Owner's self-management and the governance of property management institutions

Owners' autonomous management organizations have different regulations and practices in different places. Shanghai, Shenzhen and other places have stipulated some practices of convening owners' congress (owners' congress). In some places, only owners' committees are established. This section focuses on the laws and regulations in Shanghai. (A) the property management area

1. Delimitation conditions of property management area

The property management area is the property scope managed by the owners' committee. Its demarcation has the following conditions: (1) The original design constitutes a natural neighborhood and a closed community. Natural block is a relatively independent residential area formed naturally in urban construction. In recent years, residential quarters formed in real estate development are generally composed of 4-5 residential groups, with a land area of 15-20 hectares and a building area of15-200,000 square meters. According to the government's regulations on the construction of residential areas, residential areas should be equipped with neighborhood committees, schools, nurseries, kindergartens, cultural activity rooms, comprehensive shops, bicycle sheds and other public facilities. Water, electricity, coal and other public facilities in the community are highly correlated, so they are built and delivered together during development, and then residents are allowed to live in. This kind of community, mostly closed management, is called closed community. A closed community is divided into a property management area, which is conducive to the management of houses and related facilities.

(two) the scope of the property management area is determined by the district and county real estate administrative departments according to the relevant situation of buildings and ancillary facilities, which can be one or several buildings or a group of buildings. After demarcation, notify the managed related streets and property management companies. The district and county real estate administrative departments shall mark it on the map of this area. Once specified, it shall not be changed arbitrarily without special circumstances. In this way, the regional scope of property management is relatively fixed, which is conducive to the stability and continuity of the management of owners' committees and property management companies.

2. Property not within the property management area.

For houses with public facilities that are not closely related to houses, or single houses with only one or several owners, or houses that are not included in the property management area, the owners can be responsible for housing management by themselves, or they can entrust property management enterprises to implement professional property management.

For some units, such as institutions, enterprises, schools and so on. , unit internal or external planning and construction of employee housing, can not form a residential area, and did not entrust the housing management department management, can also be set up by the owners or users of housing management team, with the original unit general affairs, logistics departments to implement property management, or entrust property management companies to implement professional property management.

(II) Owners' Housing Management Team

The owners' housing management group, referred to as the housing management group or the owners' group, is elected by the owners in this building through consultation, and its members should have full capacity for civil conduct, generally consisting of more than three people.

In a property management area, the members of the housing management team shall be determined and apportioned according to the construction area. For buildings with the same construction area (or one level in the building), the number of members of the owners' housing management team shall be the same; Buildings with different building areas (or one level in a building) are elected according to the number of allocated members. Generally, one team member will be produced for every 500- 1000 square meters of construction area. Selecting and appointing members of the owners' team is the basic work of owners' self-management. Let the owners and relevant users of this building participate in and understand the selection process of the members of the owners' group, so that the owners' group has a certain mass base. Residential units for sale should require streets and neighborhood committees to cooperate with the establishment of the first owners' group. After the establishment of the owners' group, its members should enter the role as soon as possible.

The owners' group has the following functions:

(1) represents and safeguards the owner's rights and interests, and is responsible for the management of the house. Understand the building situation, building structure, area and equipment such as elevators and pumps. Of this building.

(2) Listen to and reflect the owner's suggestions and opinions on housing repair and other related aspects. Communicate and contact with owners and users frequently;

(three) to decide the use and payment of the building decoration fund, and to be responsible for raising the residential decoration fund when it is insufficient;

(4) Deciding on the repair of the XX part and the XX equipment of the house;

(five) to assist in mediating disputes over the use and repair of houses;

(six) to implement the decisions of the owners' congress and the owners' committee;

(7) urge the owners to abide by the owners' convention, housing use convention, etc.

All decisions of the owners' group that set up the owners' committee shall not violate the decisions of the industry committee.

(three) the first owners' meeting or owners' congress

1. Conditions for convening the first owners' meeting or owners' congress

In a property management area, when the number of owners is small, the owners' meeting shall be held; When the number of owners is large, the owners' meeting shall be held, and the representative members shall be composed of members of the owners' team. According to the relevant documents of Shanghai Real Estate Bureau, if the number of owners exceeds 100, the owners' meeting shall be held, and its representative members shall generally not exceed 100.

