Legal relationship in property service

Legal relationship of property management service 1

Abstract: The legal orientation of the owners' committee and the property management company and how to determine their legal relationship in the property management service are unresolved issues that have long plagued the healthy development of the property management industry. This paper attempts to use the theory of differentiated ownership of buildings to discuss the legal relationship between property management companies and owners' committees from the source of property management rights.

[Keywords:] legal relationship of property management owners' committee

In property management activities, owners, owners' committees and property management companies are the most important civil subjects in the legal relationship of property management.

How to accurately and scientifically determine the legal status of the owners' committee and the property management company, clarify their legal relationship in property management, and lay the foundation of property management legislation is an indispensable foundation for establishing a property management system that combines the autonomy and self-discipline of owners with the professional management services of property management companies, and is also the primary premise and inevitable requirement for cultivating and standardizing the property management market.

I. Legal Status of Owners' Committee and Property Management Company

Then, what is the legal status of the civil subject in the above-mentioned legal relationship of property management? What is the legal relationship between them? Judging from the legal system of differentiated ownership of buildings established in the Draft Property Law of People's Republic of China (PRC) under consideration in the National People's Congress Standing Committee (NPCSC), the essence of property management is to distinguish the management of all buildings, and the legal status of owners is to distinguish the owners of all buildings.

However, this legal system does not directly define the legal status of owners' committees and property management companies, but sets two legal positions: to distinguish all building managers and to distinguish all building management service providers.

Then, for the owners' committee and the property management company, who is the manager to distinguish all buildings? Who is the person who distinguishes all building management services? In this regard, there must be an accurate, reasonable and scientific positioning, because it is directly related to the distribution of rights and obligations of civil subjects in the property management relationship and to the healthy development of the property management industry.

Let's discuss the general principles of civil law in China. Manager? The legislative intention of.

? Manager? This legal concept first appeared in China's General Principles of Civil Law.

Article 126 of the General Principles of the Civil Law stipulates that if a building or other facilities, as well as the shelving and hanging objects on the building collapse or fall off, causing damage to others, its owner or manager shall bear civil liability, unless he can prove that he is not at fault. ? The law defines the subject responsible for the damage caused by buildings as? Owner or manager? The legal status of building owners is relatively clear, that is, they are different building owners who are called owners in property management activities.

As this law established the legal status of the subject of the manager's responsibility, the manager was directly brought into the legal system of the condominium ownership in People's Republic of China (PRC) Property Law (Draft).

So, what is the legislative intention of the administrator? Just by clarifying our civil law? Manager? In order to correctly establish the legal status of owners' committees and property management companies in property management activities, balance the rights and obligations of owners, owners' committees and property management companies according to law, and promote the healthy development of property management.

What is the legislative intention of the subject responsible for building damage in China's civil law? Manager? In fact, it refers to a person who enjoys a fixed and permanent right to operate and manage a specific building or other facilities in accordance with laws, regulations or administrative orders.

In the legislative intent of China's civil law, the manager should refer to the building manager who enjoys the right of possession, use, income and even disposal, and refers to the person who obtains the legal or factual possession of the building and undertakes the maintenance obligation based on the authorization of the owner or other legal reasons.

Judging from the provisions of the law on managers, first of all, it can be confirmed that the property management company has no right to possess, use, benefit or even dispose of it, and has no fixed and permanent management right over specific buildings.

In contrast, the owners' committee has a fixed and permanent right to manage buildings.

Because as long as buildings exist, management rights must be exercised to distinguish all buildings.

The owners' committee is a mass autonomous self-discipline organization elected by all owners to represent their legitimate rights and interests, and its civil liability is borne by all owners.

And all owners have the right to possess, use, benefit and dispose of the building, and the subjects of natural responsibilities and rights are the same.

As a management group, the owners' committee distinguishes the permanent existence of all buildings.

Establishing the status of the owners' committee as the manager, with all owners fully responsible for distinguishing the management of all buildings, can directly reflect the owners' self-management rights and balance the owners' self-discipline obligations and responsibilities.

As far as the property management company is concerned, although it undertakes certain management service responsibilities, this management service responsibility is obtained through the property management service contract signed with the owners' Committee, and it is not innate. This management responsibility is limited and is a part of all management responsibilities.

Because the property management service contract cannot and cannot cover all the management responsibilities caused by buildings, it is often impossible for other civil subjects (such as property management companies) except owners and owners' committees to completely control or completely terminate.

