A comprehensive interpretation of the national property management regulations

● Respondent: Luo Xiaogang, Vice President of Guangdong Property Management Association; Xie Kai, Deputy Secretary General of Guangzhou Property Management Association; Wen Biqian, lawyer of Guangdong Guo Jing Law Firm; Qin Bing, lawyer of Beijing Longan Law Firm; And Ye Chunsheng, director of Guangzhou Chunlan Garden Industry Committee.

The national "Property Management Regulations" was finally officially promulgated recently. For this national regulation that has gone through four years and listened to the opinions of people in the property management industry in Guangdong Province, experts in the property management industry in Guangzhou believe that the new "Regulations" have bright spots, but there are also regrets. After all, it is the first national property management regulation, which objectively fills the blank of national property management laws and regulations. In this regard, Guangzhou property management professionals and lawyers gave similar comments:

Wen Biqian, a lawyer of Guangdong Guo Jing Law Firm, said that the promulgation of the national property management regulations ended the history of the property management industry without national regulations for more than 20 years; Luo Xiaogang, vice-president of Guangdong Property Management Association, believes that national regulations unify property management legislation, standardize property management behavior, clarify the responsibilities and rights of each subject of property management, and promote the marketization of property management.

But at the same time, some insiders also said that for Guangzhou, which has been at the forefront of the property management industry, the guiding significance of this provision is not great.

Highlight 1: change "entrustment" to "service", and both parties have equal status.

"Article 35 The owners' committee shall conclude a written property service contract with the property management enterprise selected by the owners' congress. The property service contract shall stipulate property management matters, service quality, service fees, rights and obligations of both parties, management and use of special maintenance funds, property management premises, contract term, liability for breach of contract, etc. " "It is a radical thing to change the original entrustment contract into a service contract." Wen Biqian said this. He believes that the contract signed by the owner and the property management has always been regarded as a property management entrustment contract, which is a wrong understanding. He said, according to this understanding, property management means that the owner entrusts a property management company to act as an agent for residential property management. There is a clear definition of agency in law: "first, the principal engages in legal acts in the name of the agent;" Second, the principal can only engage in agency behavior within the scope authorized by the agent; The third is all the agency actions of the principal, and the legal consequences belong to the agent. " In fact, the property management company should bear the responsibility for the problems in the process of property service. He believes that the identification of the legal relationship of the principal-agent in the property management contract led to the popularity of the master-servant theory, the housekeeper theory and the nanny theory, which has been detrimental to the healthy development of property management. The regulations of this country put both sides in the right position. "In fact, the two sides are equal and act in full accordance with the contract." He said.

Highlight 2: it is clear that the industry Committee is only the executive body of the owners' meeting.

"Eighth property management within the region of all owners of the owners' meeting. The owners' congress represents and safeguards the legitimate rights and interests of all owners in the property management activities within the property management area. " Article 15 The owners' committee is the executive body of the owners' congress ... "Wen Biqian believes that although the legal status of the owners' congress and the owners' committee is not clearly defined in national laws and regulations, there has been a progress, and the owners' congress is defined as an autonomous organization representing the legitimate rights and interests of owners, and all owners must implement the decisions made by the owners' congress. At the same time, the national laws and regulations clearly stipulate that the owners' committee can only be the executive body of the owners' meeting, and the owners' meeting will decide on the use and renewal of maintenance funds, the use and monitoring of * * * parts of the property and * * * facilities and equipment, the maintenance of public order and environmental sanitation, and the selection and appointment of management companies. Wen believes that this restricts the authority of the industry Committee, and the original provincial and municipal regulations give the industry Committee too much authority, such as the power to hire property management companies, which leads to the abuse of power by some community industry committees in Guangzhou.

Highlight that three industry committees must urge owners to pay property management fees.

"Forty-second owners shall pay the property service fee in accordance with the provisions of the property service contract. If the owner and the property user agree that the property user will pay the property service fee, the owner shall bear joint and several liability from their agreement. " "Sixty-seventh in violation of the property service contract, the owners did not pay the property service fee, the owners' committee shall urge them to pay within a time limit; If it fails to pay within the time limit, the property management enterprise may bring a lawsuit to the people's court. "Xie Kai, deputy secretary-general of Guangzhou Property Management Association, believes that it is a great progress that the state has the obligation to urge owners to pay property management fees. Xie Kai said that the services of property management companies are holistic, and the property management fees collected serve the interests of all owners. The result of individual owners not paying property management fees is to hurt the interests of the vast majority of owners. The new regulations clearly state that when owners fail to pay the property management fee, the industry committee has the obligation to do a good job of supervision, which shows that the owners' congress has truly become an autonomous organization with self-management constraints.

