The property fee is the fee charged by the property management company to the property owner and user for the daily maintenance, repair, renovation and other services related to the residents' life of the housing public buildings and their equipment, public facilities, greening, sanitation, transportation, public security and environment in the community in accordance with the property service agreement.
Top 10 Scenarios
Let's talk about property management
01 If there is a quality problem in the house, can the owner refuse to pay the property fee?
No. Housing sales and property services belong to two different legal relationships, the issue of housing quality is the issue between the owner and the real estate development enterprise, while the property fee is the issue between the owner and the property service enterprise, and the two cannot be confused. The owner cannot require the property management company to be responsible for the construction quality and other issues in the early stage of the real estate development enterprise, and cannot refuse to pay the property fee on this ground.
For housing quality problems, if the quality problems that occur within the warranty period and fall within the warranty period, the real estate development enterprise shall perform the warranty obligations in accordance with the "Residential Quality Assurance Certificate" and be liable for compensation for the losses caused.
【Links to legal provisions】
Article 937 of the Civil Code of the People's Republic of China A property service contract is a contract in which the property service provider provides the owner with property services such as the maintenance and maintenance of buildings and their ancillary facilities, environmental sanitation and management and maintenance of related order within the property service area, and the owner pays the property fee.
Property service providers include property service enterprises and other managers.
02Can the owner refuse to pay the property fee if he has not signed a written contract with the property management company?
No. In litigation, the landlord may not refuse to agree to pay the property management fee on the defence of not signing the property management contract. The fact that the owner has enjoyed and benefited from the property management services has constituted a de facto property management relationship between the owner and the property management company. In accordance with the principles of fairness, reasonableness, good faith, and with reference to the charging standards stipulated by the government or the charging standards of similar property service projects, the court ordered the owner to pay the corresponding property service fees.
【Links to legal provisions】
Article 939 of the Civil Code of the People's Republic of China The pre-property service contract concluded by the construction unit and the property service provider in accordance with law, as well as the property service contract concluded between the owners' committee and the property service provider lawfully selected by the owners' assembly, shall be legally binding on the owner.
Article 944 of the Civil Code of the People's Republic of China The owner shall pay the property fee to the property service provider in accordance with the agreement. If the property service provider has provided services in accordance with the agreement and relevant provisions, the owner shall not refuse to pay the property management fee on the grounds that he has not accepted or does not need to accept the relevant property management services.
03Can the owner refuse to pay the property fee if he is not satisfied with the service provided by the property management company?
Case-by-case analysis. Property services are provided for all owners and all aspects of the overall area, involving the public interest of all owners and the community as a whole. If the owner believes that there are minor defects in the property management services provided by the property management service company and refuses to pay the property management fee (such as some garbage is not cleaned up in time, the lighting in the public area is damaged, etc.), the personal income of the property owner will be far less than the damage caused to the property management company and most of the owners, so the property management fee cannot be refused on the grounds that there are minor defects in the property management service.
However, if there are major defects in the property management service, such as violating laws and regulations, and the safety guarantee is obviously not in place, the property management fee can be appropriately reduced; The owner can claim compensation from the property for losses caused by defects in property services.
04 If the owner thinks that the property management fee standard agreed in the property service contract signed by the owners' committee is too high, can he request an appropriate reduction of the property management fee?
No. The property fee standard is within the scope approved by the competent department, and the property service contract signed by the owners' committee and the property management company through legal procedures shall be agreed, representing the overall intention of all owners, and shall be legally binding on all owners, and individual owners shall not have the right to request a reduction in the fee standard.
【Links to legal provisions】
Article 939 of the Civil Code of the People's Republic of China The pre-property service contract concluded by the construction unit and the property service provider in accordance with law, as well as the property service contract concluded between the owners' committee and the property service provider lawfully selected by the owners' assembly, shall be legally binding on the owner.
05 If the owner's home is stolen, will the property management company be liable for compensation?
It depends. Although the property management company does not have the obligation and ability to fully ensure that the personal and property of the owners of the community is not harmed in any way, it shall fully perform the duties of a good manager in accordance with the contract to reduce the risk of illegal infringement of the owners. If the property management company fails to perform its obligations as agreed in the contract, resulting in the opportunity of criminals to take advantage of the theft of the owner's home, the property management company shall bear the liability for breach of contract according to the provisions of the Civil Code. The scope of liability of the property management company needs to comprehensively consider factors such as the severity of the breach of contractual obligations and the causal relationship between the breach and the consequences of the damage. If the property management company has fulfilled its safety management obligations, it will not be liable for legal liability.
【Links to legal provisions】
Article 46 of the Property Management Regulations Property management enterprises shall assist in the safety precautions within the property management area.