When a property management company violates the property management service contract and fails to perform the management service responsibilities agreed in the contract, it shall bear the responsibility for breach of contract management service.

However, the management responsibility of the owners' committee is innate. The management service of the property management company is undertaken by it according to the contract, but the management responsibility not agreed in the contract is obviously still reserved by the owners' committee. Owners' committee has the right to reserve management responsibility, and naturally has the obligation to undertake management responsibility, and should become a legitimate manager.

According to the principle of fault liability, because the owners' committee did not transfer all management responsibilities to the property management company through the property management service contract, it is impossible for the property management company to assume all management responsibilities.

Otherwise, it is against the principle of fairness and justice to let the property management company take responsibility as the manager, and it is also inconsistent with the legislative intention of the civil law of our country for the manager.

Therefore, the property management company can only be the management service provider that distinguishes all buildings, and it is one of the equal parties to the property management service contract.

Second, the legal relationship between the owners' committee and the property management company in property management activities.

The content of the legal relationship of property management refers to the rights and obligations enjoyed by the subject of the legal relationship of property management.

The relationship between the rights and obligations of the parties is the core and key element of the legal relationship of property management, and it is also the core content of legal norms.

The content of rights and obligations of the legal relationship of property management is the direct expression of the social relations adjusted by the legal system of property management in the property management law.

If there is only the subject of the legal relationship of property management, and there is no relationship of rights and obligations between the subjects, the legal relationship of property management cannot occur.

Therefore, the primary task of property management legislation is to determine the legal status and rights and obligations of each subject in the legal relationship of property management in the form of law.

The legal relationship between the owners' committee and the property management company should be regulated by the legal system of differentiated ownership of buildings, which directly reflects the equal relationship of civil subjects.

In practice, the legal relationship of property management includes the following aspects: first, the rights and obligations of the owner and lessee, that is, the exclusive part of the ownership enjoyed by the owner and user of the building and the rights and obligations of using part of the membership rights; Second, the rights and obligations of the owners' committee as the manager of all buildings; The third is the rights and obligations established by the property management company as a service provider to distinguish all buildings according to the agreement of the property management service contract; Fourth, as a building development and construction unit, the rights and obligations in property management activities; Fifth, governments at all levels, government departments and property management associations, as government departments and industry associations, play the role of administrative supervision, management, coordination and cooperation in property management activities.

Among them, the most important subject in the legal relationship of property management is to distinguish the owners and lessees of all buildings from the property management company, and their relationship is an equal contractual relationship established in the property management service contract.

In the early stage of the development of property management, due to the lag of theoretical research on property management and the lack of clear legal provisions and unclear understanding of the concept of entrustment contract before the promulgation of the new contract law, property management contracts were wrongly defined as entrustment contracts, and the legal relationship between owners, owners' committees and property management companies was defined as? Entrusted? Or? Entrusted agent? In fact, this is a misunderstanding caused by reading the text, which is misleading to the healthy development of property management.

? Entrusted? What is the literal meaning of this word? Entrusted? That is, to entrust something or something to someone, which is different from the entrustment contract system established by China's contract law? Entrusted? Same idea.

Entrustment system is the product of the development of commodity economy. Due to the limited time, energy and ability, individuals can't do everything by themselves, so they have to hand over some affairs to others. The law confirms and adjusts this relationship, resulting in entrustment. The main feature of the entrustment contract is to handle the affairs of the principal.

Combining with the practice of property management and carefully comparing with the Contract Law, we will find that there are essential differences between the entrustment contract and the property management contract: they are obviously different in terms of contract purpose, contract nature, contract termination and charging methods.

Obviously, is the property management contract positioned as? Entrusted contract? , or positioning property management in? Property management Committee? In terms of scope, it is a misinterpretation of the entrustment contract, although there are also a few entrustment behaviors such as entrusting franchise companies to provide special business services in property management activities.

If the property management contract is still in use today? Property management entrustment contract? In the event of a contract dispute, the court will first review the terms of the entrustment contract in the Contract Law.

What about this? Property management entrustment contract? However, it is far from the legal provisions of the entrustment contract in the Contract Law and completely does not meet the legal requirements for the establishment of the entrustment contract, so the judge will make it. Property management entrustment contract? The judgment of invalid entrustment contract will eventually cause great damage to the healthy development of the whole property management industry.

