What are the matters decided by the owner as stipulated in Article 278 of the Civil Law?

Article 278 of the Civil Code stipulates that the following matters shall be decided by the owner:

(a) to formulate and amend the rules of procedure of the owners' congress;

(2) Formulating and amending management regulations;

(three) to elect the owners' committee or replace the members of the owners' committee;

(four) the selection and dismissal of property services companies or other management personnel;

(five) the use of funds for the maintenance of buildings and their ancillary facilities;

(six) to raise funds for the maintenance of buildings and their ancillary facilities;

(seven) renovation of buildings and their ancillary facilities;

(eight) change the use of * * * or use * * to engage in business activities;

(nine) other major matters related to the management rights of * * * and * * *.

The owners * * * agree that the decision shall be passed by the owners who account for more than two-thirds of the exclusive area and more than two-thirds of the total number.

To decide whether items 6 to 8 in the preceding paragraph are matters, it shall be subject to the consent of the owners and more than three-quarters of the voters who participate in the voting of the exclusive part area.

Other matters specified in the preceding paragraph shall be decided with the consent of more than half of the owners voting, and with the consent of more than half of the owners voting.

Legal link

Article 76 of the Property Law; Articles 7, 37, 49, 53 and 54 of the Property Management Regulations; Articles 7, 8, and 9 of the Interpretation of Disputes over Differentiated Ownership of Buildings.

Legislative background

Compared with the property law, the amendment of this article mainly involves four aspects.

First, the voting threshold for the use of public maintenance funds has been lowered.

In this article, Item 5 of Article 76 of the Property Law 1 "Raising and using maintenance funds for buildings and their ancillary facilities" is divided into two settings, namely Item 5 and Item 6 of Article 1. The voting requirements of "raising maintenance funds" and "using maintenance funds" are stipulated respectively, and the voting requirements of "raising maintenance funds" are only stipulated in the second paragraph of this article. The voting requirements for "the use of maintenance funds" are the same as other matters, that is, the use of maintenance funds for buildings and their ancillary facilities should be approved by more than half of the owners of exclusive parts and more than half of the people with voting rights, which lowers the threshold for the use of maintenance funds. Article 76 of the Property Law adopts the same voting requirements for raising and using maintenance funds for buildings and their ancillary facilities, requiring the consent of "more than two thirds", that is, the owners whose exclusive parts account for more than two thirds of the total area of buildings and more than two thirds of the total number of owners can decide to use maintenance funds. However, from the actual situation, it is difficult to agree to "double over two thirds", and the utilization rate of maintenance funds in many places is less than 3%. In view of the difficulty in the use of maintenance funds for buildings and their ancillary facilities, the Property Right Edition (second draft) of the Civil Code has improved the voting procedures for the use of public maintenance funds, reduced the voting requirements for passing related matters, and changed the proportion of some areas and the number of owners who should participate in the voting as stipulated in Article 73 of the first draft from "more than three quarters" to "more than half".

Second, strengthen the owner's right of condominium.

In practice, some property service enterprises have changed some uses of * * without the owner's consent or used external walls and elevators to post advertisements for profit, thus infringing on the owner's * * *.

correct

. In 2009, the Supreme People's Court issued and implemented the Interpretation on Disputes over Differentiated Ownership of Buildings, in which Article 7 stipulated that "part of * * * shall be changed for business activities, part of * * * shall be punished, and"

property owners'conference

Matters that should be decided by the owner according to law or by the management regulations should be recognized as' other major matters' related to the management rights of * * * and * * as stipulated in Item (7) of the first paragraph of Article 76 of the Property Law, and the general provisions of the Property Law have specifically refined this. When compiling the civil code, we should try our best to give specific norms to the problems involved in the specific detailed provisions. Item 8 of item 1 of this article actually comes from Article 7 of Interpretation of Disputes over Differentiated Ownership of Buildings, which belongs to the legislative transformation of trial practice experience.

Third, the minimum requirements are made for the proportion of proprietary owners and the proportion of owners who participate in voting.

