Real estate perspective... glass curtain wall self-explosion and fall caused by personnel and property damage, who should bear the responsibility?

According to Article 1253 of the the People's Republic of China Civil Code, "If a building, structure or other facility and its shelving or hanging objects fall off or fall and cause damage to others, and the owner, manager or user cannot prove that he is not at fault, he shall bear tort liability. After the owner, manager or user has made compensation, if there are other responsible persons, he shall have the right to recover compensation from the other responsible persons." It can be seen that the Civil Code limits the subject of such tort liability to the owner, the manager and the user, and these three types of subjects should bear the responsibility to the outside world, and then the problem of recovery of other responsible persons arises; the owner, the manager and the user need to prove that they are not at fault to be exempted from liability, that is, one of the cases where the burden of proof is reversed. So, the owner, manager, user in practice whether to bear the responsibility, the basis of responsibility, the author will combine a number of cases for a brief analysis.

Article 3 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Disputes over the Distinguished Ownership of Buildings stipulates that "in addition to the common parts stipulated by laws and administrative regulations, the following parts within the building division shall also be recognized as the common parts referred to in Chapter 6 of Title II of the Civil Code: (1) the basic structural parts of the building, such as the foundation, load-bearing structure, exterior wall and roof, public access parts such as passages, stairs and lobbies, auxiliary facilities and equipment such as fire fighting and public lighting, and structural parts such as refuge floor, equipment floor or equipment room..." According to this, the exterior wall of the building belongs to the common part, while the glass curtain wall composed of steel frame and glass usually forms the exterior wall of the whole building, which is an unchangeable and unmovable part, so its nature should be the exterior wall, common parts other than the exclusive parts of the building. According to the judgment of the Beijing No. 2 Intermediate People's Court (2023) Beijing 02 People's Final Judgment No. 1176: "According to the opposite interpretation, if the glass curtain wall is interpreted as a window, a building with only windows and no exterior walls does not conform to the concept of a house recognized by the rule of thumb of daily life. Moreover, the owner has no control over the glass curtain wall and does not conform to the nature of the proprietary part", which further confirms the practical view that the glass curtain wall is usually a common part of the building.

But there are still exceptions. In the judgment (2021) Su 01 Min Zhong No. 679 issued by the Nanjing Intermediate People's Court of Jiangsu Province, the court of first instance held: "The exclusive part of the building should meet the following conditions: (1) It has structural independence and can be clearly distinguished; The (II) has independence in use and can be used exclusively; the (III) can be registered as the object of ownership of a specific owner. In this case, the broken glass is located on the balcony on the south side of the house in room 47XX. According to the" Nanjing City Commercial Housing presale Contract "in the flat and layered plan, the south side of the 47XX room closed balcony belongs to the exclusive part of the house. From a functional point of view, the broken glass and other glass together to surround the balcony, play a closed balcony function. From the structural point of view, there is a frame division between the broken glass and the lower balcony glass, not the balcony glass of the whole building is a whole. It can be seen that the glass structure of the fan is independent, the owner can use it independently, it belongs to the composition of the balcony on the south side of the 47XX room, and does not belong to the outdoor wall agreed in the" pre-property contract. Therefore, the broken glass belongs to the exclusive part of the 47XX room house owned by the owner, and the property company is not responsible for the maintenance of the glass." According to the agreement on the glass curtain wall in the Nanjing Commercial Housing presale Contract and the appearance of the building involved in the case, the court of second instance determined that the building involved in the case had a glass curtain wall structure, and according to the relevant provisions of the glass curtain wall and the appearance characteristics of the disputed area involved in the case, It is determined that the appearance of this area is obviously different from other areas of the building, which conforms to the characteristics of glass curtain wall. In the judgment (2021) Beijing 03 min zong No. 10561 issued by Beijing no 3 intermediate people's court, the court of second instance, according to the agreement in the annex to the contract for the sale of existing commercial housing, both the external wall of the public part and the windows of the indoor part are LOW-E hollow glass curtain walls, and the common parts of the property stipulated in the owners' temporary convention include outdoor walls, thus it can be determined that the falling windows belong to the exclusive parts of the commercial housing purchased by the owners and do not belong to the common parts.