The first owners' congress or owners' congress shall be organized by the district and county real estate management department where the property is located in conjunction with the housing sales unit. If one of the following conditions is met, the first owners' meeting or owners' congress shall be held.

(1) The construction area of public housing sold exceeds 30%;

(2) 50% of the sales floor area of new commercial housing;

(3) The first house in this property management area has been actually delivered to the owner for use for two years.

2. Prepare for the first owners' meeting or owners' congress.

When the conditions for convening the first owners' meeting or owners' congress are met, the selling unit shall report the building area, selling time, list of owners and other materials to the district/county Housing Authority, and the district/county Housing Authority shall organize the owners of the selling unit to make the following preparations within 45 days after receiving the materials:

(1) Organize the establishment of the preparatory group for the first owners' meeting or owners' congress. Its members are composed of the district, county housing authority, housing sales units and owners' representatives, and residents' committees may be invited to participate. Once the preparatory group is established through consultation, the preparatory work will be carried out;

(two) the members of the owners' group are produced through consultation, and the members of the owners' group are generally the owners' representatives;

(3) Recommend candidates for the owners' committee through consultation. According to the proportion of construction area, the owners include the owners of public houses and the developers who own the property to recommend candidates;

(four) to draft the articles of association of the owners' committee and the draft owners' convention, you can refer to the relevant model texts of this Municipality, listen to the opinions of the owners and relevant personnel, and make amendments in light of local conditions;

(5) Determine the time and place of the meeting and make preparations for the meeting.

The whole preparatory work can be carried out under the auspices of the real estate administrative department where the property is located, and the development and construction unit and the preliminary property management unit should cooperate closely. During the preparatory period, the preparatory group is elected, and the decisions and opinions discussed at each meeting should be recorded when necessary.

3. Procedures for the first owners' congress or owners' congress

Owners' congress or owners' congress is an important organizational form to exercise owners' autonomy and management rights and decide management matters. In order to reflect the will of most owners and make decision-making more democratic, more than half of the owners should attend the owners' meeting, and the decisions made should be passed by more than half of all owners; The owners' meeting shall be attended by more than half of the owners' representatives, and the decisions made shall be passed by more than half of all the owners' representatives.

Examining and approving the articles of association of the owners' committee, examining and approving the owners' convention and electing the owners' committee are three important tasks of the first owners' congress or owners' congress. It is necessary to formulate the articles of association of the owners' committee with reference to the model text of the relevant administrative departments, and make provisions on the organization, responsibilities, meetings, funds and office supplies of the owners' committee. The owners' convention should also refer to the model text, clarify the legitimate rights and interests of the owners and property users, and stipulate the relevant obligations of the owners and property users to use the property safely and reasonably, such as not damaging the load-bearing structure of the house and damaging the appearance of the house. The election method for electing members of the owners' committee shall be implemented in accordance with the articles of association of the owners' committee. The convening of the owners' meeting shall be approved by more than half of all owners; If the owners' meeting is held, it must be passed by more than half of all owners' representatives, not by such a simple majority.

The procedures for the first owners' congress or owners' congress are generally as follows:

(1) The preparatory group of the conference introduces the preparations for the conference;

(2) The preparatory group of the conference introduces the candidates of the owners' committee, and the candidates can also introduce themselves;

(3) Examining and adopting the articles of association of the owners' committee and the owners' convention;

(four) members of the owners' committee are elected by members of the owners' congress or representatives of the owners' congress;

(five) to consider and decide on other major issues of property management.

(four) the functions and powers of the owners' congress or the owners' congress

1. Members of the owners' congress or owners' congress attend regular meetings and temporary meetings.

The owners' meeting is composed of all the owners of residential and non-residential houses in the property management area, including the owners of sold and unsold public houses, sold and unsold commercial houses and old private houses. When the owners' meeting is held, all owners shall attend. If he cannot attend for some reason, he may entrust an agent to attend according to law.

