Free graduation thesis on property management

Some Legal Issues of Property Management Disputes

Property management is a new industry that provides public and special services for units and residents who live and use residential quarters and commercial houses in the process of cultivating and developing China's real estate market in recent years. With the emergence of the property management industry, a new type of civil legal relationship has emerged between the property owner (also known as the owner), the user and the entrusted manager of the property (the property management company). Administrative departments are also facing new problems of how to manage the property management industry. Disputes caused by property management also followed, the number of disputes increased, and many new types of cases appeared. With regard to the normative documents on property management, apart from the Measures for the Administration of Newly-built Urban Residential Areas issued by the Ministry of Construction (hereinafter referred to as the Measures) and the Interim Measures for the Charge of Property Management Services issued by the State Planning Commission and the Ministry of Construction, there is no unified or special law and regulation to adjust the property management behavior in China, which makes it difficult to apply the law to property management disputes. This paper tries to express my humble opinion on the main characteristics of property management disputes, the problems that should be paid attention to in the entity and procedure of hearing property management disputes, and the problems worthy of discussion. ?

First, the main characteristics of property management disputes. ?

Property management disputes arise with the emergence of real estate developers to strengthen after-sales service and property management industry. Because of its uniqueness, this kind of dispute has different characteristics from general disputes. ?

1. Property management disputes are increasing year by year, and the amount of litigation subject matter is relatively large. ?

Since 1990, especially after 1992, the real estate industry has sprung up all over the country, and the real estate industry in Hainan has developed abnormally, forming new residential quarters of different grades and types and buildings as commercial office buildings (hereinafter referred to as residential quarters and commercial buildings). The practices of charging property management fees and providing management services in various residential quarters and commercial buildings are not consistent. The lack of contracts, conventions or legal norms binding all parties between owners and property managers has gradually led to contradictions between owners and property managers and administrative departments. As a result, complaints about real estate and price management departments have greatly increased. If the dispute cannot be completely resolved after the coordination of the relevant departments, the parties shall resort to the court. Take Xinhua District Court of Haikou City as an example. From 1995, the court accepted 5 cases of property management disputes, and by 1996, it rose to 20 cases. In the past two years, various disputes caused by property management have increased. The amount of the subject matter of litigation ranges from tens of thousands to hundreds of thousands. ?

2. There are many types of disputes arising from property management, and most of them are new cases. ?

Property management disputes are disputes that occur in the process of property management. According to statistics, at present, the property management disputes accepted by Haikou City have developed from the dispute of property management companies claiming property management fees at the beginning to all kinds of disputes involving civil litigation and administrative litigation. There are mainly: (1) disputes that property managers (including real estate developers and property management companies) claim property management fees and utilities from owners or users, and such disputes exist in large numbers; (2) The owner or user requires the property manager to bear the tort compensation dispute of water cut, power cut, gas cut or other acts; (3) Property management contract disputes between real estate developers and property management companies; (four) the property management disputes between real estate developers and property management companies; (five) the owner or user requests the property manager to compensate for the economic losses caused by providing special services such as custody services; (six) disputes arising from the hiring and dismissal of the property management company by the owners or the management committee; (7) The owner sued the real estate management department for administrative infringement disputes. These disputes involve contractual debts in civil legal relations (including service management relations, agency relations and contractual relations), debts arising from tort, and whether the administrative actions of real estate management departments in administrative litigation are legal or not. For example, some owners of Shunfa New Village Community in Haikou filed an administrative tort lawsuit because they thought that Haikou Real Estate Administration had violated the law by approving the establishment of the management committee without convening the owners' meeting and with less than half of the owners' votes, which infringed on the plaintiff's interests as an owner. This is the first administrative lawsuit caused by property management accepted by the city. ?

3. The litigants of property management disputes are complex, the legal relationship is complex, and the trial of disputes is difficult. ?