Highlight 4: The division of functions of property management companies is more detailed.

"Forty-fifth property management area, water supply, power supply, gas supply, heating, communications, cable television and other units shall charge the relevant fees to the end users. If the property management enterprise accepts the entrusted collection of money and fees, it shall not charge the owner any additional fees such as handling fees. " "It is common for property management companies to collect fees from owners on behalf of water, electricity and other supporting departments." A property management professional said that this has also triggered many property management disputes. State regulations make it clear that property management companies have no obligation to collect fees from owners on behalf of public supporting units, which reduces the sources of many disputes. Xie Kai believes that the provisions stipulated in the national regulations promulgated by the State Council mean that the property management company will only coordinate with the relevant public departments in the future, and will not have to undertake the obligation of collecting and remitting. It is a liberation for some property management companies.

■ Some terms of lawyer interview are not practical.

Reporter: Please make a general evaluation of the national regulations.

Qin Bing: Lack of practicality. The question here is whether we need a constitution or a contract law, and whether we need an operable law or a principled law.

Reporter: If you were asked to name only one or two unreasonable national regulations, which clauses would you choose?

Qin Bing: Let's choose three items-the first item is article 10 (article 10). Owners in the same property management area shall set up owners' meetings and elect owners' committees under the guidance of the real estate administrative departments of the district and county people's governments where the property is located. However, if there is only one owner, or if the number of owners is small and all owners agree unanimously, it is decided not to set up the owners' meeting, and the owners will jointly perform the duties of the owners' meeting and the owners' committee. What is guidance? How does the owner start the "boot" program? What if the real estate administrative department does not give guidance? What is an election? If there is an election, is it a difference or an equal amount? Can there be an industry Committee without elections? Second, Article 12 (Article 12, the owners' meeting may take the form of collective discussion or written comments; However, there should be owners who hold more than 1/2 voting rights in the property management area to participate. The owner may entrust an agent to attend the meeting of the owners' congress.

■ Some terms of lawyer interview are not practical.

The decision made by the owners' meeting must be approved by the owners 1/2 or more voting rights present at the meeting. The decision of the owners' congress to formulate and amend the owners' convention and the rules of procedure of the owners' congress, to hire and dismiss property management enterprises, to use special maintenance funds and to continue to raise funds must be approved by more than two-thirds of the voting rights held by all owners in the property management area. The decision of the owners' meeting is binding on all owners in the property management area. ) For a community with 2000 owners, the property management company has basically made a decision, and it is almost impossible for two-thirds of people to object. Even if one day the owner gives 2/3 negative votes, the property management company can say: You didn't write it in one day, and the negative votes are less than 2/3 every day. I can't go every day. In this case, I have to stay. Third, Article 41 (Article 41) Property service charges shall follow the principles of reasonableness, openness and adaptability between charges and service levels, and distinguish the nature and characteristics of different properties. Owners and property management companies shall, in accordance with the measures for charging property services formulated by the competent price department of the State Council in conjunction with the competent construction administrative department of the State Council, stipulate in the property service contract. ) This article does not deprive the property company of its pricing power among the owners! We hire a nanny at home. Why should the government set a price for us? If the owner pays the money at this price and the service of the property company is not good, will the government fulfill its responsibilities to the property company? Reporter: This provision still avoids many problems, such as the legal status of the owners' committee. Some people in the property management industry in Guangzhou believe that there is no clear place in the national regulations, and it is necessary to further refine and improve the local provincial and municipal regulations and make operational regulations.

Qin Bing: But there is one thing. Generally, the level of local legislation will not exceed the level of national legislation, except for Shanghai.

Unfortunately, the legal status of the owners' committee is not clear.

Many people in the property management industry told reporters that it is one of the main regrets of national laws and regulations that the legal status of the owners' Committee is not involved. According to Luo Xiaogang, at present, the industry committee is not a legal entity, has no legal personality, cannot engage in civil activities, and does not bear civil liability. However, disputes about the industry committee continue, because the behavior of the industry committee infringes on the rights and interests of the owners, and lawsuits involving the industry committee are staged from time to time in the residential areas of Guangzhou. The continuous development of property management in Guangzhou puts forward the requirement of clarifying the legal status of industry committees, but the national regulations are not clear. Luo Xiaogang pointed out in particular that in Hongkong, this problem is very clear: there is an organization in the community called the Owners' Corporation, which is a body with legal personality and can bear civil liability.

