal Construction. "In case of illegal construction, remove the load-bearing wall and install anti-theft doors and windows. The rights of certain neighboring parties such as walking, ventilation, lighting, safety, etc. have indeed been infringed, and if the neighboring parties bring a lawsuit to remove obstacles, the people's court shall try the case according to law. This shows that;

1. Rights of specific owners, such as walking, ventilation, lighting, safety, etc. If it is really infringed, it can bring a lawsuit to the court and ask other owners to dismantle illegal buildings;

Of course, how to prove that one's rights such as walking, ventilation, lighting and safety have indeed been violated, and it is difficult to obtain evidence, organize and submit, which requires the guidance of professionals and cannot be taken for granted by the owners.

2. Owners whose rights such as walking, ventilation, lighting and safety have not been infringed have no right to ask the court to support their claims for other owners to dismantle illegal buildings.

In practice, I have met some owners whose rights and interests have not been greatly affected by the illegal construction of the other party. Just because of the neighborhood conflict, they want to sue their neighbors for demolishing illegal buildings, and they have used this lawsuit to force their neighbors to make concessions and even make property compensation. It should be said that this kind of behavior has no legal basis, and it is easy to cause the judge's disgust. If they can't prove that their rights have been violated, it will be difficult to get the support of the court. There is a saying that the law is nothing more than human feelings and harms others, which is difficult for the court to support.

2. Can the property company ask the owner to dismantle the illegal building, and will the court support it?

In judicial practice, property companies have also filed civil litigation disputes because the owners violated the owners' temporary convention or decoration management agreement, and some courts have also filed cases and treated them as owners' breach of contract.

However, the temporary owners' convention is a commitment made by the owners to other owners in the same community, and their rights and obligations are borne by the owners. Even if an individual owner violates this promise, other owners (too many, through the owners' committee) should file a civil lawsuit instead of the property management company.

Although the nature of the decoration management agreement is ostensibly an agreement signed between the owner and the property management company, the essence is still that the owner takes this opportunity to promise the prohibitions and precautions in the decoration that most owners have reached an agreement, and the other party to the promise is still other owners rather than the property management company. The property company has no legal right to file a civil lawsuit as the counterpart of the contract.

Legally speaking, the main reason why the property company has no right to sue is that the responsibility of the property company itself is based on the property service agreement and the authorization of the owners' Committee, and its management right to the property owners to dispose of their own property is limited, and it is not the subject of relevant rights and obligations, nor the source of rights.