The relationship between the parties to the property management dispute and the law is complicated. The subjects of such cases include China citizens, legal persons and other organizations, as well as foreign citizens, foreign enterprises and compatriots from Hong Kong, Macao and Taiwan. Not only owners, users or community management committees, but also property management companies, real estate developers or administrative departments are involved in the litigation. It may involve the relationship between owners and users, the relationship between owners or users and property management service contracts of property management companies, the infringement relationship, the relationship between real estate developers and property management companies, the relationship between management committees and property management companies, and the relationship between owners, management committees or property management companies and property management departments. As the property management dispute is a new type of case, there is no ready-made basis in trial practice. There are no special provisions on property management in General Principles of Civil Law of People's Republic of China (PRC) and General Principles of Civil Law of People's Republic of China (PRC), so it can only be handled according to General Principles of Civil Law and Administrative Procedure Law, and according to relevant departments and local regulations. The provisions of relevant provisions are not detailed and clear, which brings certain difficulties to correctly handle such disputes. ?

Two, several problems that should be paid attention to in the trial of property management disputes.

(a) the jurisdiction of property management disputes.

Determining the jurisdiction of property management disputes is the premise of correctly hearing such cases. The jurisdiction of property management disputes should be determined according to the specific types of property management disputes. Administrative litigation cases caused by property management shall be determined in accordance with the relevant provisions of the Administrative Procedure Law. In civil litigation cases caused by property management, at present, the parties generally sue in the court where the property is located, and regard the property location as the domicile of the owner or user, while some courts do not distinguish different types of property management disputes to be accepted. Article 29 of the Civil Procedure Law shall apply if one party who signs a property management service contract brings an infringement lawsuit against the other party, and it shall be under the jurisdiction of the people's court of the place where the infringement occurred or the defendant's domicile. Contract disputes arising from property management service contracts, property management contracts and entrusted management contracts. The provisions of Article 24 of the Civil Procedure Law shall apply, that is, "a lawsuit brought due to a contract dispute shall be under the jurisdiction of the people's court of the defendant's domicile or the place where the contract is performed". Attention should be paid to reviewing the defendant's domicile and the place of contract performance. If the owner is the defendant, the owner's residence is both at the location of the property and outside the location of the property. It is not the owner who buys the property, but the location of the property is the location of his household registration. Therefore, it cannot be simply considered that the location of the property is the defendant's domicile; The domicile of a property management company refers to the location of its main business premises or main office premises, not the location where property management is implemented. However, since the property management service contract, property management contract and property entrusted management contract all implement property management at the location of the property, the location of the property should be recognized as the place where the contract is performed. Although the property management dispute is caused by the management of real estate, it is not a real estate dispute and the provisions of exclusive jurisdiction are not applicable. ?

(two) should pay attention to review the legal effect of the property management contract.

Reviewing the effectiveness of the property management contract is related to correctly handling disputes and maintaining the seriousness of the law. In property management disputes, there are mainly three types of contracts. One is the property management service contract, that is, a written agreement signed by the owner or management committee and the property management company or developer that the real estate developer or property management company will provide paid management services to the building and its attachments. The commonly mentioned property management contract mainly refers to the property management service contract; Two, the property management contract is a written agreement signed by the real estate developer or property management company and another property management company to contract the property management right to another property management company; The third is the entrusted property management contract, that is, the written agreement signed by the real estate developer and the property management company to entrust the property management right to the property management company for management. In the trial, we should distinguish the different nature of the contract and pay attention to the effectiveness of the contract in order to correctly handle the property management disputes. ?

1. Pay attention to review the validity of the property management service contract. ?

When reviewing the property management service contract (or employment management contract), its effectiveness is mainly reviewed from the aspects of whether the parties have the qualification of civil subject and the corresponding capacity for civil rights and civil conduct, and whether the contents of the contract are legal. Property management right is a right derived from the owner's enjoyment of property rights. It should be the owner of the property or the user who has agreed with the owner to enjoy the property management right, not the real estate developer or the property management company. The property management service contract shall be signed by the owner (or specific user) as the client and entrusted by a management company with property management qualification and ability. As property management has just started in the process of real estate development in China, property management is mostly part of the after-sales service of commercial housing when buyers buy a house. The real estate developer and the buyer signed an agreement that the buyer will accept the property management service of the real estate developer. With the increasing voice of standardization and legalization of property management, more and more owners or owners' management committees, as the party exercising property management rights, continue to hire or choose property management institutions or property management companies under the real estate developers to provide paid services for property management. Therefore, the qualified parties to the property management service contract are the owners or the industry management committee established according to law, and the enterprises with property management business scope. Since the implementation of the "Measures" of the Ministry of Construction, the property management service contracts originally signed by owners or real estate developers without property management rights shall be regarded as valid. Property management service contracts signed before this date (that is, before 1 April 19941day) should not be considered invalid, because real estate developers have no property management rights. Before the owners hire a property management company, real estate developers can continue to implement property management, but they cannot continue to perform the contract. 1, 94, 1, the property management service contract signed after April, 1994, because the Measures have stipulated that residential quarters should be managed by property management companies, real estate developers should hire property management companies to undertake the management of residential quarters before selling their houses, or register and set up property management companies to be responsible for the management. Therefore, if a real estate developer still signs a property management service contract with the owner after 1 April 19941day, the contract shall be deemed invalid. ?