To sum up, whether the glass curtain wall belongs to the exclusive part of the building or the common part should be judged according to its structural characteristics, appearance, and the relevant contents of the contract. The glass curtain wall that is identified as a common part usually has the following characteristics: ① It is usually composed of steel structure and glass, which constitutes the external wall of the whole building; ② It is an unchangeable and unmovable part; ③ The user has no control over it. The glass curtain wall identified as an exclusive part usually has the following characteristics: ① it has structural independence and can be clearly distinguished; ② it has utilization independence and can be used exclusively; ③ it is different from other areas of the building in appearance; ④ it can be registered as an object of specific personal ownership. By distinguishing the nature of the glass curtain wall, the distinction between different responsible persons and different ways of assuming responsibility is produced.

According to Article 8 of the Measures for the Administration of Safety Maintenance of Existing Building Curtain Walls issued by the Ministry of the People's Republic of China and Construction: "Determination of the person responsible for the safety maintenance of existing building curtain walls: (1) If the building is owned by a single owner, the owner is the safety maintenance of the building curtain wall Responsible person; (II) the building is jointly owned by multiple owners, each owner shall jointly negotiate to determine a person responsible for safety maintenance, and take the lead in the safety maintenance of the building curtain wall." Article 11 stipulates: "the daily maintenance and overhaul of existing building curtain walls may be entrusted to property management units or other units specializing in the maintenance of building curtain walls." Accordingly, if the glass curtain wall is a common part, all the owners of the building shall jointly bear the responsibility for safety maintenance, and shall also be jointly liable for the damage caused to others; if the glass curtain wall is a proprietary part, the single owner shall bear the responsibility for it, It should also be liable for the damage caused to others. If the owner agrees to entrust the maintenance work of the glass curtain wall to the property and maintenance unit, the unit usually also has the responsibility of safety maintenance, which should be performed in accordance with the contract between the owner and the unit.

When the glass curtain wall is identified as a common part, the owner and the manager (if any) usually share the responsibility, and the user can generally be exempted from liability.In the (2020) Lu 0103 Minchu No. 6161 judgment issued by the Shizhong District people's Court of Jinan City, Shandong Province, the judge held that the property service agreement clearly stipulated that the defendant Yuantai property Company was responsible for the maintenance and management of the common parts of the house, the common part refers to the load-bearing structural part of the main body of the house (including walls, internal and external load-bearing walls, columns, beams, floors, roofs), outdoor walls, floors, halls, staircases, corridors, etc., and the falling glass shall be identified as the outer glass of the double-glazed curtain wall on the 18th floor of the commercial building involved, and the damaged position shall belong to the outdoor wall in the "common part" in the agreement, it is the maintenance and management scope of the property service responsibilities of the property company; after the owner of the involved house entrusts the involved house to the property company for property management, he still has the obligation to supervise and urge the property company to strictly perform the property management responsibilities, regularly and timely inspect and maintain the public areas or common parts of the involved house, and fails to provide evidence to prove that he has strictly performed the supervision, supervision and supervision duties of the involved property management, in this case, joint and several liability shall be borne according to law; the user of the house involved is responsible for the management and maintenance of the special use area or part of the house involved, but the damaged part involved is the outer glass of the overall glass curtain wall of the commercial building involved, which belongs to the common part of the house, and the user has no corresponding management responsibility and management ability. Therefore, the user has no fault in this case, there should be no civil liability.

In the judgment (2023) No. 1176 issued by Beijing No.2 Intermediate People's Court, the judge held that the whole building where the house involved in the case is located is jointly owned by multiple owners, and all owners are responsible for the safety maintenance of the building curtain wall. However, the owners have entrusted Company A and Company A's property branch to provide property services for the building where the house involved in the case is located by signing property service agreements respectively, property services include the maintenance and management of common parts of the house. Accordingly, the right holder requires Company A and Company A's property branch to have a contractual basis for maintenance. In addition, the broken glass curtain wall of house 1601 is located in the outer part that the owner cannot touch. there is no evidence to prove that the broken glass is caused by the user or by a third party. therefore, company a and the property branch of company a shall bear the maintenance obligation according to the contract.

