Sorting out and Interpretation of Relevant Provisions on Property Management

Sister Wen Ying of Nanjing consulted several questions about property management the day before yesterday, and the residential area where she lived some time ago was also full of problems related to property management. I combed it, replied, and posted it for discussion by the way.

? In our life, what we encounter most is the problem of property management, from which many disputes come. There are several laws and regulations that really regulate our property management. One is the Civil Code, and the other is the Property Management Regulations of provinces and cities starting from the State Council. There used to be a property law, which was later incorporated into the civil code. Therefore, the standard to judge whether the property behavior is correct is the relevant provisions of the Civil Code, and managers, employees and owners of the property industry should learn and follow it. Well, there is a common sense here: the law is greater than the regulations (regulations), and the lower law must not conflict with the upper law.

? The promulgation of the Civil Code has made some amendments to the relevant provisions of property management, and the core content of participating in property management is nothing more than these articles.

? The core clause is this one. Article 278 of the Civil Code shall be decided by the owners: (1) Formulating and amending the rules of procedure of the owners' congress; (2) Formulating and amending management regulations; (three) to elect the owners' committee or replace the members of the owners' committee; (four) the selection and dismissal of property services companies or other management personnel; (five) the use of funds for the maintenance of buildings and their ancillary facilities; (six) to raise funds for the maintenance of buildings and their ancillary facilities; (seven) renovation of buildings and their ancillary facilities; (eight) change the use of * * * or use * * to engage in business activities; (nine) other major matters related to the management rights of * * * and * * *. The owners * * * agree that the decision shall be passed by the owners who account for more than two-thirds of the exclusive area and more than two-thirds of the total number. Decisions on matters specified in Items 6 to 8 of the preceding paragraph shall be subject to the consent of the owners and more than 3/4 of the voters who participate in voting on the exclusive part. Other matters specified in the preceding paragraph shall be decided with the consent of more than half of the owners voting, and with the consent of more than half of the owners voting.

This article was originally stipulated in the Property Law and was revised after being incorporated into the Civil Code. What should we remember?

First of all, these nine things must be decided by all owners. No unit or individual can deprive the owners of their rights, otherwise it will be illegal and natural decisions will not be protected by law. The common things involved in our community here are: green parking, parking fees, advertising revenue, hiring property companies, and electing members of industry committees. Remember, these things can only be implemented after consulting all the owners.

? The second is the requirement of two numbers. /kloc-items 0/to 5 and 9 require two-thirds requirements, that is, the number and area of participants should reach two-thirds, and it is agreed to reach two-thirds; Items 6 to 8 require two three quarters.

? This clause is equivalent to the red and yellow card clause in football matches, and both players and referees must strictly abide by it. This is a red line. You can't touch it. Matters related to the community, such as the transformation of the community, such as the election of the industry Committee, such as green parking, such as the installation of elevators, such as the charging of ground public parking spaces and so on. You must go through the procedure of soliciting opinions, otherwise it is illegal.

? As far as property management is concerned, we should clarify several issues:

? The second is to clarify the relevant responsible persons of property management. Everyone thinks that the responsibility of property management lies in the housing and construction sector, which is actually a long-term misleading. The property management of local towns and streets is very clear, whether it is the civil code or the national, provincial and municipal property regulations. The housing and construction sector mainly focuses on industry guidance and industry supervision. In my opinion, I think the responsibility of the housing and construction department is to guide and supervise whether the streets perform the relevant duties of property management in accordance with national laws and regulations, and to guide and supervise whether the property companies perform related businesses in accordance with laws, regulations and contracts. Here, some citizens don't understand. In fact, just remember one sentence. Personally, it is "the law can be done without prohibition", and as far as the relevant government departments are concerned, it is "the law cannot be done without authorization". What do you mean? Individuals can do things that are not prohibited by law; You can't do anything without the authorization of the department or the law. Therefore, many times, it is not the inaction of the department, but as a department, what to do, what not to do, and to what extent, we must strictly follow the regulations. For an inappropriate analogy, as a natural person, when he sees a traffic accident, he can bravely take various measures to deal with the aftermath. As a department, the handling of related accidents can only be handled by the public security department, and the Housing and Construction Bureau and the Urban Management Bureau are absolutely not allowed to handle traffic accidents. If they don't handle traffic accidents, car owners will certainly understand, but if the public security department doesn't handle them, car owners can complain. This also leads to the complexity and triviality of community management. Give two examples: for example, some people in the community built it illegally, and some people smashed the load-bearing wall during the renovation. The former is managed by the Natural Planning Bureau, while the latter is managed by the Urban Construction Supervision Branch (Team) of the Housing and Construction Bureau. What should I do? If the property company finds that it reminds the relevant owners to stop their behavior and make corrections within a time limit, and refuses to make corrections, it will issue relevant (reminder and punishment) notices. If it fails to make corrections within the time limit, the urban management department will enforce the law. In practice, it is often unclear whether this matter belongs to the Housing and Construction Bureau, the Natural Planning Bureau or the Urban Management Bureau. Therefore, this time, when Taizhou formulated the Regulations on Residential Property Management in Taizhou, it made some clarifications as much as possible. Nanjing is not applicable.

