In August 29, 2010, a surname lady to come to the Advisory said, I live is 3 buildings, developers of rental floor restaurant on the ground floor, resulting in more than 5 households have water, smoke, odor, noise damage, because the dining room through the back door of small hospital, I doubt to help train their loss associated with this, because property companies belonging to the developers, we repeated representations with the property company, they verbally promised to solve but no cash, so we suffer lasted more than two years, we put forward several owners do not pay property costs, the property company has raised no objection, engaged in the catering after two years of rental business, I went to restaurant closed after the property costs, the property of the company insist on full pay, both sides disagree they insist refused so far. The property of the company after the withdrawal of my prosecution to the court, asked me to pay refused to pay property costs 2000 yuan, is also required to pay the fines of 7000 yuan, is the property owners of the company and what is the relationship? Shanghai property companies charge a late fee is no legal basis?

   Answer: first, according to the report, Shanghai and even the whole country in the past 10 years the owners default or jujiao property fee phenomenon showed a rising trend. Only 32 times as much as the first half of this year Shanghai Huangpu District court accepting this kind of cases is the year 2001. Beijing property rates generally in the 50-60%, the lowest is only about 30%. A variety of reasons or refused to pay the arrears of property charges, such as not enough price, even for arbitrary price charges; severe service is not in place, violations of the legitimate rights and interests of owners; family property stolen, the property ignored; defective quality housing, the property is not trying to solve. A large number of facts prove, the owners are default or jujiao property fee, because he is really no way to have no ability to safeguard their legitimate rights and interests, refused to pay the arrears or just a no solution.

   Second, the author told the Ms. Zhang, pay property fee in full and on time, is the main services shall contract obligations. Otherwise, not only in violation of the property service contract, infringes the lawful rights and interests of property service enterprises, and other damage the interests of the majority of owners. Because of this, any default or jujiao property fee, many owners against a party, win is very rare.

   Third, "the State Council on the revised '' decision" property management regulations "property management enterprise" to "property service enterprise", by "management" to "service", is the location of the property owners and the relationship more clear and reasonable. Property company is all the owners to spend money to hire, essentially both contractual relationship with a service by service, a hired and hired contractual relationship. But the new "Regulations" to "management" to "service" is a concept of the guide, the practice of "management" and "service" be zigzag, life. If only the "service" as "obedience", really good property services can not be achieved, the two sides should find a balance point between the "service" and "management", which both sides need to practice constantly running. Don't say what the property "owners spend money to invite grandpa", "what a typical relationship between mother-in-law and daughter-in-law" etc..

   Fourth, "general principles of civil law" stipulates: the parties may agree in the contract a party breaches the contract, to pay a certain amount of liquidated damages to the party. "Contract law" stipulates: the parties contract may agree that one party shall according to the default to the other party to pay a certain amount of liquidated damages. Therefore, the penalty is in accordance with the contract or law of the parties, one party's breach of contract should the other party to pay the money. It is a kind of civil liability form, only to be the default behavior of the application. However, such as water, electricity, gas, and financial institutions, the unit received the payment is actually a continuation of planned economy, the enterprise on behalf of the state fails to timely payment for money, more precisely is the replacement of belonging to the main contract, and there are laws, regulations and judicial interpretation stipulates.

   Fifth, fines for overdue payment of all costs to the state and the need to pay an extra money. It is a violation of the form of the administrative action shall bear administrative responsibility, can only apply for late payment fees to the state can act. Overdue administrative fine gold has certain punitive, but default civil disputes with gold only compensate Shouyuefang loss of function, not punitive in nature. Therefore, the property company late fees obviously belong to "be wide of the mark".

   In my opinion, the people's court in the trial of such cases, should understand the true meaning of the parties said, if the payment means for damages for breach of contract, should inform the claim payment party may change the claim and asked if the fines for breach of contract change. Agree to the change, to support, does not agree to the change, insist on payment, should be rejected. The author thinks, not consistent on both sides, can press should bear the responsibility side explained that the arrears, inform the parties, according to each other's interpretation changed his position, agree to the change of support, does not agree to the change, should be based on the claim without law, both sides agreed not meet legal requirements for rejected.

   Sixth, Shanghai property companies should be how to collect property costs? Interim Measures of Shanghai city residential property management fees of service classification issued by Shanghai Municipal Price Bureau, Shanghai Municipal Housing Authority land resources "" (Shanghai price business [2005] No. 011) tenth provisions of the second paragraph: "violation of the property owners do not pay the cost of the service contract of service within the time limit, the owners' committee shall urge its deadline pay; the realty service enterprise can also be in accordance with the law to recover." Owners Convention, the development of the city "(model version)" the twelfth stipulation: "the owner does not pay property services in accordance with the provisions, the owners' committee shall supervise the deadline for delivery, the owner fails to pay, the owners of the committee or its property management companies in the property management area property management fees received released intersection, and indicate the backorder cost owners room Dunning; still not delivered, the owners of the general assembly or the entrusted property management companies to the property of the local people's court." Thus it can be seen, the main collection of property charges is the first owners Commission, the lawsuit to recover is the general assembly or the owners of the property management enterprises. If property companies not fulfilling the requirements of the Dunning procedure, belong to violate Dunning procedure behavior.

   Seventh, Shanghai property companies charge a surcharge has no laws or rules? Interim Measures of Shanghai city residential property management fees of service classification issued by Shanghai Municipal Price Bureau, Shanghai Municipal Housing Authority land resources "" (Shanghai price business [2005] No. 011) ninth provisions of the second paragraph: "property charges stated price includes: property management business name, service content, service standards, charging method, charging starting and ending time, fees, charges, supervision report telephone etc.." Please note, the city did not allow property companies charge a late fee provisions. Especially the high fines, some daily 5/1000 charge, that is in a year property fee payment to property charges 182%, 32 times the national loan interest rates, these are unfair, there is no legal basis. Accordingly, the author thinks, this is fine for delaying payment to property charges 350%, owners refused to pay the fine for delaying payment, shall be upheld in court. The court generally will not support payment, unless the parties entered into a service contract with a clear agreement.

   Eighth, the "Interim Procedures" provisions of article tenth: "the provisions of the property management enterprise shall abide by state laws, regulations and relevant documents, strictly implement the residential property services contract, provide value consistent with the property services to owners. If not in performance of the realty service contract, cause, property, security sector master damage, it shall bear the corresponding legal liabilities." Accordingly, if Ms. Zhang has evidence to prove that the property loss is the property companies default, fails to fulfill the obligation of safety guarantee in the statutory limitation can be caused by, for property companies bear the liability of compensation.

     (my QQ number: 594241989, 1762818809; mobile phone 18321864965)