On the legal nature and necessity of property management?

With the continuous acceleration of urbanization, the urban population has surged, the land price has soared and there is a shortage of housing. In order to alleviate the contradiction between the housing shortage and the relatively limited urban land resources, improve the land utilization rate and reduce the construction cost, people have to expand the housing construction to the air and underground, so a large number of multi-storey and high-rise buildings have appeared. The distinction between buildings breaks the concepts of property ownership and use right in the form of separate ownership. Due to the large number of people living in the same building and different living habits, it is inevitable that the use of exclusive parts or * * * parts will not involve the interests of others or even the whole, which will often lead to conflicts and disputes. In the past, the lifestyle of "everyone cleans their own snow" was hard to pursue.

In order to establish a harmonious order of property use and avoid the phenomenon of competing for interests and shirking responsibilities, it is objectively necessary to organize all owners and set up certain management institutions to jointly solve the problems of property use and maintenance. Property management system came into being.

Property management is not new abroad, but it started late in China. However, due to the urgent demand of society and market for property management, many property management companies have been established. Many of these enterprises engaged in property management business are not professional property management companies, including:

1. Real estate development enterprises or other enterprises concurrently engaged in property management business, that is, real estate development enterprises with non-independent corporate property management institutions concurrently engaged in property management business.

2. The property management enterprise transformed by the housing management office (office) is a property management enterprise transformed from the original housing management office (office) into an independent legal person according to the requirements of separating government from enterprise.

3. The logistics service department of a property management enterprise, that is, the logistics service department of the original organs, enterprises and institutions has been transformed into a property management enterprise with an independent legal person.

Due to the existence of these non-professional enterprises, the lack of practical experience in China, the lack of an overall norm in legislation, and the influence of some old ideas formed by people under the original planned economy system, there are many phenomena of role dislocation and irregular behavior in property management of property companies at present. However, the management system is not perfect, the management facilities are not complete, the management contract is not equal, and the management personnel are unqualified, which makes the service quality of the property management company generally complained by the owners. In particular, the problem of property management fees is particularly prominent. On the one hand, the owners complain that the property company charges without authorization or exceeds the standard under various excuses, but refuses to pay the fees. On the other hand, property companies often threaten to cut off water and electricity or even restrict owners from entering and leaving the community. The contradiction between the owner and the property management company is very sharp, and sometimes even leads to violent incidents.

In recent years, residents' complaints about property management problems have gradually become a hot spot in the real estate field, and the cases of property management disputes accepted by the courts are also on the rise. With the deepening of housing commercialization and market-oriented reform in China, property management has been paid more and more attention.

There are many reasons for the problems in property management, but I think the most fundamental thing is that people are not clear about the legal nature of property management, and neither government departments nor related property management enterprises can correctly grasp their position in property management activities. Starting with two forms of property management, this paper analyzes the legal attributes of property management from the perspective of civil law.

First, the form of property management

The so-called property management is stipulated in the Property Management Regulations, which was implemented on September 1 2003. It refers to the activity that the owner selects a property management enterprise, and the owner and the property management enterprise carry out maintenance and management of the house, supporting facilities and equipment and related sites in accordance with the property service contract, so as to maintain the environmental sanitation and order in the relevant areas.

According to the different subjects responsible for the implementation of property management affairs, property management can be divided into two forms: independent management and entrusted management.

1, the so-called self-management, refers to the owner to perform property management affairs or form an organization (owner's autonomous organization) to jointly perform property management affairs. All owners in the same property management area shall set up the owners' meeting under the guidance of the real estate administrative department of the district or county people's government where the property is located, represent and safeguard the legitimate rights and interests of all owners in the property management activities in this area, and elect the owners' committee. (But if there is only one owner, or the number of owners is small and all owners agree unanimously, it is decided not to set up the owners' meeting, and the owners * * * will jointly perform the duties of the owners' meeting and the owners' committee. )

2. The so-called entrusted management means that companies and enterprises specializing in property management are responsible for the implementation of property management affairs. Due to the limitation of time, energy and ability, it is impossible for the owner to do property management affairs by himself. In order to improve management efficiency, it is necessary to entrust some management affairs to professional property management companies, so the form of entrusted management has emerged, which has become the main way of modern property management. To analyze the legal nature of property management, it is necessary to investigate the above two forms of property management, especially entrusted management.

