What problems should the owners' committee pay attention to when canceling the property service contract?

Several problems that should be paid attention to in dissolving the property service contract

(1) Scope of application of Article 8 of judicial interpretation

There are two kinds of property service contracts, one is the preliminary property service contract signed by the developer and the property company he selected, and the other is the ordinary property service contract signed by the owners' committee and the property company selected by the owners' assembly according to law. Combined with the provisions of Article 26 of the Property Management Regulations, it can be seen that the provisions of Article 8 of the judicial interpretation are only applicable to the dissolution of ordinary property service contracts.

(two) the way to terminate the ordinary property service contract

There are two ways to terminate the contract. One is to terminate the contract by agreement, that is, both parties can terminate the contract through consultation, or both parties can agree on the conditions for one party to terminate the contract. When the conditions for contract termination are met, the creditor may terminate the contract. The second is the termination of the law.

Here, there are two points worth noting. First, this right of action is exercised by the owners' committee, and the owners do not directly enjoy the right of action; Second, the owners' congress does not enjoy this right of action. The owners' congress has the right to appeal, which makes sense in theory but not in practice.

(three) the prosecution of the owners' committee shall be based on the decision of the owners' congress and shall not be decided by itself.

Regarding the termination of the ordinary property service contract, the second paragraph of Article 76 of the Property Law clearly stipulates that it shall be made by the owners' congress according to law. As the executive body of the owners' congress, the owners' committee exercises the right of appeal.

(four) the property management company can also terminate the contract as the original notice.

When the owners' committee has a fundamental breach of contract or an agreed reason for termination, the realty service enterprise can of course terminate the realty service contract. However, can the property company terminate unilaterally? The law does not stipulate.

The author believes that the comprehensive and correct performance of the contract is based on mutual trust and cooperation. If the realty service enterprise requests to terminate the contract, it means that this foundation no longer exists, and the request of the realty service enterprise should be supported.

(5) In such litigation, if the owner defaults on the property fee, the property company shall not file a counterclaim.

The owners' committee filed a lawsuit as the plaintiff, demanding the termination of the property service contract. On the one hand, the property company agrees to terminate the contract, on the other hand, it requires the owner to pay off the arrears of property fees at the same time. At this point, can the property company counterclaim? The answer is no, the property company should sue separately: first, the relevant provisions of the owners' Committee are still relatively lacking, especially the provisions on property funds are blank. As far as the current legislation is concerned, it is more cautious to determine the qualification of the litigation subject of the owners' Committee. As a special litigation subject, the owners' committee does not have the responsibility attribute of bearing civil liability, so it does not have the corresponding capacity of civil liability. Second, the owners' committee is the party to the property service contract, but it is not the obligor to pay the property fee in the contract. Therefore, the counterclaim defendant is not qualified.