In the second paragraph of this article, it is added that "the owner * * * decides the same matter, and the owners whose exclusive area accounts for more than two-thirds and the number of people accounts for more than two-thirds shall participate in the voting", which improves the rules of procedure for the owner * * * to decide matters and clarifies the minimum requirements for voting participation when the owner exercises the same management right.

Fourth, the voting requirements for * * * and decision-making have been reduced.

Raise funds to maintain buildings and their ancillary facilities, rebuild and rebuild buildings and their ancillary facilities, change some uses of * * * or use some of * * * to engage in business activities, and change it to "more than three quarters of the total"; It was decided that other matters should be changed to "double majority", but both "double majority three quarters" and "double majority" are based on the area of the exclusive part of the owners who participated in the voting and the number of people who participated in the voting. Compared with the second paragraph of Article 76 of the Property Law, the rule based on "total area and total number of people" has been changed. The requirements for voting are "2/3×3/4= 1/2" and "2/3× 1/2= 1/3" respectively. At this time, "double over three quarters" and "double over half" became the sum of the original benchmarks.

In addition, item 2 of item 1 of this article changes item 2 of item 1 of article 76 of the Property Law from "formulating and modifying the management regulations of buildings and their ancillary facilities" to "formulating and modifying the management regulations", which is only for the understanding of property management, including that the management regulations should also regulate the understanding of people's management, that is, the behavior of owners, and expand the scope of formulating and modifying the management regulations. This understanding is also reflected in the terms of the property service contract in the third part of this law. Paragraph 1 of Article 937 of this Law stipulates that property services include not only the maintenance of buildings and their ancillary facilities provided by property service providers for owners, the management and maintenance of environmental sanitation, but also the management and maintenance of relevant order.

Interpretation of clauses and application of law

This article is about the scope of matters decided by the owner and the voting requirements for major matters.

The content of this article relates to the exercise of owners' management rights and the owners' participation in property management. According to article 27 1 of this law, the condominium ownership of buildings includes the owner's "condominium" right, which is the basic right enjoyed by the owner as the owner of the exclusive part and the owner with the right of * * * *, but it is also the obligation of the owner. Some matters decided by the owner belong to the scope of exercising rights and some belong to the scope of fulfilling obligations. These matters involve the interests of the owners and need to be decided unanimously by the owners.

Major issues agreed by the owner in this article include general major issues and special major issues. Paragraph 2 of this article stipulates different voting requirements for general and special major issues respectively.

One is "more than two thirds" voting.

The second paragraph of this article stipulates that the owners * * * shall participate in the voting on the matters decided by them, and the exclusive part accounts for more than two-thirds of the area and the number of owners accounts for more than two-thirds. For the first time, this regulation stipulates the minimum number of people attending the voting, and defines the area and proportion of the exclusive part of the owner to participate in the voting.

This article does not stipulate the area of the exclusive part of the calculation ratio and the reference base and calculation method of the owner's ratio. In this regard, the author believes that the exclusive area and the proportion of owners should be calculated by the total construction area and the total number of owners respectively. The specific calculation method can be calculated with reference to the provisions of Articles 8 and 9 of the Interpretation of Disputes over Differentiated Ownership of Buildings. Article 8 of the Interpretation on Disputes over Differentiated Ownership of Buildings stipulates that the area of exclusive parts shall be calculated according to the area recorded in the real estate register; If the property right registration has not been carried out, it shall be temporarily calculated according to the measured area of surveying and mapping institutions; Not yet measured, temporarily calculated according to the area recorded in the housing sales contract; The total construction area is calculated according to the statistical sum mentioned in the preceding paragraph. Article 9 stipulates that the number of owners shall be calculated according to the number of proprietary parts, and one proprietary part shall be calculated according to one person. However, if the same buyer owns more than one exclusive part of the part that has not been sold by the construction unit and has been sold but not delivered, it shall be counted as one person. The total number of people is calculated according to the statistical sum mentioned in the preceding paragraph.