Article 942 of the Civil Code of the People's Republic of China Property service providers shall, in accordance with the agreement and the nature of the use of the property, properly repair, maintain, clean, green and manage the common parts of the property service area, maintain the basic order in the property service area, and take reasonable measures to protect the personal and property safety of the owners.
For violations of laws and regulations related to public security, environmental protection, fire protection and other laws and regulations in the property management service area, the property service provider shall promptly take reasonable measures to stop it, report to the relevant administrative department and assist in handling it.
06Can the owners' committee manage the property by itself and charge the owners a management fee?
No. The Civil Code stipulates that the entity engaged in property management activities can also be other managers in addition to property service enterprises. The owners' committee is a type of "other manager", and this kind of management belongs to the model of self-management of the property. The owners' committee shall, in accordance with the decision and authorization of the general meeting of owners, organize property management and collect necessary management fees, which the owners shall abide by. The owners' committee has the power to sue owners who are in arrears of strata fees in violation of the management regulations.
【Links to legal provisions】
Paragraph 2 of Article 937 of the Civil Code of the People's Republic of China Property service providers include property service enterprises and other managers.
Paragraph 1 of Article 4 of the Guiding Rules for Owners' Meetings and Owners' Committees The decision of the owners' meeting or the owners' committee shall be binding on the owners.
07 The waterproof tiles on the exterior wall of high-rise residential buildings continue to fall off, resulting in personal injury to the owners or damage to the vehicles under them, should the property management company be liable for compensation?
The exterior wall of high-rise residential buildings belongs to the common parts of the residence, and in the case of continuous peeling of the waterproof bricks on the wall, the property service enterprise is obliged to put forward suggestions for the use of special residential maintenance funds for maintenance, renewal and transformation; On the other hand, based on the property service contract, the property management company is the property manager and is obliged to take necessary safety precautions to avoid personal and property damage before repairing, updating or renovating. If the above obligations are not fulfilled, the property management service enterprise needs to bear the corresponding liability for the damage.
【Links to legal provisions】
Article 1253 of the Civil Code of the People's Republic of China Where a building, structure or other facility, as well as its shelving or hanging objects, falls off or causes 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 makes compensation, if there are other responsible persons, they have the right to recover from the other responsible persons.
08 If the owner violates the agreement and fails to pay the property fee within the time limit, can the property service provider take measures such as stopping the power supply and water supply?
No. The parties to the water supply and power supply contract are the owner and the water supply and power supply company; The parties to a property management contract are the owner and the property management company, and the two are in different legal relationships. The right to cut off water and electricity is an important right of defense for the performance of the contract of the water supply and power supply company, and the property company is not the subject of the water supply and power supply contract, so it naturally does not enjoy the right to water supply and power supply.
【Links to legal provisions】
Article 944 of the Civil Code The owner shall pay the property fee to the property service provider in accordance with the agreement. If the owner violates the agreement and fails to pay the property fee within the time limit, the property service provider may urge the owner to pay within a reasonable period of time; If the property service provider still fails to pay after the expiration of a reasonable period of time, it may provide litigation or apply for arbitration. It is not allowed to stop the supply of electricity, water, heat, gas and other methods to urge the payment of property fees.
09Does the landlord have the right to review the income and expenditure of the property management company?
It depends. If the income and expenditure of the community's public revenue and property requested by the owner does not exceed the scope of the owner's right to know, the property management company shall cooperate with the inspection.
【Links to legal provisions】
Article 943 of the Civil Code of the People's Republic of China Property service providers shall regularly disclose to the owners the matters of service, responsible personnel, quality requirements, charging items, charging standards, performance, as well as the use of maintenance funds, the operation and income of the common part of the owners, and report to the owners' assembly and the owners' committee.
Article 13 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases Involving Disputes over the Differentiated Ownership of Buildings: Where the owner requests to publish or inspect the following circumstances and materials that shall be disclosed to the owner, the people's court shall support it: (1) the raising and use of funds for the maintenance of the building and its ancillary facilities; (2) The management statute, the rules of procedure of the general meeting of owners, and the decisions and minutes of the general meeting of owners or the owners' committee; (C) the property service contract, the use of the common part and the income; (D) the building zoning planning for parking car parking spaces, garage disposition; (5) Other circumstances and materials that shall be disclosed to the owners.
10. Can the property management company impose various fines on the owner?
No. The Administrative Punishment Law and other relevant laws and regulations strictly limit the subject of fines, which can only be imposed by administrative organs or organizations authorized by laws, regulations and rules within the scope of their statutory authority. The property management company has no right to impose fines on all kinds of violations such as littering, indiscriminate construction, and indiscriminate parking.
Source: Xiangshan County People's Court, Sanmen County People's Court, Zhejiang Tianping