The owner sued the Civil Defence Bureau
On October 17, 19 owners of Jiayuan Garden in Beijing filed a case against Beijing Chaoyang District Civil Defence Bureau for trial in Chaoyang District People’s Court of Beijing. The bureau was sued to the district property management company - Beijing Pearl River Century Property Management Co., Ltd. (hereinafter referred to as the Pearl River Property) issued a "civilian defense project use permit" and "administrative license decision" for the specific administrative misconduct.
The agents of 19 homeowners and lawyers of Beijing Yipai Law Firm, Fan Jianli, told reporters that in June of this year, Zhujiang Property had obtained the "Civil Defence Engineering Certificate" and "Administrative License Decision" issued by the Civil Defense Bureau of Chaoyang District of Beijing. According to the report, the owner said that the owner had parked in a civil air defense project that was used as a residential underground garage. In addition to the original 120 yuan management fee, he had to pay 300 yuan more per month. The owners were very dissatisfied with this.
After knowing the situation, the owners repeatedly negotiated with the Zhujiang Property and failed to reach an agreement. So they appealed to the court and Zhujiang Property was listed as a third party. The owners stated in the administrative complaint that the Chaoyang District Civil Defence Bureau issued the “Civil Air Defense Project Use Certificate†and “Administrative License Decision†to the Zhujiang Property without telling the owners that the administrative procedures were illegal and infringed the interests of the community owners. The property does not have the ownership and lawful use rights of underground civil air defense projects in the community. It requested the court to order the Chaoyang District Civil Defence Bureau to revoke the “Civil Defence Engineering Use Certificate†and “Administrative License Decision†issued to Zhujiang Property.
The reporter noted that with the implementation of the “Property Lawâ€, the “First Case of Property Rights Law†in Hunan, Sichuan, Yunnan and other places have been released in high-profile. The first working day after the National Day holiday, Haidian, Fangshan, Changping, Daxing, Shi Jingshan and other grass-roots courts have concentrated on a number of cases of using the “Property Law†to safeguard their rights, most of which belong to owners and property companies, and real estate developers disputes based on the community’s use of public facilities and income rights.
On October 9, the People's Court of Daxing District of Beijing heard the case of the Kowloon City Homestead Owners' Committee suing the property management company. The Owners' Committee considered that the Jiulongshan Property Management Company leased the parking space of the community and that according to the relevant provisions of the Real Right Law, the community parked. The proceeds from the leasing should be attributed to the owners’ committee and the prosecution required the property company to return the rent of more than RMB 1 million for 10 years.
Can property law solve all disputes?
"With the implementation of the "Property Law," disputes caused by public facilities in parking lots, green areas and other areas will be more and more." A number of lawyers and scholars interviewed by the reporter on the 25th stated that "a very important reason for national legislation In the “Property Lawâ€, many provisions are only principle, and some gaps in the implementation process are urgently needed to be compensated for by the judicial interpretation, otherwise it is difficult to implement.†Yang Lixin, professor of the Law School of Renmin University of China.
Bi Wenqiang, a lawyer at Beijing Shengting Law Firm, said that the implementation of the Property Law provided a legal basis for the attribution of parking spaces in the community. Article 74 of the Property Law stipulates that “in the construction area, the parking spaces and garages planned for parked cars shall first meet the needs of the owners. Within the construction area, the parking spaces planned for the parking of the cars and the ownership of the garages shall be sold by the parties. It is agreed by way of lease or bonus, etc. Occupying the roads common to the owner or other sites for the parking of parking spaces for cars belongs to the owners.†This means that the owners have ownership of the exclusive parts of the buildings, commercial buildings, etc. in the buildings. The common parts other than the exclusive part enjoy the rights of common and joint management. “The parking spaces in the community are divided into two kinds: ground parking spaces and underground parking spaces. At present, ground parking spaces mostly occupy roads, green spaces, or other sites owned by the owners and are used to park cars. They should be owned by the owners.â€
"But because the "Property Law" does not clearly stipulate, even if it belongs to the common ownership of the owners, how to divide the ownership of each owner."
For the problem of parking spaces that frequently cause disputes, Bi Wenqiang thinks that there are two situations: ownership belongs to the developer, and of course the parking fee must be paid. If the ownership is owned by the owner, the payment should be decided by the owner’s committee. “Although the “Property Law†has been implemented, there are still two legal blind spots: For parking spaces owned by developers, are the fees and standards for implementation subject to government intervention? Parking is not yet available when the owner’s committee has not yet been created. How is the fee charged?"
According to the data from the Beijing Municipal Construction Committee, there are more than 5,000 communities in Beijing currently managed by property companies, and there are less than 500 communities where owners' committees are established. Current laws and regulations have not made unified and explicit regulations for parking fees in residential areas. Therefore, parking fees in many communities are determined by the property company itself.
Bi Wenqiang believes that the Property Rights Law does not make explicit provisions on the ownership of underground garages, and stipulates that the lease, sale, and bonuses will be used to make the agreement. “Owners and developers and property companies may only have an equal status and may agree in reality. Most of the residential property owners are in batches, and there is a serious difference in the right to know between the two parties. When a party is very strong, there is no possibility of agreement. The operability of this provision will be greatly reduced."
Qin Bing, an attorney with Beijing Yitong Law Firm, raised another issue with underground parking spaces. “In practice, many commercial housing communities use underground civil air defense projects as garages, but its ownership issues are in a vacuum zone. In recent years, This caused an endless stream of disputes. The verdicts in each case are not consistent. It is imperative that there be a clear provision."
Bi Wenqiang said that the law does not require infinite refinement, and that dispute resolution depends on consultations between the property company and the owners. It cannot be negotiated, but only resorts to law. The “Property Law†first proposed the concept of “differential ownership of buildingsâ€. This actually gave the owners a lot of space for rights protection. The specific analysis of specific cases should be done by courts and judges. For owners, the best way to fight for rights is to set up an owners' committee.
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