The difference between entrusted operation and independent operation lies in the source of management right. The right of self-management comes from the owner's ownership of the property, which is exercised by himself and is the inherent right of the property ownership, and does not need to be enjoyed through any other media. In the case of entrusted management, the property management right owned by the property company is transferred from the owner. Only by concluding a property management contract with the owner (owner's autonomous organization) can a property company obtain the general authorization of the owner (owner's autonomous organization), enjoy the qualification of managing other people's property, and manage things and people in the property area.

Second, the legal nature of self-management occasions in property management

On the occasion of self-management, it is essentially just a concrete way for owners to exercise property ownership. According to the principle that ownership is essentially the right of all people to control everything, management should also be included in control. The owner's management of the property is the inevitable result and manifestation of the owner's ownership of the property, that is, whoever owns the property is the subject with the management right. Therefore, the property management of self-run occasions is essentially a civil act, an act in private law, and the property management right of self-run occasions belongs to the category of private rights, so I won't go into details here.

Third, the legal nature of property management under the situation of entrusted management.

On the occasion of entrusted management, professional management companies are responsible for the management of property, and their management matters also include the management of things and people, which is no different from independent management. Examination forum

The so-called property management refers to the physical management of the preservation, improvement, utilization and even disposal of buildings, bases and affiliated facilities. The so-called human management refers to the community management that distinguishes the owner's residence and the relationship between them in the field of property management. Its object is not limited to distinguishing the behavior of owners living in all buildings in this field, but should include the behavior of people entering and leaving this field.

The contents of management generally include: management of improper damage to buildings, management of improper use of buildings and management of life nuisance. To sum up, mainly from three angles:

1. From the object point of view, it is mainly manifested in the maintenance, maintenance and repair of buildings and their ancillary facilities, equipment and related sites to prevent damage and maintain the normal use function of the property; For example, maintaining the parking order of vehicles in the community, elevator safety inspection and so on.

2. From the perspective of the regional environment where the property is located, it is mainly manifested in cleaning, greening, public security and other behaviors to maintain the cleanliness and beauty of the residential environment and ensure the personal and property safety of residents; For example, clean the tap water tank, clean up the daily garbage, and check the documents of people entering and leaving the community. Article 46 of the Regulations on Property Management stipulates that property management enterprises should stop acts that violate laws and regulations such as public security, environmental protection, property decoration and use within the property management area, and report to the relevant administrative departments in a timely manner.

At the same time, property management companies should assist in the security work within the property management area. When a safety accident occurs, the property management enterprise shall, while taking emergency measures to assist the rescue work, report to the relevant administrative departments in a timely manner.

These two kinds of property management behaviors are basically a kind of maintenance and protection behavior, which does not have the color of "management" and does not conform to the original meaning of "management". Because no one is the object of management, it does not belong to the relationship between people in the sense of subordination and domination, but is more directly reflected in the relationship between people and things.

3. From the use order of things, it is mainly manifested in supervising the owners (or non-owners) to use the exclusive part or the * * * use part of the property, and stopping improper behaviors that endanger the overall interests or hinder others' use, so as to ensure the effective use of the property by all owners. For example, stop the owners from building indiscriminately. Only this kind of property management behavior has the object of management behavior-people, and its purpose is to restrain the use behavior of property owners and stop improper use, so as to ensure the overall use order of the property.

So does the third management behavior have the nature of "management"? Of course not!

Because the purpose of this behavior is to restrain the use behavior of property owners and stop improper use, so as to ensure the overall use order of the property. Therefore, in essence, it should belong to an act of eliminating material obstacles and does not have the content and characteristics of administrative management. In essence, it is only a concrete way for owners to exercise property ownership.

Judging from the purpose and effect of property management activities of property companies, property management in entrusted management occasions is not so much management as service. Property companies create a harmonious and convenient living and working environment for owners through management services, and earn the corresponding service consideration-property management service fee. In this regard, the property management right owned by a property company is actually more of a duty or obligation. When a property company exercises property management rights, it does not exercise contractual rights with the owner as the counterpart, but performs contractual obligations. Property companies should only perform this kind of "management right" in their own hands in good faith, and must not be lazy or give up, otherwise it will be dereliction of duty and constitute a breach of contract.

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