When reviewing the effectiveness of the property management service contract, we should also pay attention to whether the contract content is legal. Property management service contracts must abide by laws, regulations and rules, and shall not harm national interests, public interests and the legitimate rights and interests of others; On the basis of equal consultation, ensure that the owners or owners' management committees exercise the right of property management and entrustment. If the owners can't exercise the property management right equally, this contract is invalid; For property management fees that are easily controversial, the charging standard and scope should be based on the charging standard of the price management department or reported to the price management department for approval, and the clauses that charge fees and late fees beyond the standard and expand the charging scope without approval should be confirmed as invalid clauses; If the owner is not allowed to manage, use and profit from the use and income of the external walls and roofs owned by him or the owner, or give the real estate developer the right to use without paying the corresponding consideration to the owner, it will infringe on the rights and interests of the owner. In practice, real estate developers or big owners often use the external walls and roofs owned by other owners or * * * to gain profits without the consent of the owners. If there are unequal clauses in the property management service contract that infringe upon the rights and interests of the owners, some of them shall be confirmed to be invalid.

2. Pay attention to review the validity of the property management contract. ?

Because real estate developers or property management companies often think that the property management right is in their own hands, when they have no ability or energy to implement property management, or for profit, after signing a property management service contract with the owner, they contract out the management right entrusted to other property management companies to collect the contract money, which leads to disputes between the owner and the contractor on the collection and payment of the property management contract money, and the owner refuses to pay the property management fee to the contractor. The "Measures" of the Ministry of Construction stipulates that the ownership of residential property management belongs to all owners, and only the owners or management committees representing the owners have the right to hire property management companies to provide paid services to the owners. Real estate developers or property management companies only manage the property according to the property management service contract, and the entrusted right they enjoy is not the property management right in essence, but the entrusted management right, which is contracted out and transferred to others for operation. This kind of property management contract harms the interests of all owners and should be confirmed invalid. Property management companies with entrusted management rights contract out their management rights, but have no right to collect property management contract funds. However, the contractor has not obtained the entrusted management right according to law, and his claim that the owner should pay the property management fee to him should not be supported. ?

3. Pay attention to review the effectiveness of the entrusted property management contract. ?

When inspecting a property management contract, we should pay attention to the parties to the contract and the contents of the contract. On behalf of the owner, the owner or management committee entrusts and hires a property management company to provide management services, and the property entrusted management contract signed accordingly is essentially the aforementioned property management service contract. If there are no other circumstances that cause the contract to be invalid, it shall be confirmed that the signed property entrusted management contract is valid. However, in practice, most of the property management contracts that cause disputes are not signed by the owners or the management committee and the property management company, but by the company that is implementing property management and another property management company, and the company that is managing the property entrusts another property management company to manage the owner's property. This kind of property management contract is similar in nature to the property management contract, but the difference is that the entrusted management right obtained is transferred to others without the owner's consent, and the owner's property is managed by others. The owner entrusts the property management to the selected property management company based on the owner's trust in the property management ability of the selected property management company. The property management company has neither the right to subcontract or transfer the entrusted management right nor the right to entrust others to manage the owner's property. Moreover, according to the theory of civil law, the premise of the establishment of sub-entrustment must be that, with the consent of the client (that is, the owner), the property management company entrusted to manage the property delegates the management right to others without authorization, and the signed property management contract infringes on the interests of the owner and implements the sub-entrustment, so it should be confirmed that the contract is invalid. When examining the entrusted property management contract, it should be distinguished from the contract in which the property management company chooses a franchise company to undertake special business. The latter is allowed according to the "Measures" and the needs of property management. ?

