Is the property owner elevator legal?

According to the Regulations on Property Management and the Measures for the Administration of Property Charges, the owner and the property management company (hereinafter referred to as the property management company) can agree on the property service fees by means of "contract system" or "gratuity system". However, property management companies are generally reluctant to adopt the contract system because the procedures based on the gratuity system are too complicated. In the contract charging method, the property service fee includes "the daily operation and maintenance fee of the facilities and equipment used by the property * * * *", and the elevator belongs to the equipment used by the property * * *. The cost based on elevator operation belongs to the cost of property services and the scope of property charges. The expenses that may be generated by elevator operation generally include: 1, elevator maintenance, replacement and reconstruction expenses; 2, elevator advertising costs; 3, elevator daily maintenance costs; 4. Electricity charges generated by elevator operation. According to the Measures for the Administration of Property Charges, "the expenses for overhaul, medium repair, renewal and transformation of facilities and equipment used by the property * * * shall be charged through special maintenance funds and not included in the cost of property services". Therefore, the cost of elevator maintenance, replacement and transformation does not belong to the property service cost, which is beyond the scope of this article. However, in practice, there is generally no distinction between the daily maintenance costs of elevators and the electricity charges generated by elevator operation (Guangdong Province issued a guiding document in 1997, and the electricity charges for elevator operation are calculated and charged separately). Therefore, this paper discusses elevator advertising fee, elevator daily maintenance fee and electricity fee (hereinafter referred to as elevator maintenance fee) respectively. First of all, about elevator advertising costs. Based on the waiting time of elevator passengers in the elevator hall and elevator, elevator advertisement has become an important new advertisement type, including static elevator car advertisement and dynamic elevator front room (especially the elevator hall on the first floor) video advertisement. Undeniably, elevator advertising can not only increase the income of owners, but also alleviate the boredom of passengers waiting and taking the elevator to some extent. According to Article 55 of the Regulations on Property Management: "Where the parts and facilities of the property are used for business, the relevant procedures shall be handled in accordance with the provisions after obtaining the consent of the relevant owners, owners' congress and property management enterprises. The owner's income should be mainly used to supplement special maintenance funds, or it can be used according to the decision of the owners' meeting. " For this reason, the procedure of elevator advertising is that the property management company should obtain the consent of the owners' meeting or the authorized owners' Committee before publishing elevator advertisements. If the owners' meeting is not established, it shall be announced in the community to solicit the consent of the majority of owners, and the advertising revenue shall be deposited in a special account and shall not be misappropriated. For the distribution of elevator advertising revenue, based on the unified management of property management companies, it will take some time to negotiate with advertising companies on the signing and review of elevator advertisements. The author believes that a small part of the elevator advertising revenue, as the management cost (or remuneration) of the property management company, is mostly owned by the owners and can be used for the maintenance of public facilities in the community, which is relatively fair and reasonable. Second, about the elevator maintenance fee. At present, China's elevator maintenance fees are mainly charged in the following ways: 1, paid according to the number of rides, paid according to a single ride, and paid monthly (quarterly). In a typical implementation city, such as Chongqing, some office elevators in Chongqing charge foreigners elevator fees by time. 2, according to the average household cost sharing or according to the resident population cost sharing (Chongqing issued a guiding document in 2004, according to the owner's facts to share the elevator fee; Harbin issued a guiding document in 2009, in which elevator maintenance fees are shared by households and elevator operation electricity fees are shared by floors. 3. Share the cost by area. Most cities, including Chengdu, adopt this method. Chengdu issued a guiding document in 2007, and the elevator fee was included in the property management fee and charged according to the area; Guangzhou issued a guiding document in 2004, and the elevator fee is included in the property management fee and charged according to the area (the elevator operation electricity fee is charged separately and reasonably). 4. Determine the cost according to the area allocation combination coefficient. First, choose a floor with the basic maintenance fee, gradually increase the elevator fee above this floor, and gradually reduce the elevator fee below this floor, so that the sum of the increased elevator fee and the reduced elevator fee is zero. Changzhou issued the guidance document in 2009, and the elevator fee is charged according to the floor coefficient of the combined building area (Guangzhou 1999 issued the guidance document, and the electricity fee for elevator operation is shared according to the floor coefficient, the first floor. Analysis of the advantages and disadvantages of the above charging methods: The advantage of the first method is to avoid the dispute of elevator fee sharing for pay-per-view, but the biggest drawback is to complicate the daily property operation (IC card charging system equipment may be needed). With the accelerated pace of urbanized life, people are more and more fond of and adapted to a simple and efficient lifestyle, and pay-per-view obviously runs counter to people's pursuit. Not only that, it will also bring great inconvenience (time-consuming, need to prepare change) to the host's relatives and friends to visit, accept mail express delivery and facilitate home delivery service. This charging method directly complicates simple things, runs counter to the simple and efficient modern lifestyle, and obviously cannot adapt to the development of society. The benefits of the second method are obvious. The charging method of household charging is very simple, but the disadvantages are also obvious. The charging method cannot be fair and reasonable, especially the proportion of residents in a unit household varies greatly, which is the most unfair for small-sized houses or owners with a small number of residents (but if the charging method is based on the resident population, the charging method is relatively more complicated, and it is easy to lead to differences between the owners and the property management company because of possible changes in the resident population). In addition, according to the common sense of "whoever benefits pays" in daily life, this way is relatively unacceptable to the owners who live in lower floors, especially the bottom floor, and it is easy to be resisted by such owners, which will cause a chain reaction of the bottom floor, especially the bottom floor owners, leading to