Zhongcheng Qingtai Real Estate Perspective: Whether a single owner has the qualification as a subject of litigation involving matters of public interest.
Published:
2020-08-26
Brief of the case
Pay a department of a property company to serve the international city garden community owners, in violation of the property service contract, did not pay the property service fees in full and on time. The property company sued to pay property fees and bear the loss of breach of contract. Fu Xiaoguang filed a counterclaim request: 1. The counterclaim defendant repaired all the damaged parts of the corridor of Building 1-3 of the International City Garden; 2. The counterclaim defendant cleaned up all the random piles of debris and small advertisements in all the corridors of the International City Garden; 3. The counterclaim defendant cleaned up the vehicles parked in the International City Garden; ...... 5. The counterclaim defendant included the entire proceeds from the use of the public area setting advertisement into the International City Garden Public Maintenance Fund; ...... 9. The counterclaim defendant stopped occupying the owner's club and restored it to its original state; 10. The counterclaim defendant included all the proceeds from the rental of the International City Garden Owner's Club into the International City Garden Public Maintenance Fund;.......
court decision
The first-instance judgment held that Fu's related litigation request involved the interests of all owners, and Fu's request with a single-family owner as the main body did not have the subject qualification, and the court rejected the litigation request.
The second instance rejected Fu's appeal and upheld the original verdict.
legal analysis
Article 70 of the the People's Republic of China Property Law stipulates that "the owners shall have the ownership of the exclusive parts of the building, such as residential and business premises, and the right to share and jointly manage the common parts other than the exclusive parts"; Article 76 stipulates that "the following matters shall be jointly decided by the owners: (1) to formulate and amend the rules of procedure of the owners' assembly; (II) to formulate and amend the management regulations of the building and its ancillary facilities; (III) elect the owners' committee or replace the members of the owners' committee; (IV) select and dismiss the property service enterprise or other managers; (V) raise and use the maintenance funds of the building and its ancillary facilities; (VI) the alteration and reconstruction of the building and its ancillary facilities; ...... (VII) other major matters concerning the right of common and joint management. The decision on the matters specified in Items 5 and 6 of the preceding paragraph shall be approved by the owners whose exclusive part accounts for more than 2/3 of the total area of the building and more than 2/3 of the total number of owners. The decision on other matters in the preceding paragraph shall be approved by the owners whose exclusive part accounts for more than half of the total area of the building and more than half of the total number of owners". Since the common part belongs to all owners and involves the common and common management rights of all owners, single-family owners cannot represent the interests of other owners and do not meet the provisions of Article 76 of the Property Law. Therefore, for matters involving common parts in the community, Single-family owners file a lawsuit to the court and do not have the qualification of litigation subject.
Summary
The owners have the ownership of the exclusive parts of the residential and business houses in the community, and the common parts other than the exclusive parts have the right of common and joint management. For the owners of the community, the part of the community belongs to all the owners. If there are related rights and interests based on the common part, the corresponding lawsuit should be filed through the owners' committee, and the single-family owners do not have the qualification of litigation subject.
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