In addition, in property management activities, property management companies usually have no agency.

Although there are cases involving legal acts in property management activities, there is generally no need for property management companies to act as agents, and a large number of activities in property management activities are factual acts and there is no need for agents at all.

Therefore, there is no necessary connection between agency behavior and property management activities, and property management activities can never be explained by agency.

Property management behavior should be distinguished from entrustment and agency, and the wrong view that the legal relationship between property management companies and owners' committees was defined as entrustment in the past should be abandoned, and it should be defined as the legal relationship of property management services.

Property management service contract is not an entrustment contract, let alone an agency contract.

The theory of differentiated ownership of buildings holds that the essence of property management is to distinguish all buildings, and the object of management is to distinguish all buildings.

Distinguishing the management of all buildings, that is, property management, comes from distinguishing the ownership of all buildings, that is, the ownership of buildings, which is usually called the ownership of property buildings in property management activities.

Differentiated ownership of buildings is often the crux of property management disputes, and the corresponding legal relationship of property management is actually based on the ownership of differentiated ownership of buildings.

Therefore, the legal relationship between the property management company, the owners and the owners' committee should be adjusted by the legal system of building ownership.

According to the jurisprudence of contract law and building ownership, property management contract is actually a special professional labor contract, and property management contract should follow the legal provisions of contract law.

According to different legal norms, the legal relationship of property management mainly has the following forms: firstly, according to the legal system of differentiated ownership of buildings, owners, owners' committees and property management companies constitute equal legal relationships among building owners, managers of all buildings and service providers of all buildings; Secondly, according to the contract law and the property management service contract, it constitutes an equal legal relationship between the parties to the contract; Third, according to the law on the protection of consumers' rights and interests, an equal legal relationship between consumers and operators is formed.

In a word, the owners, the owners' committee and the property management company are equal civil subjects in civil law, and form equal legal relationship of property management services in property management activities.

Property management enterprises, as the management service providers and owners' committees that distinguish all buildings, define the rights and obligations of both parties through property management service contracts, thus building a harmonious living environment.

Law on disputes over property management fees II.

Through the analysis of the reasons for the owner's defense in the dispute over property management fees, this paper puts forward the legal remedies for the owner and the property management company respectively.

[Keywords:] legal remedies for disputes over property management fees

I. Causes of disputes over property management fees

It is the basic contractual obligation of both parties that the property company provides services and the owner pays the management fee. However, in practice, the reasons why the owner refuses to pay the property management fee are very complicated, which mainly include: inconvenience in life and even property loss due to problems in the quality of the house; The management and service level of property management enterprises is low, and they only charge for no service or provide inferior service, which contradicts the growing demand of the majority of owners; The property management company charges unreasonable fees, such as charging without the approval of the price management department or setting its own charging standards, and the allocation of public fees is unreasonable; The owner thinks that the developer cannot fulfill the obligation of complete development; Developers or property management companies unilaterally formulate property service contracts, and owners should sign contracts when they move in. Because of their dissatisfaction, they refused to pay all the fees after they checked in.

In addition, there are some owners with poor quality who deliberately default on payment.

Second, the legal relief of property management fee disputes

The defense reasons of the above-mentioned refusal to pay fees held by the owner are different. Therefore, when dealing with such disputes, it is necessary to provide evidence and cross-examination of the owner's defense reasons, and provide relief to the owner and the property management company according to the ascertained facts:

1. Legal relief to the owner

(1) If the service quality provided by the property management company can't meet the contract, the property management company refuses to pay the fees, which belongs to the first breach of contract by the property management company. The owner's refusal to pay the property management service fees belongs to the exercise of the right of defense in the performance of the contract and is a self-relief means adopted according to law.

In this case, according to the service quality provided by the property management company, the lawsuit of the property management company asking the owner to pay the property management service fee can be dismissed, or the service fee payable by the owner can be appropriately reduced, but not limited to the property maintenance fee payable.

(2) In reality, the owner refuses to pay the property management fee because the developer cannot fulfill the obligation of full development. In my opinion, it is a breach of contract in civil law for the developer to sell the property without fully completing the development obligation, and relief should be taken to ensure that the developer continues to perform the development obligation or that the sales contract can be revoked.

