Property contractual relationship

In August, 20001year, Yao signed a pre-sale contract with a real estate company, and in February, 20001year, both parties went through the house acceptance and handover procedures. After the delivery of the house, Yao agreed to hand it over to S Property Management Company for unified management. A real estate company signed a property service contract with S company in May, 20001year, stipulating that the property service fee is 2 yuan per square meter per month, and the charging standard has been approved by the district price management department. In September 2002, the owners' committee was established in the community. Due to the failure to reach an agreement with S Company on the service fee standard, the two parties did not sign a new property service contract. Since March 2002, Yao has refused to pay the property service fee. S company failed to negotiate with it, and filed a lawsuit with the people's court in February 2003.

Analysis according to law

The focus of this case lies in whether the preliminary property service contract signed by a real estate company and S company is binding on the owner Yao.

The legal relationship of property management refers to the legal relationship between the owners and the property management enterprises, and the hiring of property management enterprises should generally be decided by the owners' meeting. However, in practice, there are many cases of "rolling development" of property, and the owner's occupancy is a gradual process. There is often a long period from the delivery of the property to the establishment of the owners' meeting. In order to manage and maintain the property, protect the legitimate rights and interests of the owners in the early stage, and create a good sales and leasing environment and living environment, it is necessary for property management enterprises to intervene and carry out the early stage property management. Before all houses are sold, the construction unit owns the ownership of unsold houses, usually the big owner, and the law stipulates that the big owner decides the hiring of property management enterprises.

When hiring a property management enterprise, the construction unit shall sign a preliminary property service contract with it. 1994 article 5 of the measures for the administration of new urban residential quarters issued by the Ministry of construction stipulates that "before selling houses in residential quarters, real estate development enterprises shall select property management companies to undertake the management of residential quarters and sign property management contracts with them." Article 2 1 of the new Property Management Regulations also provides for this. "Before the owners' congress and the owners' congress select and employ the property management enterprise, the construction unit shall sign a written preliminary property service contract. "

The prophase realty service contract generally includes the following contents: (1) the name and domicile of the construction unit and the realty management enterprise; (2) the regional scope of property management and management projects; (3) Term of the property management contract; (4) Property management fees; (5) Requirements and standards for property management; (6) Agreement on the termination and rescission of the contract; (7) Liability for breach of contract; (8) Other matters agreed by both parties, such as the use, management, maintenance and renewal of public facilities and equipment, security services, cleaning services, and property maintenance fund management.

Although the preliminary property service contract was signed by the construction unit and the property management enterprise, its service object includes the owner and is binding on the owner. First of all, before the owners' committee signs a new property service contract with the property management enterprise, it is mandatory for the construction unit to sign the preliminary property service contract, and the owners shall not refuse to perform the contract on the grounds that they did not sign it; Secondly, there is a de facto service contract relationship between the owner and the property management enterprise, and the ultimate beneficiary of the property service behavior is the owner, who should pay the property service fee; In addition, laws and regulations generally stipulate that when buying and selling houses, buyers and sellers should make an agreement on the preliminary property service, and the commercial housing sales contract should include the contents of the preliminary property service contract, or require the purchaser to sign an agreement with the property management enterprise selected by the construction unit. For example, Article 28 of 1998 "Regulations on the Management of Urban Real Estate Development and Operation" stipulates: "For the sale of commercial housing, both parties shall sign a written contract, which shall specify ... the property management method and the liabilities of both parties for breach of contract." 200 1 Article 13 of the Measures for the Administration of Commercial Housing Sales of the Ministry of Construction stipulates: "When a real estate development enterprise selects a property management enterprise for the sale of commercial housing, the buyer shall conclude a property management agreement with the property management enterprise selected by the real estate development enterprise when concluding a commercial housing sales contract." Article 25 of the Property Management Regulations also stipulates that "the sales contract signed by the construction unit and the property buyer shall include the contents agreed in the previous property service contract."

In this case, the contract signed by a real estate company and S company in May, 200 1 year is the prophase property service contract. When buying a house, Yao agreed to hand over the house to S Company for unified management. This preliminary property service contract is binding on Yao, and Yao shall perform it.

