Exercise and restriction of the right of defense in the property service contract

In recent years, the contradiction between owners and property management companies caused by property services has become the most important factor affecting the harmony and stability of residential quarters. This is not only related to the property company's failure to provide satisfactory services to the owners in a timely and effective manner, but also related to the owner's arbitrary and too frequent exercise of the right of defense of the property service contract. Some owners often refuse to pay property service fees (hereinafter referred to as "property fees") on the grounds of poor service quality and owners' dissatisfaction, and the phenomenon of default is more common. The Report on the Living Conditions of the National Property Management Industry issued by China Property Management Institute in May 2008 shows that among the 4 600 property companies surveyed, the average payment rate of property fees in commercial housing communities is only about 79.48%, and even only 68.57% in some areas. (china property management institute Secretariat. National Survey Report on Living Conditions of Property Management [R] .2008-05-09 [20101-03], http://http://220.194.44.52/? Action-check the news -itemid-999. According to the survey of 28 commercial housing communities in Beijing in 2004, the charging rate of only 14 community is above 80%, that of eight communities is around 60%, and that of the other six communities is only 30%[ 1]. In 2008, there was a wave of property companies leaving residential areas in Shanghai. At least 10 property management companies have left nearly 50 communities due to serious operating losses [2]. According to the author's investigation in Nanchang Property Management Association, the overall payment rate of commercial housing community in Nanchang remained at 70% ~ 80% in 2009, and some payment rates were even less than 50%. The general default of property fees not only intensifies the contradiction between property companies and owners, but also makes the living environment of property companies face serious difficulties. Many property companies are operating at a loss. (According to the National Report on the Survival of Property Management Industry issued by china property management institute Secretariat in May 2008, among 4,600 property management enterprises, 1 enterprise made profits, accounting for 40.07%, and 1 enterprise lost money, accounting for 40.76%; There are 886 flats, accounting for 19. 17%. On the other hand, for their own economic interests, developers sell their properties as soon as possible, and often unilaterally promise owners to waive the service fee for the previous property or even a few years after moving in, which makes the living environment of property companies worse. (For example, the "Oriental Heidelberg" located in Honggutan District of Nanchang City is a property developed by Jiangxi Hongyuan Kechuang Real Estate Development Co., Ltd. and provided by Shenzhen Lianhua Property Management Co., Ltd. ... Since June 2009, because the developer promised the owner to waive the property fee for five years, he delayed paying the property service compensation fee according to the contract signed with the property company, which caused a property service dispute between the developer and the property company, and the interests of the owner were seriously damaged. ) In order to effectively solve the property service disputes between owners and property management enterprises, the Supreme People's Court issued the Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Property Service Disputes (Fa Shi [2009] No.8) (hereinafter referred to as the Interpretation on the Trial of Property Service Disputes or the Interpretation). Articles 5 and 6 of the Interpretation specifically stipulate the exercise and restriction of the owner's right of defense in the property service contract. However, from a realistic point of view, how to prevent the owners from exercising their right of defense at will and avoid pushing the property company and the owners to the contradictory poles due to the default of property fees is more worthy of people's attention.

First, the right of defense in the performance of the property service contract

In a bilateral contract, if one party fails to perform the contractual obligations or fails to meet the requirements and asks the other party to perform the debts, the other party can fight by exercising the right of defense. China's contract law stipulates three forms of the right of defense in the performance of bilateral contracts: the right of defense in simultaneous performance, the right of defense in first performance and the right of defense in uneasiness. The property service contract is a two-way contract and a paid contract. In the realty service contract, the realty company shall perform the obligation of providing realty service for the owner and creating a good living environment in accordance with the contract, and the owner shall perform the obligation of paying the realty fee to the realty company. In practice, owners usually refuse to pay property fees to exercise their right of defense on the grounds that the quality of property services is poor and does not meet the requirements; Property companies refuse to provide exclusive services for unpaid owners, such as refusing to provide maintenance services and suspending secondary water supply services. When the owners are in arrears, they may reduce or stop the public services in the community. What's more, they may personally threaten or violently attack the owners who are in arrears.

1. Expression form of owner's right of defense

In the property service contract, the owner's right of defense is mainly manifested as: (1) When the property company fails to perform the service that should have been performed first, the owner refuses to pay the property fee. Property fees are generally paid by unit cycle, such as monthly. If the property management company fails to fulfill its debts within the unit time limit that should pay the fees, such as cleaning, pruning flowers and plants, maintaining public facilities and equipment for several days in a row. And require the owner to pay the property management fee, the owner can exercise the right of defense to fulfill the contractual obligations first and refuse to pay the property management fee. (2) The property service contract stipulates that the property company shall perform a specific service item, but when the time agreement is not clear, the owner exercises the right of defense of simultaneous performance on the grounds that the property company fails to perform the service item and refuses to pay the property fee. In the property service contract, although there are clear provisions on the items of property services, it is impossible to specify the time to perform these services one by one. For example, when the property management company provides various maintenance services such as access control system failure or corridor lighting, because the property management service contract does not clearly stipulate when the property management company should provide on-site service, when the property management company asks the owner to pay the property management fee, the owner refuses to pay the property management fee on the grounds that the service provided by the property management company is not timely. (3) When the property services performed by the property management company and the living environment created do not conform to the contract, the owner refuses to pay the property fee. Generally speaking, the property service contract will make detailed provisions on the quality of property service, that is, how the property company should maintain the residential environment, such as cleaning twice a day, trimming flowers and plants twice a week, having people on duty at the gate 24 hours a day, and security guards patrolling once an hour. Some property service contracts even stipulate that "there should be no obvious garbage on the pavement", "weeds should not grow in the green space" and "security personnel should not leave their posts". If the property services performed by the property management company and the living environment created do not meet the requirements stipulated in the contract, the owner may exercise the right of defense to perform first or at the same time and refuse to pay the property fee. (4) When the property management company has difficulties in operation and may stop performing property services, the owner exercises the right of uneasy defense and refuses to pay property fees. When the property management company encounters operational difficulties, such as arrears in the wages of property management personnel and high water and electricity charges, or the property management company is sued by creditors to the court because of its large debts, or even filed for bankruptcy by creditors, the owners exercise the right of uneasy defense according to law.

(The above answers were published on 20 14-07- 15. Please refer to the current actual purchase policy. )

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