Mr. Hong, the current director of the property committee, told reporters that the community implements a remuneration property service contract, and Qisheng Property must prepare an annual management plan and an annual maintenance plan every year in combination with the actual situation of community management, especially for the use of property fees collected, kept and paid by the defendant, and the budget and final accounts for the use of annual property fees must be submitted to the property committee for review and approval, but Kai Shing Property has not reported to the property committee, and has used the community property fees without the approval of the property committee.
Unclear accounts of strata fees are the top problem of the Owners' Committee. Director Hung said that for a long time, Kai Shing Property did not collect all the property fees paid by the major owners, and Kai Shing Property used the property fees paid by the small owners to pay various service fees without passing the budget report and approval confirmation to the Owners Committee. What's more serious is that when the property fee exceeds 9 yuan/square meter per month, Kai Shing Property does not apply to the property committee for approval, nor does it announce to all owners.
The Owners' Committee believes that the actions of Kai Shing Property have caused the owners of the community to bear a loss of about $390,000 except for the major owners. Director Hong explained to reporters that because they signed a contract with Qisheng Property for the remuneration system of property fees, the settlement of property fees for all owners of the community is settled by the actual costs, and the unused ones belong to all owners, if it is not enough, all owners should pay an additional amount of 9 yuan per square meter per month. Among them, the property fee of the large owner is stipulated in the service contract to be "charged according to the actual annual cost of each year", and the remuneration system is also applicable.
Director Hong said that the properties held by the major owners are all serviced apartments, clubs and shops along the street, and according to the practice of the real estate service industry, the property service fee paid by them should be higher than the property service fee of the general residence, but the property service fee rules of the Mingshiyuan community are not like this.
The rule is unfair to small business owners. The monthly property fee of 9 yuan/square meter for small owners is prepaid, while the large owners are settled according to the actual expenses incurred, which is postpaid. ”
Director Hung believes that Kai Shing Property should collect the full amount of property fees from the major owners, but Kai Shing Property has not fulfilled the relevant obligations of the property service contract.
Director Hong:
Judging from the actual book, in 2021, the small owner paid 2797015 yuan of property fees as agreed, and lost 380,000 yuan after settlement, and he had to pay according to the contract. The cost paid by the large owners to Kai Shing Property is about 1559218 yuan, which is less than 4.8 yuan per square meter per month, which is about 50% of the property fee of the small owners, and is also far lower than the monthly property fee prepayment level of 9 yuan per square meter resolved by the general meeting of owners. ”
The Owners Committee requested to jointly supervise the separate account of the property fee of the community with Kai Shing Property, but the property management company did not cooperate.
Director Hong said that Kai Shing Property is the only unit entrusted by the Owners Committee to subcontract the property projects it undertakes, but when Kai Shing Property subcontracts service projects, it acts as the main body of external subcontracting together with the major owners, and also allows the large owners to mix the service items and costs of the external business part of their own holdings with the property service content and costs of the public areas of the community, which is a serious breach of contract and infringement of the rights and interests of other owners.
In order to sort out the "family foundation" of the community, in February 2023, the Owners Committee hired two accounting firms to audit the income and expenditure of the community's property management service projects in 2020-2022 in accordance with the relevant terms of the community property service contract. The audit opinion is that the service fee income and expenditure statement "does not fully and fairly reflect the income and expenditure of property management services in your community, so we cannot issue an audit opinion on the "202X Annual Service Fee Income and Expenditure Report of Shanghai Mingshiyuan Property Management Service Project". ”
The court investigation relayed the problems in the audit: the 2021 service fee income and expenditure report reflects that the income of small owners is more than 2.79 million yuan per month according to the construction area of 9 yuan per square meter, and the overrun of property fees is more than 390,000 yuan, and the income of large owners is about 1.6 million yuan, the balance of property fees is 0 yuan, and the property fee overrun of the entire community is about 260,000 yuan. The property management fee of the major owner is not recorded as property management fee income in the Kai Shing Property Account Set, but is recorded as the account of operating expenses and included in the property income, and the relevant property service fee is not accrued and paid in the Kai Shing Property Account Set. Except for the apportionment of the expenditure items reflected in the attached statement, other property management expenses are not apportioned in the statements and accounts of Kai Shing Property.
