Remarks on upholding the original judgment in the second instance of property service contract disputes

Entrusted by XX Property Management Co., Ltd., XXX Law Firm appointed me as the entrusted agent of the plaintiff in this case. According to the facts of this case and relevant laws and regulations, the following opinions are put forward for the court's reference:

1. The fact that the defendant owed the plaintiff the property management service fee is clear and the evidence is really sufficient. The defendant should not only pay the plaintiff the arrears, but also bear the corresponding liability for breach of contract in accordance with the contract.

The plaintiff signed the Property Management Entrustment Contract with the developer XX Real Estate Co., Ltd. to provide property services for XX Community. As the owner of the community, the contract is legally binding on the defendant. The defendant shall pay the property management fee to the plaintiff as agreed in the contract. Because the defendant has been in arrears with the property management fee for a long time, the defendant should also bear a late payment fee of 0.5% of the payable fee to the plaintiff in accordance with the contract.

Two, the plaintiff claimed that the property management service fee did not exceed the limitation of action, and its claim should be supported.

According to Article 5 of the Supreme Court's Provisions on Several Issues Concerning the Application of Prescription System in the Trial of Civil Cases, if the parties agree to perform the same debt by stages, the prescription period shall be counted from the date when the last performance period expires. The property management service fee involved in the property service contract is a whole continuous debt, and the integrity and relevance of all debts are greater than independence, and both parties to the contract perform their debts as a whole. In the process of providing property services to the defendant, the plaintiff receives the property service fee from the defendant in advance every year, which is the phased performance of the property management service fee during the whole contract period. Therefore, the limitation of action of property fees should be calculated from the date of the expiration of the last performance period, not from the time of installment performance. In addition, according to Article 15 of Opinions of the X Provincial High Court on Several Issues Concerning the Trial of Disputes over Property Service Contracts, "the limitation period for property service providers to ask owners to pay property service fees shall be counted from the date when the performance period of the last property service fee expires", in the case that the original defendant and the defendant still have a property service relationship, the plaintiff's claim for asking the defendant to pay property service fees shall not exceed two years, and the plaintiff's claim court shall support it.

3. The defendant argued that the defendant refused to pay the property fee on the grounds of the plaintiff's breach of contract in the performance of the contract, and there was no factual and legal basis.

According to the principle of who advocates and who gives evidence, if the plaintiff breaches the contract, the defendant shall give evidence, otherwise it shall bear the consequences of not giving evidence. During the trial, the defendant argued that the plaintiff had breached the contract by failing to perform maintenance obligations and providing inadequate services, so the defendant refused to pay the property fee. The above situation stated by the defendant is not proved by sufficient evidence. Item 9, Paragraph 1 of Article 1 of the Property Management Service Agreement signed by another industry committee and the plaintiff clearly stipulates that "the owner or user shall not refuse to pay the property service fee on the grounds that the parts used by * * *, the facilities and equipment used by * * * are generally defective or the service is not satisfactory", which is binding on both the original defendant and the defendant, and the defendant's refusal to pay the property service fee is obviously in violation of the agreement.

To say the least, even if the plaintiff has a corresponding breach of contract, the defendant can ask for the reduction of property management fees while enjoying other property services provided by the plaintiff, but he has no right to refuse to pay all the property management fees.

Four, the defendant asked the plaintiff to fulfill the obligation of support, and compensate for the losses caused to the defendant due to the delay in fulfilling the above obligations, and its counterclaim was not supported.

* * * The maintenance responsibility of some parts shall be borne by some owners of * * *. As a property management company, the plaintiff is only entrusted by the owner to implement the specific maintenance plan, and the maintenance plan and the use of funds are decided by the owner. The plaintiff has no right to decide the above matters, and it is obviously inappropriate to ask the plaintiff to perform the maintenance obligation under the uncertain scheme and funds. The unfinished maintenance work is also affected by the maintenance plan and maintenance funds, not caused by the plaintiff's laziness in performance. The defendant's claim for damages should not be supported because it is not supported by relevant evidence and the defendant has not fulfilled his reasonable obligation of derogation.

To sum up, the plaintiff's claim is clear and the evidence is sufficient, and the defendant's counterclaim lacks factual and legal basis. We implore the court to support all the plaintiff's claims and reject the defendant's counterclaim.

Agent:

Date, year and month

Legal basis:

Article 465 of the Civil Code of People's Republic of China (PRC) * * * Contracts established according to law shall be protected by law. A legally established contract is legally binding only on the parties, except as otherwise provided by law.

Article 23 of the Civil Procedure Law of People's Republic of China (PRC) shall be under the jurisdiction of the people's court of the defendant's domicile or the place where the contract is performed.