The owners' representatives of the owners' congress shall be produced according to the proportion of various properties in the property management area, including public houses, commercial houses and old private houses. When the owners' meeting is held, the natural person owners' representatives shall attend, and generally do not entrust an agent; The representative of the owner of a legal person or other organization may entrust an agent to attend in writing. For example, representatives of public housing owners and public housing property owners, that is, district and county real estate administrative departments, can entrust relevant personnel of district and county public housing asset management companies as agents to attend the owners' meeting. The written power of attorney may be printed by the owners' congress or the convener of the owners' congress, the owners' committee or the real estate administrative department. Whether it is the owners' congress or the owners' congress, non-owners of houses, such as tenants, should be invited to attend the meeting according to the building or a certain proportion, and representatives of neighborhood committees should also be invited to attend. Representatives attending the meeting have no right to vote. If the convening of the owners' congress or owners' congress involves the re-election or recall of members of the owners' committee, the owners' committee shall notify the district and county housing management bureaus to send personnel to attend the meeting as nonvoting delegates. The owners' committee shall convene an owners' congress or owners' congress at least once a year to summarize all the property management work in this year's region and decide on major issues of property management. /kloc-If more than 0/5% of the owners or owners' representatives propose, the owners' committee shall convene the owners' meeting or owners' congress within 30 days after receiving the proposal. If the owners' committee is not convened, the owners and owners' representatives may report to the district/county housing authority, which shall urge the owners' committee to convene. If the owners' committee is still not convened after being urged, the district/county housing authority may organize the owners to convene the owners' meeting or the owners' congress. More than 65,438+05% of the owners or owners' representatives have made a decision on the proposal after proposing to convene the owners' meeting or owners' congress. Generally, the owners' meeting or owners' congress will not be convened again with the same proposal within six months.

2. The functions and powers of the owners' congress or owners' congress

The owners' congress or the owners' congress shall exercise the following functions and powers:

(1) Elect and dismiss members of the owners' committee;

(2) Examining and adopting the articles of association of the owners' committee and the owners' convention, and amending the articles of association of the owners' committee when necessary;

(three) to listen to and consider the work report of property management services, including the work report of the owners' committee, especially the work report on the selection of property management companies by the owners' committee and the work report of property management companies;

(four) to decide on other major matters of property management. For example, determine the way, source and standard of raising funds for the owners' committee; The way and quantity of raising funds when the property maintenance fund is insufficient; Building or building new buildings and structures in the property management area. In other words, major management matters within the property management area must be discussed, decided or approved by the owners' congress or the owners' congress. If the owners' congress or the owners' congress thinks that the decision of the owners' committee is inappropriate, it may be revoked.

(5) Owners' Convention

Owners' convention is a code of conduct formulated by all owners. Generally, it can be formulated by the owners' congress or the preparatory group of the owners' congress and submitted to the owners' congress or the owners' congress for deliberation and approval.

The owners' convention shall follow the relevant laws, regulations, administrative rules and normative documents, and be formulated according to the actual situation of the property management area. When formulating, you can refer to the model text formulated by the real estate administrative department and modify and supplement it on the basis of the text. Generally speaking, it is necessary to make clear that the use, operation and transfer of property must abide by legal norms, what are the prohibited acts in the use of property, how to manage illegal acts, and the construction of public morality and spiritual civilization in community management. The Ministry of Construction's "Measures for the Administration of New Urban Residential Areas" points out that a residential area management committee should be set up in residential areas, composed of representatives elected by the owners and users of residential real estate. Beijing stipulates that the residential property management committee consists of real estate owners, users' representatives and residents' committees. Shenzhen is elected by the owners of the community. The Regulations of Shanghai Municipality on Residential Property Management stipulates that the owners' committee shall be elected by the owners' congress or the owners' congress, and the members of the owners' committee shall be the owners.

(A) the establishment of the owners' committee steps

1. Election

In a property management area, when the first owners' meeting or owners' congress is held, that is, the construction area of public houses reaches more than 30%, or the construction area of newly-built commercial houses reaches more than 50%, or the houses have been sold for two years, that is, the conditions for electing owners' committees are met.

