Seven defense reasons for owners' refusal to pay property fees

With the emergence of commercial housing, the property service industry has gradually emerged, but there are still many imperfections and irregularities. With the gradual enhancement of citizens' legal awareness and evidence awareness, disputes between property companies and owners due to property service problems have increased year by year. Through the study of hundreds of judgments of disputes over property service contracts in Rongchang District Court in recent years, the author found that the reasons for the owners' refusal to pay property fees have typological characteristics, and the summary and evaluation are as follows:

1. Defend on the grounds of not being a party to the realty service contract.

Some owners think that they have not signed a property management contract with the property service enterprise, so the property service contract signed by the developer or the owners' committee and the property service enterprise is not binding on them, and they do not understand or recognize the contents of the contract, so they refuse to pay the property management fee.

This judicial interpretation has clear provisions. According to Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Property Service Disputes, the preliminary property service contract signed by the construction unit and the property service enterprise according to law, and the property service contract signed by the owners' committee and the property service enterprise selected by the owners' congress according to law are binding on the owners. If the owner raises a defense on the grounds that he is not a party to the contract, the people's court will not support it. Therefore, this defense cannot be supported by the court.

Two, to defend the property service contract has expired.

Some owners argue that the contract period stipulated in the property service contract has already passed, and they have the right to refuse to pay the property fees beyond the contract period on the grounds that there is no contract agreement.

According to Article 36 of the Contract Law, laws, administrative regulations or the agreement of the parties, the contract is concluded in written form. If the parties have not concluded a contract in writing, but one party has fulfilled its main obligations and the other party has accepted it, the contract is established. After the expiration of the agreed contract period, if the realty service enterprise continues to provide services for the community, the owners also accept the realty service provided by the realty service enterprise, and the two parties have formed a de facto realty service contractual relationship, and both parties shall perform their corresponding contractual obligations. Under the above circumstances, the owner's defense reason cannot be supported by the court.

3. Defend on the grounds that all or part of the property fees exceed the limitation of action.

Some owners refused to pay the property fees that exceeded the two-year statute of limitations in the property service enterprise's litigation request on the grounds that the property service enterprise did not charge them property fees.

In practice, property service enterprises, as creditors, mostly make payment requests to owners by posting reminders at their doorsteps. If the realty service enterprise provides photos and other evidence to the court to prove this fact, then the court can consider that the statute of limitations is interrupted and the owner's defense reason cannot be supported by the court. If the property service enterprise has no evidence to prove that it charged the property fee to the owner within the three-year limitation period, then the owner's defense can be supported by the court.

Fourth, to protect the housing quality is not up to standard.

Some owners refused to pay property management fees on the grounds of housing quality problems, such as water leakage, wall falling off and broken glass.

The quality problem of commercial housing is a commercial housing sales contract dispute between the owner and the developer, while the payment of property management fee is a property service contract dispute between the owner and the property service enterprise, which do not belong to the same legal relationship. Under normal circumstances, developers and property management companies are two independent corporate enterprises and should not bear civil liability for each other. Therefore, the owner's defense reason cannot be supported by the court.

Five, the property service enterprises do not perform maintenance obligations as a defense.

Some owners have reported to the property service enterprises, such as residential unit doors and corridor street lamps. Damaged, the house on the top floor leaks, requiring maintenance. However, the property service enterprise refuses to maintain or fails to maintain, and the owner refuses to pay the property management fee on this ground.

Regarding the subject of maintenance obligation, it should be analyzed concretely: if the house is within the warranty period and warranty scope stipulated by the state, the construction unit shall undertake the maintenance obligation; After the warranty period of the house expires, the owner or infringer shall undertake the maintenance obligation of the exclusive part of the house, and the property service enterprise shall undertake the maintenance obligation of some public facilities and equipment in residential areas such as the roof of the house. Property service enterprises can use special maintenance funds for residential areas when performing their obligations. If the owner has evidence to prove that the realty service enterprise fails to perform or fails to fully perform the maintenance obligations stipulated in the realty service contract or determined by laws, regulations and relevant industry norms, the court may reduce or exempt the realty fee as appropriate according to the provisions of Article 111 of the Contract Law.