During the trial, Kai Shing Property did not accept the audit results provided by the Owners' Committee. Kai Shing Property stated that the contract stipulated that the major owner would be charged according to the actual annual expenses of each year, that is, they would be paid according to the actual expenses incurred. In 2021, the actual property management fees paid by the major owners were about $4.14 million, instead of $1.6 million as claimed by the Owners' Committee. The reason for this difference is that part of the staff costs, maintenance costs, cleaning fees, energy consumption costs, TV costs, greening maintenance fees, security fees, administrative expenses, public liability insurance fees, etc., are paid directly by the large owners to the suppliers, and the total costs are about 2.54 million yuan, and some of the costs are paid directly by the large owners to the property management company, and the total costs of this part are about 1.6 million yuan, and the sum of the two is the large owners The actual expenses incurred for property management in 2021 far exceed the fees payable at the unit price of 9 yuan. Because the special audit report submitted by the Owners Committee was only for the account of Kai Shing Property, it only reflected the income of 1.6 million yuan, and did not reflect the 2.54 million yuan paid directly by the major owner to the supplier. Kai Shing Property said that they have negotiated and communicated with the major owners, and from January 1, 2023, the major owners will also pay the property fee to the property company's account at a unit price of 9 yuan.
The reporter learned that Qisheng Property is an affiliated enterprise of the large owner. In 2016, Kai Shing Property signed the "Ming Shi Yuan Property Service Contract" with the Ming Shi Court Property Committee, stipulating that the property service fee will be charged according to the remuneration system. After the expiration of the contract in October 2021, no new property service contract was signed, and Kai Shing Property has continued to provide property services for the Mingshiyuan community to this day. During this period, the Owners Committee and the property management company discussed the renewal of the appointment on several occasions, but the two parties failed to negotiate due to many issues, and the issue of renewal could not be resolved for a long time.
The court did not make a judgment on the dispute between the Mingshiyuan Owners Committee, the majority owner and Kai Shing Property, but invoked Article 278 of the Civil Code of the People's Republic of China and other laws and regulations to dismiss the Owners' Committee's lawsuit.
The court stated that the general meeting of owners of Mingshiyuan community is an autonomous organization that represents and protects the legitimate rights and interests of all owners of Mingshiyuan community in property management activities, and the business committee of Mingshiyuan community is the executive body of the owners' meeting and should perform corresponding duties in accordance with the law. However, according to the Rules of Procedure of the General Meeting of Owners of Mingshiyuan Community, the Regulations on the Management of Mingshiyuan Community and relevant laws and regulations, the litigation claims involved in the plaintiff's lawsuit in this case involve major matters of community management, which are matters jointly decided by the owners, and shall be voted on by the owners who account for more than two-thirds of the area of the exclusive part and the number of owners who account for more than two-thirds, and shall be agreed by the owners who participate in the voting of more than half of the area of the exclusive part and more than half of the owners who participate in the voting. The plaintiff's lawsuit was not voted on by the general meeting of owners, and could not express the legitimate rights and interests and common will of all owners in the community.
Director Hong of the Mingshiyuan Industry Committee told the reporter of "Lao Ye Compare" that according to the actual situation of the community, there is no way to meet the article "owners of more than two-thirds of the exclusive area and more than two-thirds of the number of owners participating in voting" stipulated in Article 278 of the Civil Code.
The large owners account for 54.9 percent of the exclusive area, and the property management company is his affiliated enterprise, so how can we small owners make up two-thirds of the exclusive area? For us, the law is stuck here, and there is no solution. ”
Director Hong said that the Owners Committee had given the Owners Committee a blanket authorization in accordance with the statute of the general meeting of owners of the community and the management of the community, and appealed to the Shanghai No. 1 Intermediate People's Court to continue the trial of the case.
At noon on April 9, the reporter of "Lao Ye is True" went to Qisheng Property to understand and verify the situation said by the property committee. The relevant staff said that they needed to communicate with the big owner before they could reply. Later, the staff member replied to the reporter that their views were subject to the court's "Civil Ruling".
The reporter learned from the Mingshiyuan Community Business Committee that the Industry Committee has repeatedly reported the situation of the community to the Xujiahui Housing Security and Housing Management Institute of Xuhui District. On April 10, the housing management office told reporters that the Mingshiyuan property committee was "appealing" and that it was inconvenient for them to be interviewed.
On the same day, the housing management office issued a "Notice of Conversation" to Kai Shing Property:
"According to the residents' feedback, in the audit report of the Mingshiyuan Community (20 years, 21 years, 22 years), there are unclear statements on the use of property fees, unapproved property fee expenditures, unreasonable allocation of community management service fee expenditure costs, Dijing Pavilion and the clubhouse have not recorded the property management fee income in the Kai Shing Property Account Set, and the relevant property fees have not been accrued and paid in the Kai Shing Property Account Set. The relevant person in charge of your company and the project manager are now interviewed and verified. ”
The last sentence of the notice: "If you (the employer) neither come on time nor contact the firm, you (the unit) may bear adverse legal consequences." ”