In the (2021) Lu 11 Min Zhong No. 3171 judgment issued by the Intermediate people's Court of Rizhao City, Shandong Province, the judge held that the glass curtain wall involved in the case was not a window that could be opened from the house by itself, and the falling glass could not be seen from the house. In this case, it is too strict to require the owner to bear the responsibility of managing and maintaining the glass curtain wall involved in the case.

In the judgment (2021) Su 01 Min Zhong No. 679 issued by the Nanjing Intermediate people's Court of Jiangsu Province, the judge held that the owner of the building curtain wall is responsible for the safety of the use of the building curtain wall, the owner is responsible for the maintenance and repair of the building curtain wall, and the building is shared by multiple owners. All owners are responsible for the maintenance and repair of the building curtain wall, and one of the following institutions or personnel can take the lead to organize the maintenance and repair of the maintenance of the building curtain wall: 1, the owners' committee; 2, the owner's representative determined by negotiation; 3, the entrusted property service enterprise or professional organization. The property company shall perform its obligations in accordance with the provisions of the "Preliminary Property Contract" and in accordance with the relevant provisions of the Nanjing City Building Curtain Wall Maintenance and Repair Management Measures.

Where the glass curtain wall is identified as a proprietary part, the owner is usually liable; whether the administrator is liable is subject to the existence of an agreement in the management contract that he or she is liable for the safety and maintenance of the proprietary part; the user is also required to prove that he or she is not at fault.In the judgment (2021) Beijing 03 Minzong No. 10561 issued by the Beijing Third Intermediate People's Court, the judge held that Zhang, Liu and Zheng, as the owners of the falling window, failed to fulfill their safety maintenance obligations and were at fault. The window falls and bears tort liability for damage to others; regarding the liability of the property company, according to the agreement in the annex to the "Commercial Housing Existing House Sales Contract, the external wall of the public part is local stone wall and LOW-E hollow glass curtain wall, the fine decoration standard of the indoor part is" window: LOW-E hollow glass curtain wall ", and the common parts of the property agreed in the owner's temporary convention include outdoor wall, thus it can be determined that the falling window belongs to the exclusive part of the commercial housing purchased by the owner and does not belong to the common part. Regarding the liability of Company A, the relationship between Company A and Zhang is an entrusted lease. The victim requested Zhang to bear tort liability in this case and did not claim that Company A should bear tort liability. Therefore, Zhang claimed that Company A should bear tort liability in this case, which lacks basis.

If one or two parties between the three types of subjects are responsible, and the other subjects in the three types of subjects are also at fault, the subject of external responsibility can recover from them. For example, in (2021) Beijing 03 Minzong No. 10561 judgment, because the appellant only requires the owner to bear the tort liability caused by the self-explosion and fall of the glass curtain wall, and does not list the lessee on the floor where the falling glass curtain wall is located as a common appellee, the court does not analyze whether it should bear the tort liability according to the principle of "no complaint and no attention. However, this does not mean that the lessee on this floor is necessarily exempt from liability. If the responsible party believes that it is at fault, it can still sue against it and require it to bear the corresponding responsibility; similarly, if the owner and the property company have a property contract, After assuming responsibility for the victim, the owner can still file a lawsuit against the glass curtain wall as stipulated in the property contract that it should be managed and maintained by the property company.

If the owner of the building where the glass curtain wall is located is responsible for the damage caused by the self-explosion and fall of the glass curtain wall, if it is believed that the quality of the construction unit is defective or the quality of the glass supplier's products is unqualified, it can be recovered. In addition, it should be noted that, the owner shall make claims within the warranty period or warranty period agreed in the construction contract, project quality warranty or purchase contract and product quality warranty concluded between the owner and the construction unit or glass supplier.