Three, several problems worth discussing in the trial of property management disputes.

With the development of real estate industry and the diversification of building ownership and use, the ways of property management are also diversified. However, due to the lack of legal norms of property management and the imperfection of administrative regulations in China, it is difficult to apply the law and there are many controversial issues when trying these different types of property management disputes. The author tries to discuss the controversial or urgent problems in practice. ?

(1) Procedures for convening, electing and making resolutions of the owners' meeting.

Because there are many owners in residential quarters or commercial buildings, it is difficult to exercise property management rights alone, so the owners' assembly system and the owners' management Committee system elected by the owners' assembly have emerged. The "Measures" of the Ministry of Construction stipulates that residential district management committees should be established in residential quarters, but the "Measures" do not stipulate the system of owners' meetings, including how to convene owners' meetings, how to exercise their rights in elections, and how to make resolutions. Although some local laws and regulations such as "Regulations on Property Management of Urban Residential Areas in Hainan Special Economic Zone" stipulate the system of owners' assembly and management committee, they are not perfect, and the problems in practice still need to be clarified. For example, how does the real estate administrative department manage the property? Under what circumstances should the first owners' meeting be held? How to elect the management committee? Is it feasible to collect the owners' votes by written voting without convening the owners' meeting? How to determine the voting rights of owners? Is it a real estate license, a household or a certain building area? These problems are very specific, but in practice they involve the vital interests of the parties and need to be clearly defined for easy operation. In my opinion, if the owners want to exercise the right of property management to realize autonomy, they should convene a general meeting of owners as soon as possible to decide on major issues in property management. The convening of the first owners' meeting can be convened by the real estate administrative department or by the owners themselves, but it can only be held when the owners holding more than half of the voting rights are present. If the owners' meeting is not held and the owners or their entrusted agents are not present, the management committee or relevant resolutions are established by soliciting the opinions of the owners in writing or adopting resolutions. For other major matters that should be decided by the owners' meeting, the effectiveness of the management committee or relevant resolutions cannot be confirmed. It should be clearly defined that the owners' meeting is the highest decision-making body for property management of residential quarters or commercial buildings, and it is the prerequisite for convening the first owners' meeting, thus forming an effective decision-making procedure for the owners' meeting. Residential quarters or commercial buildings shall not be sold after completion and delivery. According to the Measures, real estate developers should hire property management companies to undertake the management of residential quarters before selling houses. So under what circumstances must we hold the first after-sales owners' meeting and elect the management Committee? Obviously, the above measures will only be taken after all the houses have been sold. Before the whole house is sold (this process may be very long), it is difficult for the owners to exercise their property management rights, so it is difficult to protect their rights and interests. However, if the house has not been sold or moved in to a certain proportion, and the real estate agent is the largest owner at that time, it is difficult to reflect the interests of a few owners by convening the owners' meeting. Therefore, when the occupancy rate or sales rate of the house reaches a certain proportion, it is inevitable to protect the interests of the owners and standardize the property management before convening the owners' meeting and setting up the management Committee according to law. In my opinion, if the sale rate of residential quarters or commercial buildings is above 50%, or the occupancy rate or utilization rate is above 50%, developers or property management companies hired by them should be required to declare to the real estate administrative department, and the first owners' meeting should be convened under the organization of the administrative department or by themselves, and the management committee should be elected, which is more beneficial to protect the owners' property management rights and interests. ?

How to determine the voting right of the owners is related to the immediate interests of the owners and the effectiveness of the decisions of the owners' meeting, which is an important part of the owners' actual exercise of property management rights. The voting rights of the owners shall be determined under the principle of equality and fairness. Because the rights and obligations of property management are generally determined by the area of the house and the area it enjoys, such as one vote for each property owner or user, it seems unfair to the owners who buy a large share of real estate or the real estate developers who are big owners with low sales rate. It is reasonable to calculate and determine the voting rights and votes only by a certain building area, in accordance with the principle of consistency of rights and obligations. However, if the owner of a house with a small building area does not have the right to vote, how can his rights and interests be reflected? The author believes that the owners or users who have agreed with the owners to enjoy the right of property management, regardless of the building area of the owners or users, should have the right to vote in the owners' meeting or management Committee, but the number of votes they represent can be different. If one vote per unit or one vote per unit with a certain construction area is allowed, each construction area of the unit shall enjoy one vote, and the owners below the unit area shall enjoy one vote. The voting rights of non-owners shall be subject to their agreement with the owners. If the construction area is 100 square meter, the building construction area shall be counted as one vote per 100 square meter, and every property owner below 100 square meter shall enjoy one vote. This not only embodies the principle of consistency of rights and obligations, but also fully considers the interests of small business owners. If the resolution of the owners' meeting needs to be passed by all owners, it will often only form a situation of discussion without decision, which is not conducive to protecting the interests of all owners. On the basis of reasonably determining the voting rights of the owners, it is stipulated that the resolution of the owners' meeting must be passed by more than half of the owners present at the meeting, and the share of the ownership or use right of the building enjoyed by these owners exceeds half, which can guarantee the interests of the owners to the maximum extent. ?

