How to calculate the property fee for the owner's overdue repossession?

The delivery of the new house is a pleasure, but the owner has not closed the house for various reasons. If the owner fails to collect the house within the time limit, should the property fee be collected during the period, and who should he ask for it? Disputes over property fees continue. In the end, who should bear the property fees from the date when the developer delivers the house to the date when the buyer repossesses the house?

How to calculate the property fee for the owner's overdue repossession?

According to Article 42 of the Property Management Regulations, the owner shall pay the property service fee in accordance with the property service contract. If the owner and the user of the property agree that the user of the property shall pay the property service fee, the owner shall bear joint and several liability from the agreement. Property that has been completed but has not been sold or handed over to the property buyer shall be paid by the construction unit. Judging from this clause, the validity of the contract is first clarified, and the provision that the property service fee shall be paid by the construction unit in the case that the completed project has not been handed over to the property buyer is supplemented. This clause takes "delivery" as the dividing line, but the word "delivery" is not a legal term, and its exact meaning should be "delivery". Regarding this clause, various localities have supplemented and refined it in the form of regulations, taking several cities as examples:

Article 45 of the Regulations of Shanghai Municipality on Residential Property Management stipulates that the property service fees incurred in the month from the effective date of the previous property service contract to the delivery date of the house for sale shall be borne by the construction unit. The property service fee from the month following the delivery date of the house for sale to the month following the termination of the previous property service contract shall be borne by the buyer according to the charging standard of the previous property service stipulated in the house sales contract; If there is no agreement in the house sales contract, it shall be borne by the construction unit.

Article 38 of the Regulations of Hangzhou Municipality on Property Management stipulates that before the property is delivered for use, the construction unit shall pay the property service fee to the property service enterprise in accordance with the stipulations of the previous property service contract; After the property is delivered for use, the property service fee shall be borne by the owner.

Article 34 of the Regulations on Property Management in Jiangsu Province stipulates that the property service fee in the early stage shall be borne by the property buyer according to the standards agreed in the house sales contract. If there is no agreement in the house sales contract, it shall be borne by the construction unit. The completed property that has not been sold or delivered to the property buyer shall be fully borne by the construction unit.

From the above provisions, it can be seen that the way of "delivery" is generally recognized in judicial practice in various places, and it is logical to determine whether the house is "delivered", which is the key to judge the subject of property fees. What exactly is the "delivery" sign? From the common sense, the buyer can only enter the room by handing over the key or the room card. Therefore, in judicial practice, "turning the key" is often used as the delivery sign of the first-hand house. However, if property buyers delay repossession or refuse to get keys, it will cause risks to developers. Therefore, in practice, in order to avoid the above problems, developers often add a clause in the pre-sale contract of commercial housing: if they fail to go through the acceptance and handover procedures within the time limit and hand over the house in the future after a written reminder, they will be regarded as the transfer of the house from the second day of the acceptance and handover date agreed in the reminder, and the relevant risk responsibilities will be borne by the buyer. This clause means that as long as the "Notice of Delivery of Commercial Housing" and the dunning certificate are submitted during the trial, the property fee can be claimed from the purchaser.

The pre-sale contract of commercial housing belongs to the format contract drawn up and used repeatedly by developers. Is this agreement fully effective? In fact, judging whether this clause can be directly applied needs to be discussed in two situations: the first situation is that the house buyer refuses to accept the house without reason, in which case the owner should be judged to be "malicious" subjectively, and then the agreement in the pre-sale contract of commercial housing should be directly applied, and the house should be regarded as a transfer, and the property fee should be borne by the buyer; The second situation is that there are quality problems in the house, and it is necessary to determine the severity of the quality problems of the house and whether they meet the delivery standards. If the house meets the delivery standards, for example, the house delivery permit has been obtained, or the quality problems do not affect the actual living use, it should still be considered that the buyer should bear the property fee, otherwise the developer should bear the property fee.

In judicial practice, property companies are often prevented from participating in "delivery" litigation. The court held that whether the house is delivered is a dispute over the commercial housing sales contract, and the developer and the buyer should file a lawsuit on the grounds of breach of contract before the property company can file a lawsuit. In this case, we suggest that the starting point of the property fee should be clearly stipulated in the preliminary property service contract, that is, the property fee should be calculated according to the date agreed in the notice of repossession, so that the court can directly invoke the relevant provisions in the trial process and take "delivery" as the determination of the facts of the case to reduce unnecessary troubles and losses. In addition, although China is not a case law country, the judgments of intermediate people's courts in various places will also have a certain impact on local grass-roots courts, so it is also a good way to provide an effective judgment for judges as a reference.

(The above answers were published on 20 15- 10-30. Please refer to the current actual purchase policy. )

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