Identification of factual service in property management disputes

Identification of factual service in property management disputes

In recent years, with the rapid development of China's real estate industry, property management disputes between property management parties and owners have multiplied year by year, and issues related to the collection of property service fees account for a large proportion of disputes. Property management refers to the activities in which the owner selects a property service enterprise, and the owner and the property service enterprise, in accordance with the property service contract, repair, maintain and manage the houses, supporting facilities and related sites, and maintain the environmental sanitation and related order in the property management area. The basis of property management is that the owner signs a property service contract with the property service enterprise. What is the purpose of the contract? Property services? The realty service enterprise provides relevant services to the owner according to the contract, and the owner pays the realty service fee to the service provider while enjoying the realty service. Because the property service contract deals with service, and the quality of service is a factor that affects the normal performance of the property service contract, at present, the management system of property service enterprises in China is not standardized, the rules are not effectively implemented, the services provided by service providers are not recognized by service demanders, and disputes arising from charging property service fees are endless.

I. Overview of dispute settlement before the implementation of the Interpretation

What is discussed here is only the handling of disputes over the collection of property service fees after the expiration of the property service contract. No matter how to deal with it, there is an irrefutable premise of property fact service behavior. What is factual service? Although the realty service enterprise and the owners' committee have not signed a written realty service contract, but the owners have actually accepted the realty service, the realty service enterprise may require the owners to pay the corresponding realty service fee, which is the basis for the realty service enterprise to claim compensation. In judicial cases, no matter how puzzled and dissatisfied the owners are with the concept of factual service, the platform for resolving disputes is precisely based on the theory of factual service of property, and it is on this platform that property service enterprises and owners begin to fiddle with their own abacus.

The settlement of property management disputes is a process of mediation and consultation between property service enterprises and owners, and the result will inevitably make both the original defendant and the defendant give up part of their own interests. Property service enterprises will generally include the late payment fee caused by the owner's default on property management fees in the litigation request, so that they can have more space when giving up their interests. In fact, although the property service enterprises justly sue the owners to recover the property management fees, they actually don't know that their property services do have problems, and poor service quality will inevitably lead to many owners? Bargaining? Therefore, property services companies will use late fees to ask for directions first. In practice, there are many cases where the late payment fee due to property breach is much higher than the actual unpaid property service fee. Property service companies often give up late fees as their concessions after long-term consultations with owners. In this process, what owners have to do is to put out their dissatisfaction with property services one by one. These grievances are exactly what owners pay for property services? Bargaining? The capital. Owners often say that the quality of property services in their communities is the worst. There is no worst, only worse? This sentence is very appropriate to evaluate the services of many property service enterprises in several cases. Therefore, in most property management disputes, the problem of property service fees is constantly caused by the owners' problems in property service quality. Bargaining? Property service enterprises give up late fees, legal fees and part of property service fees? Price reduction? Be resolved in behavior.

Second, the interpretation of the dispute settlement mode after implementation

(1) time condition

Here, we still only discuss the situation that the property service enterprise requires the owner to pay the property service fee on the grounds of factual service after the property service contract expires. At this time, the property service enterprise requires the owner to pay. Property service fees shall be collected in two stages:

First, after the expiration of the realty service contract, the realty service enterprise requires the owner to pay the unpaid realty service fee before the expiration of the realty service contract, which is exactly the situation stipulated in the second paragraph of Article 9 of this Interpretation? Where a realty service enterprise requires the owner to pay the property fee in arrears, it shall be handled in accordance with the provisions of Article 6 of this Interpretation. ? Article 6 of this interpretation stipulates that if the owner refuses to pay the property fee without justifiable reasons or fails to pay the property fee within a reasonable period after being urged in writing, the people's court shall support the property service enterprise in requesting the owner to pay the property fee. Property service enterprises have provided services in accordance with the contract and relevant regulations, and the people's court will not support the owners' defense on the grounds that they do not enjoy or need to accept relevant property services. ? It is worth considering that, in the second half of this clause, the realty service enterprise has fulfilled its contractual obligations (providing the services agreed in the contract) in accordance with the stipulations of the realty service contract, and the owner cannot pay the realty service fee without accepting the relevant realty service, that is to say, the property management party has fulfilled its contractual obligations, and the owner should fulfill the corresponding contractual obligations.