(2) About the subject qualification of the management committee.

Under the guidance of the real estate administrative department, the management committee is composed of representatives elected by the property owners of residential quarters or commercial buildings and users authorized by the property owners or with whom the management right is agreed, representing and safeguarding the legitimate rights and interests of the property owners and users, and is the executive body of the owners' congress. According to the provisions of the Measures, the CMC has the right to hire and renew property management companies to manage the property and sign employment management contracts with them. In civil activities, the management committee represents the owner in its name. However, under what circumstances was the CMC established according to law, whether it has the qualifications of civil and administrative subjects, and whether it can participate in litigation. These problems are controversial in practice at present. The management committee is an autonomous organization of the owners, and it must be established according to law before it can exercise its rights and undertake its obligations. After the CMC is elected by the owners' congress in accordance with the determined procedures, it shall be jointly signed by the owners or the real estate developers or property management enterprises authorized by the owners' congress and reported to the real estate administrative departments of the people's governments at or above the county level for registration and confirmation. Without registration and confirmation, or without the authorization of the owner, if others register the CMC in the name of the owner, it shall be deemed that the CMC has not been established according to law. Regarding the subject qualification of the legally established management committee, some people think that the management committee is not a legal person, has no independent legal status, has no civil subject qualification, cannot participate in civil and administrative litigation, and cannot bear civil and administrative responsibilities. Forgive me for disagreeing with this view. The "Measures" give the CMC the right to sign employment contracts with foreign countries, which should be regarded as that the CMC has certain capacity for civil rights and conduct in property management. The CMC signed the property management contract on behalf of the owner, and its subject conforms to the rules and regulations, which should not be used to deny the validity of the contract. However, the "Measures" is a law after all. While confirming its qualification as the subject of signing property management contracts, it will inevitably involve the subject status of the CMC litigation that has already occurred in practice. Can the CMC participate in the litigation in its name for disputes arising from property management? The author believes that the CMC is not a legal person, but an autonomous management organization established according to law, which should belong to "other organizations" in Article 49 of the Civil Procedure Law and can be used as a party in civil and administrative litigation. CMC's participation in litigation is not only the act of exercising rights on behalf of the owners, but also the rights and obligations derived from the relevant provisions of the right to sign property management contracts. But after all, because the relevant regulations are not clear and there are different understandings in practice, it is necessary to make it clear in the laws, regulations or judicial interpretation of property management. ?

(3) Property management of commercial and residential buildings or commercial and entertainment buildings.

Different from the use of residential quarters, commercial buildings are mainly used for commercial purposes. After the sale and lease of commercial buildings, in order to maintain the good operation of the houses and corresponding supporting public facilities of the owners or users of commercial buildings, commercial buildings also need professional property management by property management companies. In practice, many commercial buildings are still directly managed by real estate developers or big owners who have absolute advantages in real estate share. Due to the high grade of commercial buildings and the high requirements for providing management services, real estate developers or other property management companies often charge management fees at higher fees, which often leads to disputes. The "Measures" of the Ministry of Construction and the related service charge measures issued by the State Planning Commission and the Ministry of Construction only stipulate the property management and service charge of residential quarters, but not the property management and service charge of commercial buildings. In local laws and regulations, the management of commercial houses is rarely included in the category of property management, which leads to the owners of commercial houses unable to exercise their property management rights, and there is no administrative regulation to follow how to determine the charging standards and service requirements. The resulting disputes are difficult to properly handle, which is not conducive to the establishment and improvement of China's property management market system. Therefore, the property management of commercial housing should be included in the scope of legal adjustment. In the relevant property management laws and regulations, we should define the property management of residential quarters and commercial buildings as the basic framework, and define the service content, scope, service quality, charging standards, methods and ways to exercise property management rights according to the characteristics of residential quarters and commercial buildings respectively. ?

