Sunshine City Property Contract Dispute

Building a solar shed should be under the control of the construction department, but you should understand the specific situation yourself and help you receive some relevant information: (The following information is copied from Du Niang? )

The property company sued the owner for building a sun shed and lost the case.

Guo, the owner, was sued by the residential property management company for building a sun shed on the north terrace without authorization and violating the temporary convention of the owners. The court of first instance ruled that Guo demolished the sun shed built on the north terrace. Guo refused to accept the appeal, and the court of second instance held that the property company filed a lawsuit with the court and asked the owner Guo to dismantle the sun shed, which was unfounded in the law. Therefore, the civil judgment of the court of first instance was revoked and the lawsuit of the property company was rejected.

Guo's claim to the property management company is undoubtedly true, and the court of first instance also confirmed it. The focus of the dispute is whether the property company can sue the owners as the subject of litigation without the authorization of the owners' meeting.

At present, there are three main views on this case, and the author lists them one by one and gives the reasons for holding his own views:

Viewpoint 1:

Entrusted by all owners, the property company signed a contract with the owners' committee. As the manager of the residential property, you can sue completely. The main reasons are:

1. From the contractual point of view, the developer and the property management company sign the prophase property management service contract or the owners' committee signs the property management service contract with the property management company, and entrusts the property management company to manage the residential area. In these service contracts, there is a prohibition agreement that the community owners illegally build or close the balcony without authorization. In violation of the agreement, the property management company has the right to report or deal with it. The final right remedy to ensure this right of the property management company is through judicial channels, so it is understandable for the property management company to file a lawsuit.

2. Even if there are no prohibitions such as illegal construction and unauthorized balcony sealing in the above two contracts, it will be stipulated in the management service contract that the owner shall not violate the owners' (temporary) convention, and in the owners' (temporary) convention, there are often provisions prohibiting illegal construction and unauthorized balcony sealing, such as Article 18 of the Temporary Owners' Convention (model text) of the Ministry of Construction: "The following acts are prohibited in this property management area: encroaching on or damaging the property *. Illegal construction and private stalls. " In view of this, the property company can also exercise the right of appeal according to the agreement of the owners' (temporary) convention, and the terms stipulated in the owners' (temporary) convention shall not be violated in the preliminary property management service contract signed by the developer or the property management service contract signed with the owners' committee, so as to ensure the interests of all owners and the smooth management of the property company.

3. As far as the owners' (temporary) convention itself is concerned, property companies are often authorized to take legal action against some owners who violate the rules, especially Article 31 of the model text of the Temporary Owners' Convention of the Ministry of Construction: "If the owners violate the agreement on the use, maintenance and management of the property in this temporary convention, which hinders the normal use of the property or causes losses such as property damage, other owners and property management enterprises may bring legal proceedings to the people's court according to this temporary convention." Article 32: "If the owners violate the agreement on the common interests of owners in this Temporary Convention, resulting in damage to the common interests of all owners, other owners and property management enterprises may bring a lawsuit to the people's court in accordance with this Temporary Convention." Visible, only on the basis of the "temporary owners convention", property companies can also file a lawsuit against such incidents.

4. In the property management service contract or the owners' (temporary) convention, it is not stipulated that the property company has the right to stop and deal with similar acts such as illegal construction or unauthorized closure of the balcony, and it does not affect the exercise of the litigation rights of the property company. Because since the developer or the owner entrusts the property company to serve the owners and manage the property of the community, in order to maintain the good living environment of the community, the property company should have certain legal remedies to discourage and stop individual owners from infringing on the interests of all owners and hindering the normal management of the property company. Otherwise, the so-called property company will safeguard the interests of the majority of owners and effectively manage the community.

Viewpoint 2:

Property companies can only enjoy the right of appeal according to the property management service contract or the owners' (temporary) convention. The main reasons are:

1. The property management right of the property management company in the residential area is based on the authorization of the developer or all the owners, or the management or service is carried out according to the agreed scope of the (pre-) property management service contract. According to the (pre-) property management service contract, the property management company accepts the entrustment of the developer or the owner to manage the residential property. In the (pre-) property management service contract, if there is no agreement on the property management company's right to deal with the owner's illegal construction and occupation of public parts, the property management company has no right to deal with such incidents, let alone the right to sue.