opposition between owners and owners, owners and property management companies due to the differences in elevator cost sharing methods, and ultimately damaging the interests of all owners. The advantages and disadvantages of the third method are similar to those of the second method, but relatively speaking, the method of elevator charging by area is the same as that of property management fee, and there will be no measurement change. Although it can't solve the fair and reasonable problem of the payment method of the bottom and bottom owners, it is more scientific, reasonable and convenient than the second method. The advantage of the fourth method is that if the calculation formula is scientific, it can basically reflect the balance between efficiency and fairness, and can also fully consider the frequency of elevator use. The only drawback is that the calculation is relatively complicated, which may cause misunderstanding of some owners and increase the workload of property management companies. At the same time, the cardinal number and coefficient of charging will be quite different because of different understandings, which is easy to form a situation of disagreement on the determination of charging method and charging scope and the specific calculation method. Although this charging method is still flawed, it is much better than the first three methods. Therefore, the author himself is in favor of the implementation of the fourth charging method. Third, the reform and discussion of elevator maintenance fee. 1. Guidance documents need to be issued under the leadership of government departments. With the increasing commercialization of modern housing, the owners are more and more aware of their own rights and interests, and there are more and more disputes arising from the use of elevators. The original charging method for property elevators is becoming more and more out of date. In this state, it will be a difficult, long and controversial process whether the property management company or the owners' committee unilaterally stipulates elevator charges or negotiates with the owners. Even if the charging standard is finally set according to the minority obeying the majority, it is questioned or resisted by owners with different opinions because of lack of authority (of course, for cities that calculate elevator maintenance fees by area, property management companies can directly apply to the price bureau for charging standards. However, in order to carry out the coefficient reform, without government guidance documents, a long negotiation process is inevitable. At the same time, in the process of taking over new property development, property management companies have a complicated and repeated negotiation process with owners or owners' committees because of the lack of authoritative guidance. Increased the difficulty of property management, increased the risk of disputes, and increased the time and opportunity costs. In recent years, government departments in many cities have realized the problem of elevator charging in property management, and have successively issued relevant guiding opinions and corresponding implementation methods. For example, Changzhou Housing Management Bureau of Jiangsu Province, which was implemented on June 5438+1 October 20091,stipulated clearly the use, operation, charging range and charging standard of elevators in property management. Similar government departments in Chengdu, Chongqing, Guangzhou, Harbin and other cities have successively issued government guidance opinions on elevator charging in property management, which can be regarded as a beneficial reform and exploration of elevator charging in property management. 2. Need the active participation of the owners' committee. The guidance of the government is only the premise of the reform and promotion of elevator maintenance premium, and the industry Committee should do more things. Although the government has issued relevant regulations on elevator maintenance fees, the government will not and cannot interfere with the specific operation of each community too much. Therefore, the owners' committee, as the highest "authority" of the community owners, should communicate and coordinate with the property management company from the interests of the owners, and finally come up with a mutually acceptable operation plan. If the property management company insists on implementing the obviously unfair charging regulations, the owners' committee has the right to "recall" the property management company. At the same time, the owners' committee, as a self-governing organization of owners, should also take active actions to promote the reform of elevator charges after its establishment. For example, after changing the property management company, negotiate with the newly settled company on the basis of government guidance, and make an agreement on the scope and standard of elevator charges on the basis of safeguarding the interests of the owners. If necessary, we can communicate with the owners and property management companies by convening the owners' meeting to solicit the opinions and suggestions of most owners. 3. The low-rise or bottom-level owners shall pay the elevator fee according to law. Does the owner of the lower floor or the ground floor need to bear the elevator fee? According to Article 271 of the Civil Law of People's Republic of China (PRC), "the owner has the ownership of the exclusive parts of the building such as the business building, and the management right of the * * * parts other than the exclusive parts." Article 273 stipulates: "The owner shall enjoy the rights and undertake the obligations for the part other than the exclusive part of the building; Do not give up rights and fail to fulfill obligations. " The elevator is the property of all property owners in the building, so the operation and maintenance costs should be borne by all property owners in the building. It is further explained that any owner has the right to use the elevator, but for the low-level or bottom-level owners, they just don't exercise this right or exercise it less, so they can't bear the elevator expenses. In other words, even if you can give up your rights, you have to assume your obligations. At the same time, compared with modern elevator apartments, it is a common phenomenon to build a garage with one floor or two floors. There is almost no phenomenon that the owners on the lower floor or the bottom floor do not use elevators at all. Therefore, from the perspective of the civil code, there is no legal basis for the reason that the owners of the lower floors or the bottom floors simply do not pay the elevator fee. How should the low-rise or bottom-floor owners bear the elevator expenses? Although from the perspective of civil code, it should bear the elevator fee according to law, from the perspective of fairness and rationality of the basic principles of civil law, the scope and share of the elevator fee it should bear are still worth discussing and discussing. According to the common sense of "whoever benefits will bear it", these residents seldom use it, so paying less for the elevator is in line with the basic principles of civil law, people's daily thinking habits and value standards. This view has been put into practice in Changzhou, Guangzhou and other cities, and gradually recognized by the owners. Therefore, the low-level or bottom-level owners bear less elevator expenses and the high-level owners bear more elevator expenses, which is completely in line with the principle of fairness and reasonableness in civil law and is more easily popularized and accepted by the majority of owners.