It is true that if property service companies provide quality services, it is naturally difficult for owners to find excuses to refuse to pay property service fees; However, if the service of the realty service enterprise is flawed or defective, or even fails to perform a large part of the obligations stipulated in the realty service contract, and the owner refuses to pay the realty service fee on the grounds that the realty service enterprise fails to perform or fails to fully perform the contractual obligations, Article 3 of the Interpretation shall apply, which stipulates that the realty service enterprise fails to perform or fails to fully perform the maintenance, conservation, management and repair obligations stipulated in the realty service contract or determined by laws, regulations and relevant industry norms, and the owner requests the realty service enterprise to continue to perform and take remedial measures. ? In judicial practice, when the owners take the defects or defects in the property service as the defense reason for not paying the property service fee, most owners require the property service enterprises to lower the property service fee standard. How should this request be recognized? The author believes that the liability for breach of contract can be divided into continuing to perform, taking remedial measures, paying liquidated damages or compensation, etc. Among them, it is common to take remedial measures in commodity sales. For example, if the quality of the delivered product does not conform to the agreement, the injured party can reasonably choose to ask the other party to bear the liability for breach of contract according to the nature of the subject matter and the size of the loss. In the same way, what about the future? Service? As the object of the contract, in the realty service contract, when the realty service enterprise fails to perform or fails to fully perform the realty service contract, the owner can of course ask the realty service enterprise to reduce? Price? . Therefore, the liability for breach of contract when a realty service enterprise fails to perform or fails to fully perform its contractual obligations shall include lowering the charging standard of realty service.

Secondly, after the property service contract expires, the property service enterprise requires the owner to pay the property service fee after the property service contract expires. After the property service contract expires, because the owner and the property service enterprise did not renew the property service contract, the owner did not sign a new property service contract with other property service enterprises for various reasons. At this time, although there is no property service contract between the property service enterprise and the owner, the property service enterprise is the party providing property services. Who is the owner? Accept? On the one hand, property services have just formed the factual service situation mentioned above. Because of this, the author thinks that it can be supported for property service enterprises to ask owners to pay property service fees at this factual service stage. Let's take a look at the first paragraph of Article 9 of this interpretation, which stipulates as follows: After the rights and obligations of the property service contract are terminated, if the owner requests the property service enterprise to refund the property fee that has been received in advance but has not yet provided the property service, the people's court shall support it. ? The first half of the "Regulations" includes the following contents: the owner prepays the property service fee to the property service enterprise, but the payment period of the property service fee has not yet expired after the expiration of the contract; In the second half of the sentence? Property services have not been provided during the period? It is the condition of the property fee required by the owner. That is to say, when the property service contract expires and the owner requests to refund the prepaid property fee, if the property service enterprise provides the de facto property service during this period, the owner's request will be unfounded.

To sum up, under the condition of single time, when the property service contract expires, the property service enterprise may still ask the owner to pay the property service fee on the grounds of factual service. If you want to deny the fact service, you need to have behavioral conditions.

(2) Behavior conditions

Article 10 of this Interpretation stipulates that if the owners' committee requests the realty service enterprise to withdraw from the realty service area after the termination of the rights and obligations of the realty service contract and hand over the realty service place and related facilities, as well as the relevant materials necessary for realty service and the special maintenance funds entrusted by it, the people's court shall support it. After the termination of the rights and obligations of the property service contract, if the property service enterprise refuses to withdraw or hand over and requests the owner to pay the property fee on the grounds that there is a de facto property service relationship, the people's court will not support it. ?