Members of the owners' committee shall be held by the owners, and users who are not owners shall not be held as members of the owners' committee. The administrative departments of real estate and the units selling houses shall assist the owners in preparing and selecting the candidates for the first owners' committee, solicit the opinions of the owners' groups, and take the owners who are law-abiding, have certain legal knowledge of property management, are enthusiastic about public welfare undertakings and can perform their duties as the candidates for the owners' committee, and submit them to the first owners' congress or the owners' congress for election. The number of owners' committees should be determined according to the scale of the property management area, and generally it is composed of 5- 15 people.

Members of the owners' committee shall not concurrently hold the post of property management enterprise in the property management area. A member of a property management enterprise who concurrently serves as the owner in the management area cannot serve as a member of the owners' committee.

approve

From the date when the owners' committee is elected by the first owners' congress or owners' congress 15 days, it shall register with the local district or county real estate management department. The real estate management department shall complete the registration within 15 days from the date of accepting the application for registration; If it does not meet the registration conditions, it shall not be registered, and the applicant shall be notified in writing whether to register. When the written notice of approval and registration is received, the owners' committee is formally established and its term of office officially begins. When applying for registration with the district or county real estate management department, the following documents must be submitted:

(1) An application for registration of the establishment of the owners' committee, including the following contents: the name of the owners' committee, the scope of the property management area under its jurisdiction, the construction area, the area, time and proportion of houses sold, and the number of households selling houses;

(2) Minutes of the first meeting of the owners' congress or owners' congress, including the number of people who should attend the meeting and the roster, the actual number of people who attended the meeting and the roster, the voting results, the decisions made at the meeting, etc. ;

(3) If the office space of the owners' committee is borrowed or rented, there must be an agreement or contract.

(two) the nature and legal status of the owners' committee

The first paragraph of Article 6 of the Regulations of Shanghai Municipality on Residential Property Management stipulates: "The owners' committee is an organization that represents all the owners in the property management area to implement autonomous management of the property". In civil activities, the owners' committee can act as a party in civil litigation. The owners' committee has the characteristics of democracy, autonomy and public welfare.

Owners Committee is a new thing in the reform of housing management system, and its legal status is not consistent because of the different establishment procedures in different places.

1. Social organizations

Some cities stipulate that the owners' management committee shall obtain the legal person status of social organization after being approved by the civil affairs department according to law. Legal person registration certificate, a social organization, was awarded on the day of the establishment of the CMC. As a social organization, the owners' committee independently exercises civil rights and assumes civil liabilities.

2. Other organizations

According to the relevant regulations on the registration and management of social organizations, the same or similar social organizations may not be established repeatedly in the same administrative area. Generally speaking, there are at least hundreds and thousands of owners' committees in a large and medium-sized city. Take Shanghai as an example. By the end of 1997, there were more than 1600 owners' committees. Therefore, if the owners' committee is a community, there will be many social groups similar to the owners' committee in a city or region. Article 49 of the Civil Procedure Law stipulates that "citizens, legal persons and other organizations may be parties to civil litigation". The owners' committee is elected by the owners' congress or the owners' representatives and established with the approval of the real estate administrative department. It is established according to law, has certain organization and property, and is called "other organization" in the civil procedure law. Although not qualified as a legal person, as a legal person organization, it can fully exercise its civil rights and bear civil liabilities.

(three) the term and authority of the owners' committee

1. semester

The term of office of the owners' committee is two years and may be re-elected. Three months before the expiration of the term of office, a new owners' committee shall be elected; The election work shall be presided over by the original owners' committee, and the real estate administrative department shall send personnel to participate; The list of the new owners' committee shall be reported to the district and county housing authority for the record.

Members of the owners' committee are unable to perform their duties due to personal property rights transfer, illness, long-term going abroad and other reasons. , and shall notify the owners' committee in writing. In the articles of association of the owners' committee, the by-election method for the vacancy of the members of the owners' committee may be stipulated. If there is no agreement in the articles of association, a general meeting of owners or a general meeting of owners may be held within six months to conduct a by-election.