? Third, industry committees should be elected by all owners, but they cannot decide everything on behalf of all owners. Industry Committee is a permanent organization, and its management with the owners' congress is similar to the relationship between the Standing Committee of the National People's Congress and the people's congress. Although they all perform relevant duties on their behalf when there is no meeting, and often have the same legal responsibilities, they are only authorized to give relevant duties, and some special key issues cannot be decided on their behalf. For example, the Standing Committee of the National People's Congress can only appoint deputy mayors, deputy district heads and government departments, but not directly appoint mayors and district heads, so we often see acting mayors and district heads. Why? The National People's Congress Standing Committee (NPCSC) cannot decide, but is appointed after the National People's Congress election. Similarly, the industry Committee can handle many daily affairs on behalf of the owners, but there are some things that it cannot decide. What business? The matters that must be decided by all owners are at least the nine mentioned above. Before, I classified the problems existing in the industry Committee into several categories: first, it exists in name only, what is equal to what is not and what is not; The second is to collude with property companies and developers to sell the interests of all owners for profit; Third, it is too strong and controlled by a few people with ulterior motives, driving away the owners of property companies; Fourth, although there is enthusiasm, but lack of professional ability, strength can not even help, and so on. Therefore, it is very important to elect an industry committee with enthusiasm, fairness, decency, time and legal knowledge. Unfortunately, most owners are not aware of this, or their enthusiasm is not high. What should I do if there is a problem with the members of the industry Committee? The owners' committee is an organization. Once it is established, it cannot be removed unless it is dissolved. Therefore, members of the owners' committee can only be dismissed. Members of the owners' committee should be removed cautiously and strictly, otherwise it will be invalid. The owners' committee is composed of members of the owners' committee elected by the owners, and the tenure system is implemented. The term of office of the members of the owners' committee shall not be terminated at will. If the members of the owners' committee seriously violate the owners' convention or the rules of procedure of the owners' committee, the owners have the right to recall the members of the owners' committee. However, the removal of members of the owners' committee must be carried out in accordance with legal procedures. The premise is that representatives with more than 20% voting rights put forward a motion and suggested that the owners' committee convene an interim owners' meeting. The proposal should clearly put forward the members of the owners' committee who need to be removed, and should clearly put forward the reasons for the removal. The proposal shall be submitted to the owners' committee after being signed and agreed by the owners with more than 20% voting rights.

? Finally, I still want to say that the property management I expect should be a harmonious state of "strong guidance from departments (such as housing construction), efficient local (street) organization, conscientious property management and civilized and conscious owners". To do this, all the points must work together. The relationship between several subjects should be clear, and the industry Committee and the property management company are not antagonistic. Just like a football match, the court and the housing construction department are the referees, the street community is the coach, and the property management company and the owners (industry committees) are the players. Only when everyone is at a high level, without losing their positions, offside and good positions, will this game be wonderful. The premise is that everyone must abide by the rules of the game, which is the civil code, that is, the property contract signed according to the civil code with "consistent quality and price".

? The above is my personal learning and practical experience, which is neither comprehensive nor authoritative. If there are any mistakes or omissions, please criticize and correct them.