The intransitive verb defends on the grounds that the property service enterprise fails to fulfill its security obligations, resulting in personal and property losses of the owner.

Some owners think that the property service company has not fulfilled its security obligations, resulting in personal and property losses, such as the theft of property at home and the damage or theft of their vehicles, so they refuse to pay property management fees on this ground.

The security obligation of property service enterprises stems from the relevant provisions of laws and contracts. The statutory security obligation is mainly the obligation of property service enterprises to stop violations of residential safety management and to help prevent residential safety problems as stipulated in local property management regulations. If the owner has sufficient evidence to prove that the property service enterprise has violated the agreed or statutory security obligations, then when the property service enterprise exercises the right to recover the property fee from the owner, the owner can argue that the property service enterprise has not fulfilled its security obligations, which is an incomplete performance of contractual obligations and a breach of contract. However, failure to perform security obligations generally does not constitute a fundamental breach of contract. After trial, the court may, according to the scope of safety responsibility and the specific losses of the owners, reduce or exempt the property fees as appropriate. However, property service enterprises are not omnipotent, and it is impossible to eliminate or stop all the damage in the community at any time. We can't ask property service companies to take on too many obligations for this uncertain danger. As long as the realty service enterprise has fulfilled its duty of care within a reasonable range and taken reasonable preventive measures, the realty service enterprise can avoid the owner from suffering losses from a third party.

Seven, the property services provided by property services companies are flawed.

Most owners who refuse to pay have such a defense. Residential owners often refuse to pay the property management fee on the grounds that the property service enterprises have not fully fulfilled the relevant obligations stipulated in the property service contract and the provided property services are not up to standard, such as unattended parking of vehicles in the residential area, green belts being used by other owners to grow vegetables without stopping, garbage in the residential area not being cleaned up in time, security guards leaving their posts without permission or sleeping while on duty, etc.

First of all, the owners need to distinguish whether the property service problems they reflect belong to the obligations that the property service enterprises should perform as stipulated in the property service contract. Some owners have the wrong thinking that "the property management company is to manage all the affairs in the community", which does not belong to the category of property services, such as housing design and quality problems, unreasonable planning of the community, and the adjacent relationship between owners. , including the requirement of property management service enterprises. When the realty service enterprise refuses to perform its non-contractual obligations, the owner mistakenly thinks that the realty service enterprise has not fully fulfilled its contractual obligations and refuses to pay the property management fee.

Secondly, due to the characteristics of time continuity and immeasurability of property services, as well as the general obligations of the property service enterprises stipulated in the property service contract, the owners cannot prove that there are quality problems in the property services provided by the property service enterprises only by a photo or a video, but need to provide sufficient evidence to form a complete chain of evidence to prove it. If there is evidence that the property service enterprise has provided property services, but there are only general defects in some links and individual areas, it is difficult to be the legal reason for the owner to refuse to pay the property fee because it does not constitute a fundamental breach of contract, but it can be used as the basis for the court to judge the property service enterprise to reduce or exempt the corresponding property fee.

Owners' refusal to pay property fees will not only lead to insufficient operating funds of property service enterprises, but also lead to the decline of property service quality, damage the interests of other owners who pay fees normally, deepen the contradiction between owners and property service enterprises, and seriously affect the harmony between both parties in the community. If you are dissatisfied with the property services provided by the property service company, the owner should not passively refuse to pay the property service fee for a long time to confront the property service company, but should communicate and negotiate with the property service company through normal channels. Can also reflect the existing service problems to the owners' committee, and solve them through communication between the owners' committee and the property service enterprises; Can also be dismissed through the owners' meeting, re-employment of property services companies.