The owners' committee is an autonomous organization established according to law, and members of the owners' committee may not announce the dissolution of the owners' committee. If this abnormal situation occurs, the real estate management department should stop it. The cancellation and merger of the owners' committee caused by the change of the property management area shall be approved by the district or county housing authority that originally approved the registration.

The owners' committee may have 1 director and 1-2 deputy directors. In some places, the owners' committee employs an executive secretary to take charge of daily affairs.

2. Authority

The owners' committee is the permanent body of the owners' congress or the owners' congress, and the executive body for the owners to exercise their self-management rights. The owners' committee shall safeguard the legitimate rights and interests of all owners and implement the decisions of the owners' congress or the owners' congress.

"Measures for the Administration of New Urban Residential Districts" points out that the rights of the CMC are:

(1) Formulate the articles of association of the management committee to represent the owners and users of residential properties and safeguard the legitimate rights of the owners and users of real estate properties;

(2) Deciding to hire or renew the appointment of a property management company;

(3) Review the annual management plan and major measures for community management services formulated by the property management company;

(4) Check and supervise the implementation of various management work and the implementation of rules and regulations.

The "Measures" pointed out that the duties of the Central Military Commission are:

(1) Inspect and supervise the management of property management companies according to the opinions and requirements of real estate owners and users;

(2) Assist the property management company to carry out various management work;

(three) accept the supervision of real estate owners and users of residential quarters;

(four) accept the supervision and guidance of the real estate administrative department, the relevant administrative departments and the people's government where the residential area is located.

The functions and powers of the owners' committee shall be stipulated by local regulations and administrative rules. The main functions and powers are as follows:

(1) Report the property management work to the owners' assembly or owners' congress, convene and preside over the owners' assembly or owners' congress, and submit for consideration major management issues and measures;

(2) Selecting or dismissing a property management enterprise, concluding, modifying or terminating a property management service contract with the property management enterprise, urging the property management enterprise to perform the contract and provide management services;

(three) the management and use of property maintenance fund;

(4) Inspect and urge owners and users to use the property reasonably and safely, and assist property management enterprises to dissuade and supervise individual owners and employers for illegal decoration and unreasonable use of the property;

(5) Other matters. Such as proposing to amend the owners' convention, the articles of association of the owners' committee, organizing general elections, and establishing the working system of the owners' committee.

The owners' committee generally holds a regular meeting every quarter, and the meeting is only valid if more than half of the members attend, and the decision should be passed by more than half of all the members. The owners' committee may temporarily convene a meeting. When necessary, representatives of relevant government departments, property management enterprises and residents' committees may be invited to attend the meeting as nonvoting delegates. Every meeting of the owners' committee shall be recorded and filed.

(four) the articles of association and daily work of the owners' committee.

1.

After the establishment of the preparatory group of the owners' committee, the articles of association of the owners' committee must be drawn up. The articles of association of the owners' committee is an elastic normative document of the owners' committee. The Articles of Association can only be implemented after being reviewed and approved by the owners' congress or the owners' congress.

The preparatory group of the owners' committee may formulate the articles of association according to the model text of the articles of association of the owners' committee formulated by the real estate administrative department, and solicit the opinions of the owners' group in combination with the actual situation in this area, and its contents shall not violate the relevant laws, regulations, administrative rules and normative documents.

The contents of the articles of association of the owners' committee generally include:

(1) Name, address, scope, nature, competent department and purpose of the Association;

(2) Organizational structure and responsibilities;

(3) Meeting system and working system;

(4) membership conditions, elections, rights and obligations;

(five) the source of funds and fund account management;

(6) office space;

(7) Articles of Association, entry into force, amendment, supplement and other related matters.