Second, the "double majority" agrees on general major issues

Paragraph 2 of this article stipulates that the following matters shall be decided with the consent of more than half of the owners who vote and more than half of the owners who vote.

The first is to formulate and revise the rules of procedure of the owners' congress. The owners' congress establishes a normal meeting order through the rules of procedure of the owners' congress, which ensures the unity of the collective will and behavior of the owners in the meeting and has a great influence on the rights of the owners. Therefore, this article stipulates this content as the first item decided by the owner.

The second is to formulate and revise management regulations. Management regulations are the rules and agreements of owner's self-management, self-restraint and self-adjustment, which stipulate the use, maintenance and management of buildings and their ancillary facilities within the building division, and are the * * * agreements of owners on some major affairs of buildings and their ancillary facilities, including both the management of things and the norms and agreements of owners' behaviors.

The third is to elect the owners' committee or replace the members of the owners' committee. As the executive body of the owners' congress, the owners' committee can convene the owners' congress according to the rules of procedure of the owners' congress and the authorization of the owners' congress, and report the implementation of property management. Owners have the right to participate in the owners' meeting to elect the owners' committee or replace the members of the owners' committee, authorize the above organizations to sign property service contracts on behalf of the owners and supervise the implementation of the owners' convention. If the members of the owners' committee fail to perform their duties conscientiously, fail to represent the interests of the owners or harm the interests of the owners, the owners have the right to decide to replace the members of the owners' committee.

The fourth is to select and dismiss property service enterprises or other managers. Property service enterprises or other managers belong to property service providers. Property services involve the use and maintenance of buildings and their ancillary facilities, public order, environmental sanitation, community safety and many other aspects. Property service providers are related to the quality of property services, and the selection of property service providers should be decided by the owners.

The fifth is to use the maintenance funds of buildings and their ancillary facilities. Article 28 1 of this law stipulates that the maintenance funds of buildings and their ancillary facilities shall be owned by the owners. With the consent of the owner, it can be used for local maintenance, renewal and transformation of elevators, roofs, external walls and barrier-free facilities. The second paragraph of Article 53 of the Property Management Regulations stipulates that "the special maintenance funds belong to the owners, which shall be used exclusively for the maintenance, renewal and transformation of the parts and facilities of the property after the expiration of the property warranty period, and shall not be used for other purposes."

Sixth, other general major issues related to the ownership and management rights of * * *. Because the enumerated provisions can't exhaust all kinds of situations, it is pointed out that the matters with similar nature belong to the scope of the owner's decision, and an all-encompassing clause is added to make up for the deficiency of the enumerated legislative model, avoid hanging out all the details and adapt to the ever-changing social changes.

Three, "more than three-quarters of the double" agreed to special major issues.

The second paragraph of this article stipulates that the following matters shall be decided with the consent of the owners with more than three-quarters of the exclusive area and more than three-quarters of the people with voting rights.

One is to raise funds for the maintenance of buildings and their ancillary facilities. The maintenance fund of the building and its ancillary facilities belongs to the owner. Maintenance funds can come from different sources, including maintenance funds raised by the owners and special maintenance funds paid by the owners in accordance with state regulations. The fourth item of Article 7 of the Property Management Regulations stipulates that the owners shall fulfill the obligation of paying special maintenance funds in property management activities in accordance with relevant state regulations. Paragraph 1 of Article 53 stipulates that "the owners of residential properties, non-residential properties in residential quarters or non-residential properties connected with a single residential building structure shall pay special maintenance funds in accordance with relevant state regulations." Paragraph 2 of Article 2 of the Measures for the Administration of Residential Special Maintenance Funds stipulates that the nature of maintenance funds is special funds, which are used for specific purposes, that is, the maintenance, renewal and transformation of residential parts and facilities and equipment after the warranty period expires. Raised separately, stored in a special account, and accounted for separately, except for the purchase price, taxes and fees, and property fees. Paying special maintenance funds is not because of special transactions or legal relationships, but to prepare for emergency maintenance, renewal or transformation, so as to distinguish all buildings. Non-residential special maintenance funds are not deposited in advance in accordance with the relevant provisions of the state, but raised according to the needs of maintenance, renewal and transformation of buildings and their ancillary facilities. This article requires the consent of "more than three quarters" to vote on this matter.