There is no legal basis for the industry Committee to file with the competent construction department.

"Sixteenth 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. ...... ""There are three questions here. " Wen Biqian thinks so. First of all, the role of filing is not clear. Is the nature of filing "approval" or just "knowing"? If it is approval, it should be called approval; Secondly, who should put on record, the owners' meeting or the owners' committee? The owners' meeting can be compared to a company, and the industry Committee can be compared to a board of directors. Only the company is registered, and there is no board of directors. Third, there is no legal basis for such registration. According to relevant laws and regulations, commercial organizations are registered in the industrial and commercial departments, and corporate bodies are registered in the civil affairs departments. However, there is no legal basis for the industry Committee to register with the competent construction department. There is no clear method to determine the right to vote.

Wen Biqian said that the state stipulates that there is no clear way to decide the right to vote, and this issue is pushed to local governments for decision. It is understood that there are two main voting methods at present. One is the Shanghai model, where the number of votes is determined by the number of households; One is the Shenzhen model, where the number of votes is determined by the area of property rights. Wen believes that the Shenzhen model is more reasonable, because property management fees are generally calculated according to the construction area, so the larger the property area, the more property management fees are paid, and the greater the rights should be. However, it is also necessary to prevent large owners from monopolizing voting rights, which can be solved by designing such rules, such as exceeding a certain proportion of the total voting rights of all owners (for example, 20%), and the excess is not counted as voting rights. Wen believes that Guangdong province should pay attention to this issue when formulating local implementation rules.

Avoid the lack of legal constraints on "father and son soldiers"

Ye Chunsheng, director of Guangzhou Chunlan Garden Industry Committee, said that the violation punishment stipulated by the state that "residential property construction units should choose property management enterprises with corresponding qualifications through bidding" is only an administrative punishment within 6.5438+10,000 yuan, which is meaningless. He believes that "there are legal constraints, otherwise the status quo in Guangzhou will continue." Lawyer Qin Bing of Beijing Longan Law Firm told the reporter that the state's regulations on the separate operation of construction units and property management are inconsistent. Article 24 clearly stipulates that it is only "the state' advocates' ……", while Article 57 is a penalty for violation of regulations, which shows the confusion of legislative language. The concept of the problem is not clear.

"Article 2 The term" property management "as mentioned in these Regulations refers to that the owner selects a property management enterprise, and the owner and the property management enterprise agree on a property service contract ..." Luo Xiaogang thinks this expression is inappropriate. Property management not only refers to the services provided by the owners through the selected property management companies. Can't the management services provided by the property management company selected by the developer through legal bidding in the early stage according to the property service contract be called property management? Luo Xiaogang believes that the definition of the concept of property management in national laws and regulations is relatively narrow, while some concepts are more accurately expressed in Guangdong laws and regulations.

The insiders believe that the actual operability stipulated by the state is relatively poor. For example, Article 12 stipulates: "The selection and dismissal of property management enterprises, the use of special maintenance funds and the decision on renewal plans must be approved by more than two-thirds of the voting rights held by all owners in the property management area." However, in a community with thousands of owners, it is very difficult for people in the industry to gather 2/3 of the owners' meetings. In this regard, Xie Kai believes that this needs to be handled flexibly in combination with local regulations. For example, according to the regulations of Guangzhou Property Management Owners Committee, the problem can be solved by electing owners' representatives. Some regulations are unfavorable to small business owners. On June 25, the reporter received a phone call from a related person of the Municipal Price Bureau who did not want to be named. He thinks that the last sentence of article 4 1 of the national regulations is not conducive to small business owners. ("Article 41 The property service charges shall be agreed upon by the owners and the property management enterprises in the property service contract in accordance with the measures for property service charges formulated by the the State Council price department in conjunction with the the State Council construction administrative department." He believes that in reality, in order to attract property buyers, developers need to sign low-cost property management fees with property management companies. Once the property service contract is signed when buying a house in accordance with the state regulations, it will be in the state of "unconditional obedience" and lose the channel of appeal to the State Land Housing Authority and the Price Bureau. Xie Kai pointed out that the state stipulates who will pay the property management fee before the property built by the developer passes the comprehensive acceptance, which is the focus of general concern in Guangdong. What is also not involved is the legal status of the owners' Committee mentioned above and how to pay and use the maintenance fund.

Some people in the industry are disappointed with this, saying that "the national regulations have not substantially solved the key problems, contradictions and disputes that have arisen in reality", so it has "little guiding significance" for Guangdong.