Let's look at the owners' committee of the subject. The owners' committee refers to the organization elected by the owners in the property management area in accordance with the rules of procedure of the owners' congress to represent the interests of the owners. Article 75 of the Property Law stipulates that the relevant departments of the local people's government shall give guidance and help to the establishment of the owners' meeting and the election of the owners' committee. ? Article 10 of the Property Management Regulations stipulates that the owners in the same property management area shall, under the guidance of the real estate administrative department of the district or county people's government where the property is located, set up the owners' meeting and elect the owners' committee. ? Theoretically, due to the provisions of some laws and regulations, the establishment procedure of the owners' committee is not complicated and there are rules to follow. However, in reality, it is not an easy task to really set up the owners' committee. Just holding the owners' meeting will be very difficult because of the large number of owners and complex levels. Without the owners' meeting, there would be no owners' committee. The reasons and solutions for the difficulty in setting up the owners' committee are not discussed here. Let's go back to the tenth explanation. What if the property service contract expires and the owners of the community have not yet established the owners' committee?

Let's look at the behavior that the owners' Committee needs to do. According to the provisions of this article, after the expiration of the realty service contract, if the owner fails to renew the contract with the realty service enterprise, and the owner has signed or will sign the realty service contract with the new realty service enterprise, the owners' committee may, after handling the handover procedures, request the original realty service enterprise to withdraw from the realty service area. After the expiration of the property service contract, if the property service enterprise refuses to quit and asks the owner to pay the property fee, the owner can rightfully refuse to pay. This provision is a blow to many property service enterprises with poor service quality and unwilling to go. As long as the owners set up the owners' committee to ask them to go, they have to go, which plays a very important role in continuously improving their own business level and preventing the decline of property service quality. But at the same time, this provision itself is also a condition: it must be issued by the owners' committee to the property service enterprises? March orders? , the owner can say to the fact service of the property service enterprise? No? .

(3) Problems arising from the lag in the establishment of behavioral conditions

If the realty service contract between the realty service enterprise and the owner expires, and the owners' committee has not been established or has been established, but the original realty service enterprise is not required to go through the handover formalities in time and then withdraw from the realty service area for various reasons, should the owner pay the realty service fee from the expiration of the contract to the request for withdrawal? That is, whether there is still factual service behavior between property service enterprises and owners during this period. The author believes that the owner can refuse to pay the property service fee during this period. Judging from the provisions of the second paragraph of Article 10 of this Interpretation, if a realty service enterprise refuses to withdraw or hand over on the grounds that there is a de facto realty service relationship, and requests the owner to pay the realty fee after the rights and obligations of the realty service contract are terminated, the people's court will not support it. The author believes that in the terms? Termination of rights and obligations of property service contract? It should be understood that after the expiration of the realty service contract, the rights and obligations of the realty service contract are terminated if both parties fail to renew the contract or sign a new contract. Therefore, the property service enterprise requires the owner to pay the property service fee during this period, and the owner can refuse.

However, another problem has followed: before the property service contract expires and the owners' committee asks the original property service enterprise to quit, if an owner has paid the property service fee during this period, can the owner ask the property service enterprise to refund it? The author thinks that the realty service enterprise is the realty service provider and the owner is the user of the realty service. After the expiration of the property service contract, the owner voluntarily pays the property service fee to the property service provider, which is the recognition of the property service behavior. At this time, it can be concluded that the property service enterprise and the owner have formed a property fact service, and the owner cannot ask for a refund of the paid property service fee.

The implementation of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Property Service Disputes has played a positive role in standardizing the behavior of property service enterprises, reducing property management disputes and promoting the standardization and institutionalization of the property service market. In terms of content, the Interpretation provides for property factual service: when certain conditions are established, the owner may refuse to pay the property service fee generated by the property factual service. However, in the absence of specific conditions, property fact service still exists between property service enterprises and owners, and it is too early to say that property fact service has been eliminated.

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