Who should the advertising revenue of the community belong to?

With the increasing number of all kinds of advertisements in the community, a realistic question is placed in front of us: Who should own the advertising revenue in the community? Is it all owners or property management companies?

Owner's requirements

At the end of the year and the beginning of the year, it is time for some property companies to ask the owners for property management fees. On the doors of each building unit in Li Ke's (pseudonym) residential area, the Notice on Urging Property Companies to Pay Property Fees has been posted, along with the 20 18 service plan of the property company.

"Our community * * *, with 40 buildings, 1 1 floor small high-rise, 18 floor high-rise residential. There are more than 3,000 households in the community and the permanent population should be more than 7,000. " Li Ke told the Securities Times reporter that since the official occupancy in July 2009, the residential property has been managed by the property company designated by the real estate developer.

Starting from 20 16, Li Ke began to default on the property management fee. "It's not that I can't afford to pay the property management fee of about 2,000 yuan per year, let alone pay the property management fee maliciously, mainly because some things are unclear." Li Wei explained. What Li Ke wants to find out is the ownership of advertising revenue in the community.

According to Li Ke, in recent years, advertisements in the community where she lives have been increasing: in the elevators of 40 buildings, many billboards in the community park and three vehicle entrances and exits in the community are covered with various advertisements. "The most irritating thing is that the property company also gave the guaranteed rent at the entrance of the community to a real estate agent." Li Ke said that every year, property companies receive a lot of advertising revenue, but these advertising fees are now owned by property companies. It stands to reason that the bulletin boards and elevators in the community should belong to all owners, and the advertising revenue should also belong to all owners, rather than being pocketed by property management companies.

The real Li Ke once found the owners' committee of the community, but several members of the owners' committee were unaware of it. Li Ke then found a property company and asked the property company to announce the annual advertising revenue and explain the whereabouts of the advertising revenue, but it was rejected by the property company. "The property management company said that this is their normal income and has nothing to do with my owner. It also urged me to pay the property management fee as soon as possible." Li Ke said, "But I won't pay the property management fee until the ownership and destination of the community advertising fee are really clear."

Lawyer's statement

So who should own the advertising revenue in the community? Is it really irrelevant to the owner? In this regard, Liu Guohua, director of Guangdong Benben Law Firm, told the Securities Times reporter that due to the different locations of these advertisements, the ownership of advertising income is also different: if advertisements are set in public places such as road green spaces, public facilities and property services, the income should be owned by all owners; Where advertisements are placed in the exclusive part of a building, the proceeds shall belong to the corresponding owners.

According to reports, according to Article 70 of the Property Law: "The owner enjoys the ownership of proprietary parts such as houses and business premises in the building, and the parts other than proprietary parts have the right to be jointly managed with * * *." According to Article 73 of the Property Law: "The roads within the building division belong to the owners, except those belonging to urban roads. The green space in the building division belongs to the owner, except the urban public green space or the express individual. Other public places, public facilities and property services within the building division belong to the owners. " According to the provisions of Article 76 of the Property Law, major issues involving * * * and * * * management rights shall be decided by the owner * * *. Therefore, the final decision on whether to set up advertisements, how to charge fees, how to dispose of the proceeds and other public places, public facilities and property services should be exercised by the owners of the community.

Article 81 of the Property Law stipulates that owners can manage buildings and their ancillary facilities by themselves, or entrust property service enterprises or other managers to manage them. Article 82 of the Property Law stipulates: "Property service enterprises or other managers shall manage the buildings and their ancillary facilities within the building division according to the entrustment of the owners, and accept the supervision of the owners." Article 54 of the Regulations on Property Management also stipulates: "Where the parts and facilities of the property are used for business, the relevant procedures shall be handled in accordance with the regulations after obtaining the consent of the relevant owners, owners' congress and property service 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. "

It can be seen that advertising in public places and residential areas should be approved or authorized by the relevant owners and owners' congress, and property management companies are not allowed to introduce advertisements without authorization. Liu Guohua said that the advertising revenue of the community should also be owned by all owners, who have the right to supervise and require the property company to disclose relevant accounts. The specific use shall be decided by the owner or the owners' committee or handled according to the property service contract.

Of course, there is another situation. If the parts and facilities of the property are not used, according to the provisions of Article 71 of the Property Law, the owner has the right to possess, use, benefit and dispose of the exclusive part of his building, and the advertising income obtained by the owner from the exclusive part of his building shall be owned by the owner. Of course, the owner's exercise of rights shall not endanger the safety of the building or harm the legitimate rights and interests of other owners.

How should owners protect their rights?

If the property company introduces advertisements without authorization or takes the advertising proceeds as its own, how should the community owners represented by Li Ke protect their rights?

In this regard, Liu Guohua, a lawyer, said that Li Ke and other community owners can ask the owners' committee to sign a contract with the property company, clearly stipulating the placement of community advertisements, income distribution and liability for breach of contract. The owner has the right to replace the realty service enterprise or other managers selected by the construction unit according to law.

In addition, the owners or owners' committee can report to the local real estate administrative department. Because according to Article 63 of the Regulations on Property Management, if a property service enterprise changes the use of its property management premises without the consent of the owners' meeting, the real estate administrative department of the local people's government at or above the county level shall order it to make corrections within a time limit, give it a warning and impose a fine of 654.38 million yuan or more and 654.38 million yuan or less; If there is income, the income will be used for the maintenance and conservation of parts, facilities and equipment used in the property management area, and the rest will be used according to the decision of the owners' meeting.

"You can also bring the property company to the court to request to eliminate the nuisance, restore the original state, confirm that the punishment is invalid or compensate for the losses." Liu Guohua said that according to the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Disputes over Differentiated Ownership of Buildings, if the construction unit or other actors arbitrarily occupy or dispose of some owners, change their use functions or engage in business activities, the people's court shall support the obligee's request to remove obstacles, restore the original state, confirm that the disposition is invalid or compensate for losses. If the right holder requests the actor to use the proceeds after deducting reasonable expenses to supplement the special maintenance funds or other purposes decided by the owner for the unauthorized business activities specified in the preceding paragraph, the people's court shall support it. The actor bears the burden of proof for the cost expenditure and its rationality.

Liu Guohua also reminded that because the property management fee and the advertising income of the community are completely different fees, according to Article 7 of the Property Management Regulations, the owners have the obligation to pay the property service fee on time in property management activities, which violates the property service contract. If the owners fail to pay the property service fee within the time limit, the owners' committee shall urge them to pay it within a time limit; If it fails to pay within the time limit, the realty service enterprise may bring a lawsuit to the people's court. Therefore, if Li Ke refuses to pay the property management fee all the time, she may also be sued by the property management company to the court.

I hope the community is harmonious.