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Pre-property service contract (model text)

Party A:

Legal representative:

Domicile:

Postal code:

Party B:

Legal representative:

Domicile:

Postal code:

Qualification level:

Certificate number:

According to the Property Management Regulations and relevant laws, regulations and policies, Party A and Party B sign this contract on the basis of voluntariness, equality and consensus on Party A's engagement of Party B to provide preliminary property management services for (property name).

Chapter I Basic Information of Property

Article 1 Basic information of real estate:

The name of the property;

Attribute type;

Location;

Building area.

There are four areas of property management: east to south and west to north. (See Annex I for the plan and Annex II for the property composition)

Chapter II Service Content and Quality

Article 2 In the property management area, the prophase property management services provided by Party B include the following contents:

1. Maintenance, conservation and management of the * * * part of the property (see Annex III for details of the * * * part of the property);

2. Operation, maintenance, conservation and management of facilities and equipment used in the property (see Annex 4 for details of facilities and equipment used in the property);

3. Cleanliness of the parts used by the property and related sites, collection and removal of garbage, and dredging of rainwater and sewage pipes;

4. Maintenance and management of public greening;

5. Vehicle parking management;

6 to assist in the management of public order maintenance, security and other matters;

7. Decoration management services;

8. Property file management.

Article 3 In the property management area, other services provided by Party B include:

1.；

2.；

3.。

Article 4 The preliminary property management services provided by Party B shall meet the agreed quality standards (see Annex 5 for the quality standards of preliminary property management services).

Article 5 Individual owners may entrust Party B to provide maintenance and other services for the exclusive part of their property, and the service contents and fees shall be negotiated by both parties separately.

Chapter III Service Fees

Article 6 The property service charges in this property management area shall be in the following ways:

1. Contract drying system

The property service fee shall be paid by the owner according to the construction area of the property, and the specific standards are as follows:

Multi-storey residence: RMB/month. m2；

High-rise residence: RMB/month. m2；

Villa: RMB/month. m2；

Office building: RMB/month. m2；

Commercial property: RMB/month. m2；

Property: RMB/month. m2。

Property service fees are mainly used for the following expenses:

(1) Manage the salary, social insurance and welfare expenses of service personnel;

(2) Daily operation and maintenance expenses of * * * parts of the property and * * facilities and equipment:

(3) cleaning expenses of the property management area;

(4) Greening and maintenance costs in the property management area;

(5) Maintenance cost of regional order in property management;

(6) office expenses;

(seven) depreciation of fixed assets of property management enterprises;

(8) Used parts of the property, used facilities and equipment and public liability insurance fees;

(9) Statutory taxes and fees;

(10) profits of property management enterprises;

( 1 1)。

Party B shall charge the property service fee according to the above standards, and provide services according to the service content and quality standards agreed in this contract, and Party B shall enjoy or bear the surplus or loss.

2. Salary system

Property service funds shall be paid in advance by the owner according to the construction area of the property owned by him. The specific standards are as follows:

Multi-storey residence: RMB/month. m2；

High-rise residence: RMB/month. m2；

Villa: RMB/month. m2；

Office building: RMB/month. m2；

Commercial property: RMB/month. m2；

Property: RMB/month. m2。

The property service fund received in advance consists of property service expenditure and Party B's remuneration.

The property service fee belongs to the paid owner and is managed by Party B, which is mainly used for the following expenses:

(1) Manage the salary, social insurance and welfare expenses of service personnel;

(2) Daily operation and maintenance expenses of * * * parts of the property and * * facilities and equipment:

(3) cleaning expenses of the property management area;

(4) Greening and maintenance costs in the property management area;

(5) Maintenance cost of regional order in property management;

(6) office expenses;

(seven) depreciation of fixed assets of property management enterprises;

(8) Used parts of the property, used facilities and equipment and public liability insurance fees;

(9)。

Party B shall take the following methods to extract remuneration:

(1) Party B shall withdraw the property service funds received in advance according to the standard of RMB (month/quarter/year).

(2) Party B (month/quarter/year) shall withdraw according to the proportion of% of the property service funds receivable.

The expenditure on property services shall be fully used for the expenditure agreed in this contract. After the annual settlement of property service expenditure, the balance will be transferred to the next year to continue to be used; The insufficient part of the annual settlement of property service expenditure shall be borne by all owners.

Article 7 The owners shall pay the property service fee (property service fund) from.

If the completed property that has been included in the property management scope but has not been sold, or fails to be delivered to the property buyer on time due to Party A's reasons, the property service fee (property service fund) shall be paid by Party A in full. ..

