Can I refuse the property management office to advertise on the outer wall of my house? Are there any relevant legal provisions?

Legal discussion on the ownership of the right to use roofs and external walls

Many property buyers have doubts about the ownership of the right to use roofs and external walls. Article 17 of the Commodity House Sales Contract provided by several developers stipulates that the right to use the roof of the building where the commodity house is located belongs to the seller, and the right to use the external wall of the building where the commodity house is located belongs to the seller. Property buyers don't understand why the right to use the house, roof and external wall they bought belongs to others. We will have a legal discussion on this issue.

First, the origin of developers' reservation of the right to use.

According to Article 16 of the Measures for the Administration of Urban Housing Ownership Registration promulgated by the Ministry of Construction, for newly-built houses, the applicant shall apply to the registration authority for initial registration of housing ownership within 3 months after the completion of the house, and submit relevant supporting documents such as land use certificate or land use right certificate, construction land planning permit, construction project planning permit, construction permit, and housing completion acceptance information. Article 34 of the Measures for the Administration of Commercial Housing Sales stipulates that real estate development enterprises shall, within 60 days from the date of delivery of commercial housing, submit the information required for the registration of housing ownership to the real estate administrative department where the house is located. Real estate development enterprises shall assist the buyers of commercial housing to handle the procedures of land use right change and house ownership registration. As can be seen from the above provisions, for commercial housing, because the state-owned land use right certificate, construction land planning permit, construction project planning permit, construction permit and housing completion acceptance information are all obtained by the developer in his own name, after the completion of commercial housing, the developer should first apply to the real estate administrative department for initial registration of housing ownership, and the developer will obtain the housing ownership certificate or confirmation certificate of the whole house (generally called big property right). Then, according to the agreement in the commercial housing sales contract signed by the developer and the buyer, the buyer and the seller go through the registration procedures for the transfer of property rights in the real estate administrative department, and the buyer obtains the property ownership certificate of the purchased house (generally called small property right). In other words, in the process of commercial housing development, construction and sales, developers first obtain the ownership of commercial housing and related supporting buildings and facilities, and then transfer the ownership to the buyers. Therefore, there is a problem that developers reserve certain rights in the process of commercial housing sales.

Second, the roof and exterior wall should be shared by all owners.

According to the "Rules for Calculation of Commercial Housing Sales Area and Allocation of Public Building Area (Trial)" issued by the Ministry of Construction, half of the horizontal projection area of the external wall (including gables) of commercial housing is included in the public building area of the whole commercial housing, which is shared by all owners of the commercial housing. In other words, the ownership of the external wall of the commercial house belongs to all the owners of the commercial house, and of course, the right to use the external wall also belongs to all the owners of the commercial house. In practice, some commercial houses are located in downtown or street, and advertisements can be installed on their external walls, so the right to use the external walls has certain commercial value, while developers hope to keep the right to use the external walls of commercial houses and advertise on the external walls to obtain income.

For the roof (roof or platform), because the principle of area distribution stipulated by the government only stipulates the principle of plane distribution, but not the principle of three-dimensional distribution, it is easy for the owners downstairs to understand that the ground and roof in the house belong to themselves, while the other side of the roof belongs to the owners upstairs, not their own, but for the owners living on the top floor, it is not clear who owns the other side of the roof. In this regard, the top-level owners hope to belong to themselves and have more places to use; Real estate developers also want to own, they can advertise or promote the sale of the top floor (real estate developers often say that they will give rooftops or platforms); Other owners want to be owned by everyone and maintain the overall image of the building. In fact, the roof of commercial housing is an inseparable part of commercial housing, and the ownership of the roof belongs to the owner of each floor covered by the roof of commercial housing. Of course, the right to use the roof also belongs to the owner of each floor covered by the roof. Similarly, because billboards or telecom transmitters can be installed on the roof, the right to use the roof also has certain commercial value. Therefore, developers also want to retain the right to use the roof of commercial housing.

Third, the legal consequences of the right to use ownership

To sum up, the external walls and roofs of commercial housing are components of commercial housing. However, the existing laws, regulations and rules at home and abroad do not clearly stipulate whether developers can retain the right to use the external walls and roofs of commercial houses. Article 17 of the Model Text of Commercial Housing Sales Contract jointly produced by the State Administration for Industry and Commerce and the Ministry of Construction clearly requires the buyer and the seller to make an agreement on the right to use the external wall and roof of commercial housing. So it depends on the specific agreement in the contract. If the buyer and the developer agree that the right to use the roof and external wall belongs to the developer, the developer does not need to obtain the consent of the industry Committee to install the billboard. As long as it does not affect the normal life of all owners and the advertising content will not reduce the overall image of the community, developers can install billboards and collect them. However, if the property buyers and developers agree that the right to use the roof and external walls belongs to all owners, then the setting of billboards here must be approved by the industry Committee, and the main part of the advertising fees collected shall belong to the industry Committee and be kept by the industry Committee in a unified way, while the developers can only charge a small part of the management fees.