The second is to rebuild and rebuild buildings and their ancillary facilities. In real life, owners, owners' committees,

property management company

Disputes often occur in the reconstruction and reconstruction of buildings and their ancillary facilities. The rebuilt and rebuilt buildings and their ancillary facilities, including elevators, roofs, external walls and barrier-free facilities, shall be partially maintained, updated and rebuilt by the owner. The renovation of buildings and their ancillary facilities involves the owner's exercise of building ownership, the burden of expenses and the owner's major interests, which is different from the general major issues. This matter can only be voted through if "more than three quarters" agree.

The third is to change some uses of * * * or use some uses of * * * to engage in business activities. * * * Some uses are legal and cannot be changed in principle. However, based on the specific purpose and necessity, the owner sometimes needs to change its use. In this regard, Article 37 of the Property Management Regulations stipulates that,

Property management office

Ownership belongs to the owner according to law. Without the consent of the owners' meeting, the property service enterprise shall not change the use of the property management house. Article 49 of the Regulations stipulates that the property management area shall be built according to the plan.

public building

And * * * facilities, shall not be changed. If the owners need to change the use of public buildings and facilities according to law, they shall inform the property service enterprises after handling the relevant formalities according to law; If the realty service enterprise really needs to change the use of public buildings and facilities, it shall be submitted to the owners' meeting for discussion and approval, and the owners shall go through the relevant formalities according to law. The above-mentioned "houses for property management" and "public buildings and facilities built in the property management area according to the plan" belong to the parts owned by the owners as stipulated in Article 274 of this Law. In practice, disputes arising from using some * * * to engage in business activities occur from time to time, and such matters involve the property rights of every owner. Article 54 of the Property Management Regulations stipulates that those who use * * * parts and * * * facilities and equipment of the property for business operation shall go through relevant procedures in accordance with the regulations after obtaining the consent of relevant owners, owners' congress and property service enterprises. Therefore, in this revision of the Civil Code, this matter will be included in a particularly important matter, that is, it must be approved by "more than three quarters of the people" before voting can be carried out.

Fourth, the problems that need attention

This article clearly stipulates the scope of matters that must be decided by the owner, and its significance is mainly to exclude that the management rights of * * * and * * are infringed by the owner's personal wanton behavior. However, after determining the scope of the matters decided by the owners, we have to solve another problem, that is, to avoid damaging the legitimate rights and interests of the owners because of the excessive exercise of their rights. In recent years, with the improvement of housing conditions, because the majority of owners decided to install elevators in residential areas without elevators, cases of lawsuits filed by owners on the first floor have occurred from time to time. The essence of correctly handling such cases is how to coordinate the contradictions and conflicts between the individual rights of the owners and the interests of the owners within the framework of the legal system of differentiated ownership of buildings. Article 280 of this law stipulates that the decisions of the owners' congress or the owners' committee are legally binding on the owners. If the decision made by the owners' congress or the owners' committee infringes on the legitimate rights and interests of the owners, the infringed owners may request the people's court to revoke it. It can be seen that properly coordinating the relationship between the two is not only the difficulty of the legal system of building ownership, but also the key to accurately grasp its institutional purpose.

The author believes that the resolution of the owners' meeting is binding on the owners and is an important institutional guarantee for realizing the interests of the owners. If the interests of these groups are not paid enough attention to and protected, the foundation of a harmonious and orderly social order will be impacted and destroyed. If we weigh it, the key depends on whether * * * and (most) imposing individual rights will impact the bottom line of the free exercise of private rights, whether it will provide due process protection, and whether it will give reasonable compensation to those who have suffered losses.