How do developers complain about refusing to rent a car?

I. Main laws, regulations and judicial interpretations related to parking spaces:

1. At present, China's laws mainly stipulate parking spaces in Article 74 of the Property Law: "In building zoning, parking spaces and garages for parking cars should first meet the needs of owners. In the building division, the ownership of planned parking spaces and garages shall be agreed by the parties through sale, gift or lease. Parking spaces that occupy roads owned by the owner or other venues for parking cars belong to the owner. " .

Secondly, Article 5 of the Judicial Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Disputes over the Ownership of Buildings stipulates: "If the construction unit disposes of parking spaces and garages to the owners by way of sale, gift or lease according to the sharing ratio, it shall be deemed that its behavior conforms to the provisions of Article 74, paragraph 1, of the Property Law that' the needs of the owners shall be met first'. The allocation ratio mentioned in the preceding paragraph refers to the proportion of parking spaces, garages and housing units planned for parking cars within the planned building division. "

Article 6 stipulates: "In addition to the planned parking spaces for parking cars, the parking spaces added by the owners on roads or other sites within the construction area shall be recognized as the parking spaces mentioned in the third paragraph of Article 74 of the Property Law." .

Second, the legality of the agreement on the ownership of parking spaces in the housing sales contract between the developer and the owner:

1. After the promulgation of property rights, many developers attach great importance to the ownership of parking spaces in the housing sales contracts signed with the owners, and developers have the right to sell or rent parking spaces.

2. But the author thinks that as long as there is an agreement above, the ownership of the parking space does not belong to the developer. Whether the agreement is legal and valid needs to consider the following factors:

A. Has the construction cost of parking spaces been included in the housing sales cost?

Now the housing sales price, developers need to file with the price bureau. If the construction cost of parking spaces is included in the cost of housing sales, then parking spaces should belong to all owners. Even if the developer agrees to own it, this agreement is invalid.

As for whether the cost of parking space construction is included in the cost of housing sales, the owner can not only apply to the price bureau for information disclosure to understand and judge, but also complain to the tax authorities involved in the developer. After receiving the owner's complaint, the tax authorities are obliged to inspect the sales cost and taxes payable of the developer and inform the owner of the inspection results.

B, in the case of whether the cost of housing sales includes the cost of parking space construction, some developers often ignore the allocation of land transfer fees for some parking spaces.

Parking spaces cannot be castles in the air, but they must occupy a certain plot (even underground space). Therefore, even if the developer does not include other construction costs such as parking spaces in the cost of housing sales, the parking spaces do not share part of the land transfer fees, and the parking spaces cannot be completely owned by the developer. Because, in the absence of allocation of land leasing for parking spaces, in fact, all owners bear all land leasing including parking spaces, and developers encroach on the rights and interests of owners, and owners also have the right to claim certain rights of parking spaces from developers. This kind of claim can often be handled by the developer transferring a part of the corresponding parking space to all owners or owners' committees.

Of course, at present, there is no clear regulation on how to allocate the land transfer fee for parking spaces (especially underground parking spaces), but it should be carried out in a fair and reasonable principle.

C under the above circumstances, x (house sales price) =Y (house sales cost) +Z taxes payable by developers, and y (house sales cost) should usually be equal to "house construction cost". However, if the developer includes the parking space construction cost into the housing sales cost, the developer increases the amount of the housing sales cost. For example, if the housing sales price is fixed, the developer will evade the corresponding tax payable on the housing sales price.

However, judging from the whole business behavior of developers, they include the cost of parking space construction in the cost of housing sales, and they also have to pay corresponding taxes when selling parking spaces. If the parking space construction cost involved in the parking space sales price is reduced, the corresponding taxes and fees payable when selling parking spaces will increase, and developers still cannot escape these taxes and fees. Some developers may take advantage of the differences in tax subjects and tax rates to avoid taxes appropriately.

4. The developer has complete and legal ownership of the parking space and has the right to dispose of the parking space independently without counting the parking space construction cost into the housing sales cost and reasonably sharing the land transfer fee.

Third, developers have the right to deal with parking spaces independently, that is, choose to sell or rent, only sell and not rent; Moreover, the developer has the right to sell or rent to others other than the owner on the premise of "meeting the needs of the owner first".

1. First of all, it should be noted that the developer has the right to handle the parking space independently on the premise of "meeting the needs of the owner first", which does not mean that if the owner refuses to buy the parking space, the developer must rent the parking space to the owner. The market economy is characterized by "willing to buy and willing to sell", and neither party can force the other party to trade. Therefore, developers have the right to choose to sell or rent or even give away parking spaces with independent ownership.

2. According to the above judicial interpretation, the developer should sell or lease the parking space to the owner first, and the owner has the priority to buy and rent the parking space. That is, the developer must give the owner a reasonable period (such as three months) to exercise the preemptive right when selling the parking space; If the owner fails to exercise the preemptive right within the time limit, the developer has the right to sell the parking space to others other than the owner.

Similarly, if the developer rents the parking space, it must give the owner a reasonable period (such as three months) to exercise the priority of renting; If the owner fails to exercise the priority of lease within this period, the developer has the right to lease the parking space to others other than the owner.