2. As stipulated in the owners' (temporary) convention, the property company has the right to appeal to the owners, which is similar to the above-mentioned temporary owners' convention (model text) of the Ministry of Construction, and the property company can also conduct litigation accordingly.

3. From the legal point of view, the right of the property management company to sue according to the (preliminary) property management service contract or the owners' (temporary) convention does not violate the direct mandatory provisions of the law. According to the principle of "autonomy of rights and obligations" in civil law, there is no legal obstacle for property management companies to obtain the rights of individual owners through contracts or conventions without violating the mandatory or prohibitive provisions of the law.

Viewpoint 3:

Property companies have no right to sue in the name of individuals for similar incidents such as illegal building and unauthorized balcony sealing by owners. The reason for this is the following：

1. has no direct interest relationship with the property management company and does not meet the conditions for filing a case. The negative legal consequence of illegal building and unauthorized balcony sealing by community owners is that they infringe on the rights of other owners. For example, the illegal building on the first floor may affect the safety of the owners on the second floor, and for all owners, it will affect the quality of the property in the whole community, but for the property company, there is no direct interest, and the direct interests of the property company are hardly affected.

According to Article 108 of the Civil Procedure Law, one of the conditions that a prosecution must meet is that the plaintiff is a citizen, legal person and other organization that has a direct interest in the case. It can be seen that citizens, legal persons and other organizations that have no direct interest are not qualified as litigants. Owners' illegal construction and other similar behaviors may have a certain indirect impact on the management of the property management company, which will bring inconvenience to the management, but it does not mean that such behaviors of owners have a direct interest relationship with the property management company.

2. In the (preliminary) property management contract and the owners' (temporary) convention, it is illegal for the developer or the owners to authorize the property management company to conduct litigation. The illegal building, balcony closure, occupation of roads and other similar behaviors of community owners are legally a kind of civil tort such as illegal building, which infringes on the ownership of public parts. If the owner's substantive rights are infringed, he can defend his rights through civil litigation, that is, exercise the right of appeal, but whether this right of appeal can be transferred or not, the answer is completely negative. Because a prerequisite for the transfer of litigation right is the transfer of civil entity rights, and the infringed entity rights of community owners cannot be transformed into the infringement of the entity rights of property companies, which also stems from the infringement and attachment rights of both parties. In the property insurance of insurance law, there are provisions on subrogation. For example, if A's vehicle is stolen, B steals it and B is not caught, the insurance company will pay A according to the insurance contract. In this case, the insurance company will enjoy the right of subrogation, and can recover from B, or demand B to pay directly to the insurance company through litigation. In fact, this provision of subrogation cannot be applied to the breach of contract discussed in this paper, because in the case of the above-mentioned insurance company, A's losses have been paid by the insurance company, A's interests have been protected, and the insurance company enjoys subrogation according to law because of paying in advance. In similar incidents such as illegal buildings, it is difficult to calculate the losses caused by illegal buildings to the owners, and it is impossible for the property company to compensate the damaged owners, so there is no premise of subrogation.

If the similar incidents of illegal construction and unauthorized closure of balconies by individual owners are regarded as violations of the owners' (temporary) convention, can the right of appeal based on individual owners' breach of contract be transferred? The answer is also no, the right of action is a procedural right, which is generally transferred together with substantive rights. Let's first look at whether the contract debt can be transferred due to the owner's default. According to Article 79 of the Contract Law, the creditor (specifically the infringed obligee in this article) can transfer all or part of the creditor's rights to a third party, but at the same time, this article also has strict restrictions on the transfer of creditor's rights, stipulating that the creditor's rights that cannot be transferred according to the nature of the contract shall not be transferred. In similar incidents of unauthorized balcony sealing, the specific identity of the owner, that is, the owner of the community, was infringed. The subject of this contract (owners' convention) is irreplaceable or the contract has personal attachment, so the creditor's rights generated by individual owners' illegal construction and breach of contract cannot be transferred, which is also a general statement about the transfer of contract debts.

Judging from the current situation, the judicial practice of the court is increasingly inclined to the third view. The third view is also supported by the document "Answers to Questions Related to the Trial of Property Management Disputes" (Gao Hu Faminyi [2002] No.6). If the property management company litigates similar cases, the court will generally not accept them. However, the problem is that in the early stage of property management, the owners' Committee was not established in the community. If the property company can't sue, the illegal construction of the community can't be solved through litigation. For property companies without law enforcement power, all they can do is report to the competent department of real estate industry.