If the owner and the user of the property agree that the user of the property shall pay the property service fee (property service fund), the owner shall bear joint and several liability from the agreement. The owner shall promptly notify Party B in writing of the payment agreement between the owner and the property user.

The property service fee (property service fund) is paid on an annual/quarterly/monthly basis, and the owner or the user of the property will fulfill the payment obligation at (the specific time of each payment).

Article 8 If the property service fee is charged, Party B shall announce the annual plan of property management and the annual budget and final accounts of property service funds to all owners, and announce the income and expenditure of property service funds to all owners once a year.

In case of any dispute over the income and expenditure of property service funds, Party A and Party B agree to settle it in the following ways:

Chapter IV Property Management

Ninth parking fees take the following ways:

1. The parking lot belongs to all owners * * *, and the parking space user shall pay the parking fee to Party B according to the standard of outdoor parking space RMB/month and garage parking space RMB/month.

Party B shall withdraw the parking management service fee from the parking fee according to the standards of outdoor parking space/month and garage parking space/month.

2. If the parking lot is owned by Party A and entrusted to Party B for management, the owner and the property user have the priority to use it, and the parking space user shall pay the parking fee to Party B according to the standards of outdoor parking space/month yuan and garage parking space/month yuan.

Party B shall withdraw the parking management service fee from the parking fee according to the standards of outdoor parking space/month and garage parking space/month.

3. If the ownership or use right of the parking space in the parking lot is purchased by the owner, the parking space user shall pay the parking management service fee to Party B according to the standards of open parking space/month yuan and garage parking space/month yuan.

Article 10 Party B shall sign a written parking management service agreement with the users of parking spaces in the parking lot, specifying the rights and obligations of both parties in the use of parking spaces and parking management services.

Article 11 Clubs in this property management area belong to (all owners/Party A).

If the club entrusts Party B to operate and manage, Party B shall charge the owners or property users who use the club according to the following standards:

Article 12 The parking lot, clubhouse and other properties and public facilities owned by all owners in this property management area are entrusted to Party B for operation, and the operating income is distributed according to the following agreement:

Chapter V Acceptance of Property

Article 13 When Party B undertakes the house, Party A shall cooperate with Party B to inspect the following parts and facilities of the house:

Article 14 Party A and Party B confirm that there are the following problems in the inspected parts, facilities and equipment of the house:

Party A is responsible for solving the above problems, and the solutions are as follows:

Article 15 After the signing of this contract, Party A and Party B shall inspect the parts and facilities of this property in accordance with the provisions of the preceding article, and sign a confirmation letter as the basis for defining their respective responsibilities for development, construction and property management.

Article 16 When Party B undertakes the property, Party A shall hand over the following materials to Party B:

1. Completion acceptance data such as completion general plan, single building, structure, equipment completion drawing, supporting facilities and underground pipe network project completion drawing;

2. Technical data on installation, use and maintenance of facilities and equipment;

3. Property quality warranty documents and property use instruction documents;

4.。

Article 17 Party A guarantees that the delivered house meets the acceptance standards stipulated by the state, and undertakes the warranty responsibility of the house according to the warranty period and scope stipulated by the state.

Chapter VI Use and Maintenance of Property

Article 18 Before the establishment of the owners' meeting, Party B shall cooperate with Party A to formulate rules and regulations on the use of * * * parts and facilities, the maintenance of public order and environmental sanitation in the property management area.

When Party B provides management services according to the rules and regulations, Party A, the owner and the user of the property shall give necessary cooperation.

Article 19 Party B may take necessary measures such as persuasion and persuasion. Stop owners and property users from violating the temporary convention and property management rules and regulations in the property management area.

Article 20 Party B shall promptly notify all owners of major matters related to property management within the property management area, promptly handle complaints from owners and property users, and accept the supervision of Party A, owners and property users.

Article 21 If it is really necessary for Party A to temporarily occupy or dig roads and sites within the property management area for the maintenance of property or public interests, it shall obtain the consent of the relevant owners and Party B; If Party B really needs to temporarily occupy or dig roads and sites in the property management area, it shall obtain the consent of the relevant owners and Party A. ..

Temporary occupation and excavation of roads and sites within the property management area shall be restored to the original state within the agreed time limit.