(four) whether the property management company has the right to take measures such as stopping power supply, water supply and gas supply. ?

Property management companies and owners or users often have disputes over property management fees. In order to force owners or users to pay management fees, property management companies often take measures such as power cut, water cut and gas cut when owners or users can't pay according to their requirements, which often leads to lawsuits. Owners and users bring lawsuits or defenses on the grounds that unreasonable fees and power cuts constitute infringement. There are different opinions on whether taking measures such as stopping water supply and power supply is infringement. One view is that the property management company can investigate the management fees in arrears according to the employment management contract, and it is an infringement to take actions such as water and electricity cuts that seriously affect the normal operation and residence of the owners or users. Another point of view is that water and power cuts are caused by the arrears of owners and users, and water and power cuts do not constitute infringement. Because the measures such as water and electricity cuts seriously affect the business and life of owners and users, it is easy to intensify contradictions, so it is very important to properly handle such disputes. The Measures stipulate that property management enterprises have the right to collect management fees in accordance with property management service contracts and relevant regulations, but they have not been given the right to take extraordinary measures. The original "Regulations on Property Management of Urban Residential Quarters in Hainan Special Economic Zone" stipulates that the owners who owe money can take measures such as stopping water and power. The author believes that if the owner or user really owes money, whether it is a breach of contract or infringement to take measures such as cutting off water and electricity should be analyzed in detail. In the property management service contract, it is agreed that measures such as water supply and power failure may or may not be taken for the owners' arrears. If a property management company breaches the contract, it shall bear the liability for breach of contract. In the absence of a contract, the different characteristics of the charging items should be analyzed in detail. Property management fees are mainly divided into fees for providing public services such as sanitation and cleaning, maintenance of public facilities, security and greening for owners and users, fees for collecting and remitting public services such as utilities, gas fees and cable TV fees, and fees for special services. These three kinds of service charges are both related and different. If the owner only delays the payment of public service or special service fees, but does not delay the payment of public agency service fees, the property management company cannot take measures such as stopping water and electricity, otherwise it will be infringement; If the owner or user defaults in paying the service fees of public institutions, resulting in the property management company failing to pay the relevant fees, resulting in water supply, power supply and gas departments being cut off, the property management company will not be liable; If the property management company fails to pay the fees to the relevant departments in time, causing the relevant departments to stop water supply, power supply and gas supply, the property management company fails to fulfill its service obligations and shall bear the liability for breach of contract. If losses are caused to the owners and users, they shall compensate for the losses. Can the property management company take measures to stop water supply, power supply and gas supply to the owners or users who are in arrears with the service fees of public institutions when the relevant departments have not stopped water supply, power supply and gas supply? The author thinks that overdue fees should be recovered according to law, and property management companies take measures such as cutting off water, electricity and gas to force owners and users to pay fees, which infringes on the legitimate rights and interests of owners and should not be supported according to law. Unless otherwise agreed by the parties, the relevant laws and regulations should not give the property management company the right to stop water, electricity and gas. ?

To sum up, as a new type of case, the property management dispute was only brought to court in recent years, and there are still many problems to be discussed. Due to the lack of corresponding legal norms in property management at present, people's courts will inevitably apply different laws and make different judgments when dealing with these new types of cases. It is not only the requirement of judicial practice, but also the requirement of promoting the healthy development of property management to standardize property management behavior in the form of legal norms and protect the legitimate rights and interests of owners, property management companies and real estate developers. Therefore, it is necessary to improve China's property management laws and regulations as soon as possible on the legislative agenda. It is suggested that in the legal norms of property management, the management systems of industry management, owner autonomy and professional services of property management companies should be determined, the management of residential quarters and commercial houses should be included in the scope of legal adjustment, and the relevant rights and obligations, operating procedures and rules in property management should be clarified, so that the property management behavior can be truly brought into the legal track and the people's courts can provide a relatively complete legal basis for hearing property management disputes.

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