3. It should be pointed out that when buying and using a car, the owner should take into account that the car should be equipped with a parking space and the corresponding expenses, which is also the necessary cost for the owner to use the car, just as the owner needs to increase the cost if he wants to choose a more auspicious number when buying a car. Owners can't force developers to only rent parking spaces to owners. In the case that the developer adopts the sale method according to law, the owner should purchase the parking space from the developer at an appropriate consideration in accordance with the principle of market economy. That is, when consumers go to the mall, they can't ask the merchants to rent the goods they sell, but only buy them-of course, if the merchants agree voluntarily, they don't ask for it.

4. The sales price of parking spaces by developers should be reasonable. If it constitutes huge profits, the owner has the right to ask the price department to investigate and deal with it according to law.

As mentioned above, if the owner fails to exercise the preemptive right within the time limit given by the developer, the developer has the right to sell the parking space to others other than the owner. In this case, the owner can't ask the transferee of the parking space to rent it to the owner by force, which also proves that the developer has the right to sell the parking space, not just rent it.

6. Furthermore, developers are generally project companies now. After the project has been sold for a certain number of years, the developer will cancel and dissolve. But if developers are required to rent, developers must continue to exist and operate. From this perspective, it is also not conducive to the legitimate investment behavior of developers and investors.

7. An important feature of a society ruled by law is that "there is no explicit prohibition against breaking the law", which is not only aimed at individual citizens, but also at business entities such as developers. Developers have the right to choose their own fully owned parking spaces, which can only be sold, not rented.

8. Another important feature of a society ruled by law is that anyone who requests to exercise one of his rights cannot harm the legitimate rights and interests of others. The rights of actors involved in a certain matter should be equally protected and balanced (or compromised), and they should not be too biased towards one side.

Of course, as a relatively strong party, developers must pay attention to the balance and compromise with the owners' interests while gaining considerable benefits from commercial development, so as to make their business environment more harmonious and profit-making behavior smoother. I believe that one of the ways for a century-old shop to survive is not to benefit from everything, but to pay attention to the necessary trade-offs, so as to gain something from the rear.

Fourth, the parking space ownership system:

Wuxi, Jiangsu and other cities have not implemented the garage parking ownership certificate system, while Shanghai and other cities have implemented the garage parking ownership certificate system. 2004

The Regulations on the Registration of Urban Housing Ownership in Suzhou, which came into effect on September 1 2008, has stipulated that "the height of the attic exceeds 2.2 meters (inclusive), and the height of the garage in the same building exceeds 2.2 meters (inclusive).

The construction area shall be calculated and recorded on the house ownership certificate; The attic and garage not exceeding 2.2 meters shall be recorded in the supplementary column of the house ownership certificate. "。

At present, the establishment of parking space ownership system in Wuxi and Jiangsu Province is progressing, and it is believed that it will be implemented in the next few years. By then, after adopting the parking space ownership certificate system, developers can sell garage parking spaces on the premise of meeting the needs of owners first.

Five, the owner's rights should be legal:

1. Owners should protect their rights according to law. In the process of "safeguarding rights", some owners often think that "the law does not blame the public" and so on, and take some excessive actions. However, if the owner has taken some actions such as destroying property, which is suspected of deliberately destroying property or destroying production and operation, it will not be worth the candle. Provisions of the Supreme People's Procuratorate and the Ministry of Public Security on the Standards of Criminal Cases under the Jurisdiction of Public Security Organs (1)

Article 33 stipulates: "[Case of intentional destruction of property (Article 275 of the Criminal Law)]

Intentional destruction of public or private property, suspected of one of the following circumstances, should be filed for prosecution: (1) causing losses of public or private property of more than 5,000 yuan; (2) destroying public or private property for more than three times; (3) Gathering three or more people to openly destroy public or private property; (4) Other serious circumstances. "

Article 34 stipulates: "Whoever destroys machinery and equipment, mutilates farm animals or sabotages production and operation by other means for revenge or other personal purposes shall file a case for prosecution: (1) Causing losses of public or private property of more than 5,000 yuan; (two) the destruction of production and operation for more than three times; (3) Assembling three or more people to openly disrupt production and operation; (4) Other circumstances in which criminal responsibility should be investigated for disrupting production and operation. "

Therefore, if the public security organs fix the evidence of the owner's illegal behavior through the video of Skynet system and the monitoring video of the developer and the property management company, the owner is likely to be punished accordingly, which is not worth the candle to his family and even his career.

2. At present, in some communities, many owners lack democratic consciousness and social responsibility. After moving in, the owners' committee was not established in time, and only one or several owners defended their rights, which was not conducive to the effect of safeguarding rights.

Owners should set up industry committees in time, and industry committees should invite lawyers and other professionals to negotiate with developers on behaviors that may harm owners' rights and interests. If necessary, we can take the way of encircling Wei to save Zhao, and then force the developer to transfer the parking space by grasping the shortcomings in other parts of the developer (such as greening rate, etc.). ).