Article 22 Party B shall sign a written decoration management service agreement with the owner or property user of the renovated house, and stipulate the construction time, garbage removal and treatment, decoration management service fee, etc. , and inform the owner or property user in advance of the prohibited behavior and matters needing attention in decoration.

Article 23 Party A shall provide Party B with property management premises that can be directly put into use according to relevant regulations (specific time).

The building area of the property management house is square meters, including: office building.

Square meters, located in; The accommodation room is square meters, located in; The room covers an area of square meters and is located in.

Article 24 The property management house belongs to all owners, and Party B can use it free of charge within the term of this contract, but its use shall not be changed.

Chapter VII Special Maintenance Funds

Article 25 Deposit of special maintenance funds.

Twenty-sixth special maintenance fund management.

Twenty-seventh the use of special maintenance funds.

Twenty-eighth special maintenance funds continue to raise.

Chapter VIII Liability for Breach of Contract

Article 29 If Party A violates the stipulations in Articles 13, 14 and 15 of this contract, so that Party B's management services can't meet the service contents and quality standards agreed in Articles 2, 3 and 4 of this contract, Party A shall compensate the owners and property users for the losses incurred.

Article 30 In addition to the provisions of the preceding article, if Party B's management service fails to meet the service content and quality standards agreed in Articles 2, 3 and 4 of this contract, it shall pay liquidated damages to Party A and the owner according to the standards.

Article 31 If Party A, the owner or the user of the property violates the stipulations in Article 6 and Article 7 of this contract and fails to pay the property service fee (property service fund) in full and on time, they shall pay liquidated damages to Party B according to the standard.

Article 32 If Party B violates the provisions of Articles 6 and 7 of this Contract and raises the property service fee without authorization, the owner and the property user have the right to refuse to pay the overpaid portion; If Party B has collected it, the owner and the property user have the right to ask Party B to double it.

Article 33 If Party A refuses or delays the performance of the warranty obligations in violation of Article 17 of this contract, the owner and the property user may repair it by themselves or entrust Party B to repair it, and Party A shall bear the maintenance expenses and other losses caused thereby.

Article 34 Party B shall not be responsible for the following situations:

1. The property management service is interrupted due to force majeure;

2. Party B has fulfilled its obligations under this contract, but losses are caused by inherent defects in the house itself;

3. Because of the need to maintain the parts and facilities of the property, and notify the owner and the property user in advance, temporarily stop the water and power supply and stop the use of the facilities and equipment of the property, causing losses;

4. Losses caused by operation obstacles of water supply, power supply, gas supply, heat supply, communication, cable TV and other facilities and equipment not for Party B's responsibility;

5.。

Chapter IX Other Matters

Article 35 The term of this contract shall be from the date of month to the date of month. However, during the term of this contract, when the property service contract signed by the owners' committee on behalf of all owners and the property management enterprise comes into effect, this contract will automatically terminate.

Article 36 If the owners' meeting is not established one month before the expiration of this contract, Party A and Party B shall reach an agreement on extending the term of this contract; If both parties fail to reach an agreement, Party A shall hire a new property management enterprise before the expiration of this contract.

Article 37 Upon the termination of this contract, Party B shall timely and completely hand over the property management premises, property management related materials and other properties belonging to all owners to the owners' committee; If the owners' committee is not established, it shall be handed over to Party A or the custodian.

Article 38 The house sales contract signed by Party A and the purchaser shall include the contents agreed in this contract; The property buyer promises to accept the contents of this contract by signing the Property Purchase and Sales Contract.

Article 39 The owner may agree on the rights and obligations of this contract with the property user, but if the property user violates this contract, the owner shall bear joint and several liabilities.

Article 40 The annexes to this contract are an integral part of this contract and have the same legal effect as this contract.

Article 41 For matters not covered in this contract, both parties may sign a written supplementary agreement separately. If the supplementary agreement conflicts with this contract, this contract shall prevail.

Article 42 Any dispute arising from the performance of this contract shall be settled by both parties through consultation. If negotiation fails, both parties can choose the following 1 method:

1. Apply to the Arbitration Commission for arbitration;

2. Bring a lawsuit to the people's court.

Article 43 This contract is made in duplicate, with each party holding one copy.

Party A (signature) and Party B (signature)

Legal representative

50. The owners' committee and the property management enterprise only reached an oral agreement and did not sign a written property service contract. Does an oral agreement have legal effect?

