Answer in detail whether it is necessary to pay the property management fee if the new house is not occupied.

Do I need to pay the property management fee if I don't live in a new house? This problem is quite a headache for many citizens. Here are some cases to answer in detail.

Reader Miss Zhang: I bought a suite in a real estate in the urban area last year. I went to check in some time ago and was told to find a property management company to handle it. Property management companies require owners to sign a property management convention and pay the property management fee for one year at a time, which leads to many owners' dissatisfaction and refusal to pay. We think that the Property Management Convention contains unfair and unreasonable contents, but we refuse to sign the contract. Some owners also have conflicts or disputes with property management companies. In this case, the property management company said that the key would not be given unless the convention was signed. Does the property management company have the right to seize the owner's key?

Answer: When the owner buys a house, he forms a house buying and selling relationship with the developer of the house, and the house buying and selling contract is the embodiment of this legal relationship between them. In this legal relationship, both the owner and the property management company have various rights and obligations, but for the developer, the most fundamental right is to collect the owner's purchase money, and the most fundamental obligation is to deliver the house to the owner. The owner has paid all the purchase price to the developer in accordance with the house sales contract, and the developer shall fulfill the obligation to deliver the house to the owner.

Delivery is to check in the owner, give the owner the key and let them occupy the house. This is the obligation of the developer. Since it is a contractual obligation, developers should perform it in accordance with China's contract law. Article 60 of China's Contract Law stipulates that "the parties shall fully perform their obligations as agreed". The meaning here is: the parties should perform it themselves, and they should perform it completely.

What is "self-realization"? The house sales contract is signed by the owner and the developer, and the purchase price is also given to the developer, so the developer should hand over the house himself, and the property management or other institutions cannot fulfill the obligation of handing over the house. If it is really difficult, you can let other institutions go through the check-in procedures. Other agencies, as agents, cannot appear in their own names, and can only deliver houses in the name of developers.

What is "full performance"? As long as the owner does not breach the contract, the developer should deliver the house to the owner, which does not increase the responsibility and obligation of the owner. As an institution that delivers houses, property management companies only complete the delivery of houses for developers, and cannot increase their rights and increase the responsibilities and obligations of owners in the process.

From a legal point of view, the legal relationship between housing sale and property management is two independent legal relationships and should not be confused with each other. No matter what happens between the owner and the property management company, it is the content of the legal relationship of property management, and has nothing to do with the legal relationship of house sale. If the developer takes the owner's obligation to complete the legal relationship of property management as the condition of delivering the house, it will increase the owner's contractual obligations and responsibilities in disguise, which is not in line with the contract law and other laws.

Therefore, neither the developer nor the property management company can refuse to go through the check-in formalities or give the owner the key because the owner has not signed the property management convention and has opinions on the property management fee.

The new house is unoccupied.

Do I need to pay the property management fee?

Reader Mr. Zhang: I bought a house on the south bank of the river and have already delivered it. Although we didn't check in, the property management company asked us to pay the property management fee. Is this reasonable?

A: This issue involves two issues: check-in handover and property management. Strictly speaking, the delivery in the sale of houses should be based on the registration of the property right certificate as the final delivery standard. However, in practice, buyers and sellers often take the check-in handover as the main procedure to check whether the house meets the statutory and agreed delivery conditions.

In the commercial housing sales contract, the procedures of housing handover are agreed and standardized. For example, developers are required to provide housing acceptance certificates to buyers at the time of housing delivery; If the purchased commercial house is residential, the developer shall also provide a residential quality guarantee and a residential instruction manual. If the developer fails to produce the supporting documents or the supporting documents are incomplete, the purchaser has the right to refuse to hand over the house, and the developer shall bear the responsibility for delaying the delivery.

Since the house has been delivered, the relevant property management fees should be paid regardless of whether the owner actually lives, because the property management company has provided many property services, such as security and cleaning, regardless of whether the owner actually lives.

Can the subscription fee be refunded?

Reader Mr. He: I subscribed for a house in a certain district in Jiangbei years later and paid a subscription fee of 20,000 yuan. The sales girl verbally said that if she didn't want to buy it, she could return it. Later, because I needed money for treatment because I was sick at home, I didn't want to buy a house and wanted to refund the subscription, but at this time I went to the developer to refund the money, but I was stuck. Can the subscription fee be refunded?

Answer: Lawyer Hu of Guangdong Shangdian Law Firm said that whether the subscription money can be returned depends first on whether the developer obtained the pre-sale permit when paying the subscription money and whether the subscription money has the nature of "deposit".

If the developer has obtained the pre-sale permit when paying the subscription fee, and the intended purchaser also pays in the form of "deposit" (signing a deposit contract or issuing a deposit certificate), the house is regarded as settled in principle, so that a contractual relationship is established between the purchaser and the developer. If the sales need to be terminated due to property buyers, the subscription fee cannot be refunded. If the house sale is terminated due to some force majeure factors, the subscription fee can be refunded. In addition, if the sale is terminated because of the developer's problems, the developer must also pay liquidated damages.

If the developer fails to obtain the "Real Estate Pre-sale Permit" when paying the subscription, that is, it does not have the legal conditions for the pre-sale of commercial housing, and the purchase deposit agreed with the buyers is invalid. According to the principle of dealing with invalid contracts in the Contract Law, the developer should unconditionally return the deposit to the buyers regardless of whether the two parties sign the subscription agreement. If a developer fails to obtain a real estate pre-sale permit, intentionally conceals important facts or provides false information, and falsely claims that he has obtained a real estate pre-sale permit, he shall bear the liability for contracting fault, and in addition to returning the down payment of the property buyer, he shall also compensate the property buyer for economic losses such as interest and other related property losses.

(The above answers were published on 20 13- 10-24. Please refer to the actual situation for the current purchase policy. )

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