Is the property contract not filed valid? Look at this case.

After buying a house, buyers spend the most time dealing with real estate. If the property company is not registered in the business area, it will not enjoy the protection of laws and regulations. So is the property contract valid without filing? The following small series introduces it in detail for everyone, hoping to help everyone.

1. The filing of the property contract is invalid.

If only the property contract is not filed, the property enterprise has filed it. Then that means the subject qualification is protected. As long as the property contract is the true will of both parties, all procedures are authorized by the owners' meeting and the industry Committee. Then, the property service contract was established. However, some related pricing rights cannot exceed the original property service price.

If the property enterprise and the property contract are not filed, it is equivalent to cross-regional operation and there is no protection. Neither the subject nor the content of the behavior is protected by the property department. Once found, it will be severely punished by the property authorities, and even be suggested to revoke the relevant certificates.

According to Article 2 of the Property Management Regulations, property management refers to the activities that the owner selects a property service enterprise, and the owner and the property service enterprise repair, maintain and manage the house, supporting facilities and related sites in accordance with the property service contract, so as to maintain the environmental sanitation and related order in the property management area.

Legal basis:

Article 2 of the Property Management Regulations

The term "property management" as mentioned in these Regulations refers to the activities of the owners to maintain, conserve and manage the houses, supporting facilities, equipment and related sites by hiring property service enterprises, and to maintain the environmental sanitation and order in the relevant areas.

Second, the case analysis of whether the failure to file the property service contract affects the effectiveness of the property service contract.

Case:

Owner A claims that the previous property service contract was signed in 2007, and the third-class property qualification certificate of property company B was issued in 2009. The registration time of business license is years, and the charging license is issued. In other words, the property company signed the preliminary property service contract before obtaining the property qualification, charging license and business license.

A believes that the lack of liability for breach of contract in the previous property service contract violates the principle of fairness and justice in the contract law; Signing the prophase realty service contract without going through the bidding procedure, filing in accordance with the law, and fulfilling the obligation of expressing and informing violates many provisions of the Property Management Regulations, and conforms to the stipulation that the contract in the fifth paragraph of Article 52 of the People's Republic of China (PRC) Contract Law (hereinafter referred to as the Contract Law) violates the mandatory provisions of laws and administrative regulations, so the prophase realty service contract should be deemed invalid.

Case source:

Supreme Law (20 18) Jiminshen No.4006

The court held that:

1. Before the owners' meeting and the owners' meeting select the realty service enterprise, the construction unit has the right to select the realty service enterprise and sign the prophase realty service contract, which is binding on the owners.

2. Article 14 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of the People's Republic of China (PRC) Contract Law stipulates that the' mandatory clause' stipulated in Item (5) of Article 52 of the Contract Law refers to the mandatory clause that takes effect. Article 2 of the Interpretation stipulates that in any of the following circumstances, if the owners' committee or the owners request to confirm that the contract or the relevant clauses of the contract are invalid, the people's court shall support it: (1) the entrustment contract signed by the property service enterprise to entrust all the property service businesses in the property service area to others; (2) clauses in the realty service contract that exempt the realty service enterprise from its responsibilities, increase the responsibilities of the owners' committee or owners, and exclude the main rights of the owners' committee or owners. The realty service contract mentioned in the preceding paragraph includes the prophase realty service contract. This clause is effective and mandatory, and the property service contract that violates this clause is invalid.

Case A did not provide the situation that the previous property service contract violated the provisions of Article 2 of the Interpretation, so the contract was not invalid.

Property management contract filing system belongs to non-administrative licensing examination and approval matters, that is, whether the contract involved is filed or not does not affect the effectiveness of the contract; It is stipulated in the Regulations on Property Management that the construction unit should select and employ property service enterprises through bidding, and the property service enterprises should have qualification certificates, which is the norm of property management activities, so as to urge the property service enterprises to improve their property management and service level, do their due diligence and better provide corresponding services. The above terms are mandatory for management, and are not mandatory, which does not affect the effectiveness of the previous property service contract.

Note: Distinguish between management regulations and effective regulations. For example, the lease contract, if there is no construction project planning permit, is a violation of mandatory laws and regulations, the contract is invalid; If it is not registered for the record, it belongs to administrative regulations and shall be handled by the administrative department.