In practice, developers can't fulfill the obligation of continuing development (such as the phenomenon that developers abscond with money in reality), and the law should give government relief and identify it as public facilities in urban communities, and the state finance should bear the cost of supporting facilities construction.

(III) For disputes caused by owners' refusal to pay fees due to unreasonable allocation of business expenses, the relevant owners shall be ordered to pay their share of property management fees and maintenance fees on the basis of reasonably determining the expenses to be shared by the owners in accordance with the relevant provisions of the competent government departments.

(4) If the property management company arbitrarily expands the charging range, raises the charging standard, and repeatedly charges, etc., the owner refuses to pay the property management fee according to the standard approved by the price department, and refuses the unreasonable part of the service charges increased by the property management company without the owner's consent, and suggests that the government price supervision and management authority punish the property management company for illegal charging.

2. Legal remedies of property companies

(1) Clarify the legal responsibilities of the owner.

Generally speaking, the legislation of various countries provides severe measures for delaying or refusing to pay service fees. For example, Singapore's legislation stipulates that refusal or delay in delivery of service fees will be subject to additional interest and fines; According to American legislation, the management group has priority to the owner's house; German housing ownership law stipulates that management groups can deprive owners of the right to live in arrears; According to the legislation of Taiwan Province Province, when the management fee is delayed for three months or the cumulative delay days reach four months, the management committee can take measures such as power cut or water cut.

Judging from China's current legislation, there are no effective measures to deal with the problem that owners do not pay service fees without legal reasons. Therefore, it is suggested that the legislation and practical experience of Taiwan Province Province can be used for reference in the future national property management legislation. When the management fee is in arrears for two consecutive months or the cumulative number of days in arrears reaches three months, the CMC may take compulsory measures such as power cut or water cut.

(2) Establish a property management court to simplify the litigation procedures for property companies to claim service fees.

At present, in China, all the management service fee lawsuits against property management enterprises adopt ordinary civil litigation procedures, which takes a long time.

It is suggested that in the future, a small debt property management court with simple procedures and consolidated handling can be established, and a simpler procedure can be adopted.

This will help reduce the cost of litigation and better safeguard the interests of the parties.

(3) At the same time, the restrictions on the right to defense should be fulfilled.

Although the owner can exercise the right of defense at the same time, as for the scope of exercise, the principle of equal rights and obligations should be followed.

Article 66 of the contract law stipulates? One party has the right to refuse the performance requirements of the other party before performance? This shows that the formulation of the right of defense of simultaneous performance is based on the non-performance of the other party. Since the other party has fulfilled it, the other party may not claim to fulfill the right of defense at the same time, otherwise it will violate the principle of fairness.

Article 66 of the Contract Law also stipulates? When the performance of the debt does not conform to the contract, one party has the right to refuse the corresponding performance requirements of the other party? .

But this rule is wrong? Not in conformity with the agreement? Define the scope of.

The author believes that if the property fees are collected by items, the owners can only exercise the right of defense against the expenses that the property management enterprise has not fulfilled at the same time, but not against the refusal to pay all the property fees.

If the property management enterprise has fulfilled the obligation of community maintenance and management, although there are still some minor defects, as long as the defects do not affect the realization of the contract purpose of the parties, the owners have no right to invoke and perform the right of defense at the same time.

In trial practice, judges can judge according to the principle of good faith.

At the same time, the right of defense is an extension of the principle of good faith, which is established to maintain the balance of interests of both parties, and the maintenance of this balance of interests should also be guided by the principle of good faith.

In addition, performing the right of defense at the same time belongs to the right of defense that is blocked, that is, it only temporarily prevents the other party from exercising the right of claim, not the right of defense that is eliminated. When the other party fully performs its contractual obligations and the right of defense disappears at the same time, the parties shall perform their corresponding obligations.

References:

[1] Niu Lina: Legal characteristics of property management contracts and trial of related cases. People's Justice, No.8, 2002.

[2] Huang Jianwen: Discussion on Several Legal Issues in Property Management. Published in Economics and Law, No.4, 2002.

[3] Guo Feng: "Study on Property Management Fees". Published in Journal of Guizhou University (Natural Science Edition), No.4, 2000.

[4], Lu: "Legal Issues in Property Management". Contemporary LawNo. 1 1 in 2002.

[5] Wang Shanshan: A Comparative Study of Property Management Systems in the Mainland and Hongkong. Master's degree thesis of graduate school of Chinese Academy of Social Sciences.