A residential property management company and the owners' committee agreed that the residential area should be managed by the property management company. The two sides verbally agreed on the service items and fees, but did not sign a written property service contract. After taking over the property, the property management company found that the external facilities of the community were in disrepair for a long time and the surrounding environment needed to be cleaned up, so the community was completely rectified and the property management company paid a sum of money for it. When the property management company announced that it would raise the service fee, the owner suggested that the property service fee agreed orally was not so high and refused to pay the excess service fee. The property management company then filed a lawsuit with the people's court.

Analysis according to law

In this case, the property management company and the owners' committee did not sign a written contract, so the two sides have different understandings of the scope of property management. The property management company's rectification of the community belongs to the reasonable scope of daily management, and the expenses incurred are reasonable and justified. Residential owners should pay the cost overruns of property management companies.

According to the theory of contract law, property service contract is an independent contract type, which belongs to the category of nameless contract in contract law. There are similarities between the property service contract and the entrustment contract in the Contract Law, and they also have their own distinct characteristics. Article 10 of the Contract Law stipulates: "The parties may conclude a contract in written form, orally or in other forms. If laws and administrative regulations stipulate that it should be in writing, it should be in writing. If the parties agree to be in writing, it shall be in writing. "

Although it is simple and quick to conclude a contract orally, it is difficult for the parties to provide evidence when there is a dispute because there is no necessary written evidence, and it is also difficult for the judicial organs to find out the truth. When concluding a written contract, record the rights and obligations of both parties in written form, and the contract disputes are well documented, which is convenient for distinguishing responsibilities. Property service contract is an important basis for determining the rights and obligations of owners and property management enterprises in property management activities. Whether the contract is concluded in accordance with the law, whether the content is detailed and whether it is operable plays an important role in safeguarding the legitimate rights and interests of both parties in property management activities. Therefore, Article 35 of the Property Management Regulations stipulates: "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. "

Then, if the property management company and the owners' committee do not sign a written contract, but only reach an oral agreement, what will be the legal consequences? There is no provision in the Property Management Regulations. According to Item 5 of Article 52 of the Contract Law, a contract that violates the mandatory provisions of laws and administrative regulations is invalid. However, if the contract form violates the provisions of laws and regulations, it does not necessarily lead to the invalidity of the contract. Article 36 of the Contract Law stipulates: "A contract is concluded in writing as stipulated by laws and administrative regulations or agreed by the parties, but if one party has fulfilled its main obligations and the other party accepts it, the contract is established." In this case, the two parties agreed on property management orally without concluding a written contract, which violated the provisions of Article 35 of the Property Management Regulations. However, the property management company managed the property, fulfilled the obligations agreed by both parties, and the owner accepted the services of the property management company. According to Article 36 of the Contract Law, oral agreement has legal effect.

Property management enterprises shall provide corresponding services in accordance with the stipulations of the property service contract. Property management matters generally include the following aspects: (1) Use, management, maintenance and update of the parts, equipment and facilities used by the property; (2) Environmental sanitation and greening management services; (3) Public order and security management, such as access management and vehicle parking management; (4) Property archives data storage service. Of course, in addition to the above public management matters, individual owners can also entrust property management companies to provide special services. Article 44 of the Regulations on Property Management stipulates: "Entrusted by the owners, property management enterprises can provide services beyond those stipulated in the property service contract, and the service remuneration shall be agreed by both parties." In this case, the property management company maintains the dilapidated external facilities of the community and cleans up the surrounding environment of the community, which is a daily management service matter. The management fee paid in advance for the rectification of the property is reasonable and justified, and the owner shall bear the cost of overspending.

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So how to determine the cost of property services? Who will pay the property service fee? What legal responsibilities should people who don't pay property management fees bear?

Property service charges should follow the principles of rationality, openness and adaptability between fees and service levels, and distinguish the nature and characteristics of different properties. Owners and property management companies shall, according to the charging standards for 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. The owner shall pay the property service fee in accordance with the provisions of the property service contract. If the owner and the user of the property agree that the user of the property shall pay the property service fee, the owner shall bear joint and several liability from the agreement. Property that has been completed but has not been sold or handed over to the property buyer shall be paid by the construction unit. Owners in violation of the property service contract, overdue payment of property service fees, 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.

-Quoted from Yanbian People's Publishing House, Master of Law.