2. Daily homework

The daily work of the owners' committee shall be decided according to the articles of association of the owners' committee. Generally speaking, there are the following items:

(1) Understand the basic situation of the property management area, owners and users, including the property area, building structure, property rights, infrastructure, greening and public facilities, surrounding environment, transportation, etc. Owners and users are registered by households. After extensively soliciting the opinions of the owners, put forward a preliminary discussion plan on the objectives and requirements of property management in this region;

(2) If the existing property management company in the jurisdiction manages, evaluate the original property management work, including the achievements, whether the management measures are appropriate, the existing problems, the rationality of the charging items and standards, put forward opinions on whether to renew or dismiss the original property management company, and report to the owners' congress or the owners' congress;

(3) When signing a property management service contract with a property management enterprise, you can refer to the model text formulated by the real estate administrative department, draw up the terms of the draft contract item by item, and clarify the rights and obligations of both parties. Before reporting the standards and charging standards of property management in the jurisdiction to the local district and county real estate administrative departments for the record, it is best to solicit opinions in advance, then sign a contract and go through the filing procedures;

(4) Manage the property maintenance fund, master the right to use the property maintenance fund, follow the principle of earmarking, and require the property management company to establish accounts by building and by households. At the end of the year, you can entrust a qualified audit unit to audit the accounts of the property management and maintenance fund and report the audit results to the owners' meeting;

(five) to put forward the annual housing renovation plan, equipment maintenance plan and public facilities maintenance plan in this region, and put forward the financial budget and submit it to the owners' congress or the owners' congress for deliberation. When necessary, do a good job in raising funds for property maintenance;

(VI) Urge owners and users to abide by the code of conduct such as the owners' convention, the residential area management convention and the housing use convention, coordinate the neighboring relationship of owners in the use of the property, assist the property management company to manage the illegal decoration behavior, and report to the relevant administrative departments for handling according to law if they refuse to listen to dissuasion in violation of regulations;

(seven) to do a good job in the management of road sites, vehicle driving and parking, and advertising settings within the jurisdiction;

(8) Do a good job in internal management: draft relevant property management conventions and measures; Do a good job in the supplementary election of members; Establish working system, meeting system and document system; Do a good job in raising and using office funds; Do a good job in the setting and management of office buildings; Do a good job in the general election

(five) the relationship between the owners' committee and the property management enterprise.

Equal parties to an economic contract

The owners' committee and the property management enterprise are entrusted and entrusted. Before and after signing the property management service contract, the status of both parties is equal. Before signing the contract, both parties can choose in both directions; When signing the contract, both parties should negotiate the management objectives, requirements and expenses, and the contract can only be signed after reaching an agreement through consultation. During this period, the two sides have no affiliation. Legally, the owners' committee has the freedom to entrust or not to entrust the property management enterprise, and the property management enterprise also has the freedom to accept or not to accept the entrustment.

2. Interest in the same goal

Once the management service goal is determined, both parties are pursuers of the property management goal after signing the contract. This goal is to keep the property in good condition, ensure convenient and safe use of the property, maintain a beautiful and clean environment, and ensure good public order. Under this goal, property management enterprises should provide management services for property users with high-quality services, which are basically for the benefit of owners and users. The employment relationship between the two parties and the employment relationship are integrated into the same goal; The actions of all parties can not affect and damage the realization of this goal, otherwise they will bear the responsibility.

3. Both sides of labor and economic exchange

This relationship is produced under the relationship of economic cooperation, which embodies the principle of paid equivalent exchange. One party requires the other party to provide high-quality and low-cost services, and the other party requires the other party to pay the fees. This is a relationship of unity of opposites. When there is a contradiction, it should be standardized according to law. It can be settled through consultation, and the contract can be modified and supplemented. When the contradiction cannot be resolved through consultation, both parties can appeal according to law until they file a lawsuit.

4. Parties with different terms of reference

Owners should use and maintain the self-use parts and equipment of the property safely, abide by the owners' convention and the house use convention, and maintain the safety and cleanliness of the shared parts, shared equipment and facilities. The owners' committee shall supervise, inspect and assist the professional management of property management enterprises. Property management companies are specific operating units and operating institutions that carry out daily management. Within the scope of the contract, the owners' committee should cooperate and help, establish a coordination meeting system when necessary, and hold joint meetings regularly to solve some problems encountered in management. The property management enterprise and the owners' committee shall promptly report the property management work to the owners' congress or the owners' congress.