The Supreme Court judicial interpretation of property service contract dispute cases and related legal issues

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Interpretation of the Supreme People's Court on several issues of specific application of law in the trial of property services disputes

(by the Supreme People's Court on April 20, 2009 the 1466th meeting of the Judicial Committee Act release No. [2009]8)

 

Notice of the Supreme People's Court of the people's Republic of China

 

"Explain" the Supreme People's Court on several issues of specific application of law in the trial of property services disputes the Supreme People's Court on April 20, 2009 the 1466th meeting of the judicial committee, is hereby promulgated, shall enter into force as of October 1, 2009.

Two hundred nine years in May 15th

 

In order to correctly judge the property services disputes, protecting the legitimate rights and interests according to law, according to "people's Republic", "general principles of the civil law of the people's Republic of China Property Law", "contract law of the people's Republic of China" and other laws and regulations, combined with the practice of the civil trial, this interpretation is formulated.

Signed in accordance with the law and the realty service enterprise first construction units of the property services contract signed, the realty service enterprise and owners of the Committee and the owners to move the realty service contract, binding to the owner. A plea to the owners are not parties to the contract on the grounds, the people's court shall not support.

Second meets one of the following circumstances, the owners' committee or the owners request that the contract or the relevant provisions of the contract is invalid, the people's court shall support:

(a) the realty service enterprise property services within the region of all property services are commissioned and signed a contract;

(two) the property services contract from the realty service enterprise responsibility, aggravate the owner or owners of the commission responsibility, exclude the owner or owners of the commission the main rights provisions.

Property services contracts include the prophase realty service contract referred to in the preceding paragraph.

Third property services companies do not perform or do not completely fulfill the provisions of property service contract or by laws, regulations and relevant industry standards to determine the repair, maintenance, management and maintenance obligations, the owners request the realty service enterprise continue to perform, take remedial measures or the responsibility of breach of contract compensation for losses, the people's court shall support.

The realty service enterprise make public service commitment and the formulation of the service rules, shall be determined as part of the realty service contract.

Violation of property services contracts article fourth owners or laws, regulations, management rules, the implementation of acts against property service and management, property service enterprise requests the owner to bear restitution, stopping the infringement, eliminating the interference of other civil liability, the people's court shall support.

Fifth realty service enterprise in violation of the stipulations of the realty service contract or law, regulations, departmental rules and regulations, arbitrarily expanded the scope of collection, improve the standards of charges or duplication fees, the owners a plea to charge for, the people's court shall support.

The owners request the realty service enterprise returned illegal costs which has been collected, the people's court shall support.

Sixth written reminders, the owners refused to pay or within a reasonable time limit for exhortation is not to pay property costs without justified reasons, the property service enterprise request property owners pay fees, the people's court shall support. The realty service enterprise has been in accordance with the contract and related regulations to provide services to owners, not only enjoy or need not accept property related services for the defence, the people's court shall not support.

Seventh property owners and the lessee, borrower or any other use of the property agreed by the use of the property to pay property costs, property service enterprise requests the owner to bear joint and several liability, the people's court shall support.

Eighth owners in accordance with the law the provisions of article seventy-sixth of the program to make the dismissal of the realty service enterprise after the decision, the owners of the committee to request cancelling the contract of property, the people's court shall support.

Property services to owners of Enterprises Committee property fees claims, the people's court shall inform the costs of the property owners in arrears shall claim rights.

The termination of ninth realty service contract rights and obligations, the owners request the refund has been received in advance of property service enterprise, but has not yet provide property services costs of the property, the people's court shall support.

The realty service enterprise requests the employer payment of arrears of property charges, according to the sixth interpretation of provisions.

The termination of Tenth realty service contract rights and obligations, the owners of the committee to request the realty service enterprise withdraw from the property services, property services area transfer of housing and related facilities, and related information required by property services and special repair fund the escrow, the people's court shall support.

The realty service enterprise has refused to quit, transfer, and exist in a de facto relationship property services for owners, request the obligation to pay the property services contract rights after the termination of the costs of the property, the people's court shall not support.

Eleventh this interpretation relates to the realty service enterprise shall apply to the property law, article seventy-sixth, article eighty-first, article eighty-second referred to other managers.

Twelfth for property lessee, borrower or any other property used to implement the contract violation of property services, property services disputes and law, regulations or the management stipulation, the people's court shall refer to the interpretation of the provisions on the owners of treatment.

Article thirteenth the interpretation shall be implemented as of October 1, 2009.

The explanation which is final, after the implementation of these interpretations retrial petition or decide to retrial according to the procedure of judicial supervision cases, does not apply to this interpretation

The realty service contract disputes judicial interpretation learning notes (a)

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"PropertyAdministrationRegulations "in terms of the majority of property management companies, property management area, reflects the change of a philosophy of the interpretation of a word or the" management "to" service ".

In order to correctly judge the property services disputes, protecting the legitimate rights and interests according to law, according to "people's Republic", "general principles of the civil law of the people's Republic of China Property Law", "contract law of the people's Republic of China" and other laws and regulations, combined with the practice of the civil trial, this interpretation is formulated.

Signed in accordance with the law and the realty service enterprise first construction units of the property services contract signed, the realty service enterprise and owners of the Committee and the owners to move the realty service contract, binding to the owner. A plea to the owners are not parties to the contract on the grounds, the people's court shall not support.

The owner is not the property contract of service form parties, according to the current law and the specific property services contract, the owner is the actual item of rights and obligations under the contract of property service enjoy and stakeholders, has formed the property contract of serviceThe essence.

"Property management regulations"

Article twenty-fourth country to encourage the construction unit in accordance with the real estate development and property management principle of separating, the way investors select a corresponding quality property management enterprises.

Residential property construction units,ShouldThroughBiddingThe way of selecting a corresponding quality property management enterprises; bidders is less than3A residential or smaller, the approval of the competent departments of real estate administration of the people's Government of the location of the property area, the county, can be selected by agreement with the corresponding quality property management enterprises.

The first paragraph of article thirty-second in the property management activities of the enterprises should have an independentLegal personQualifications.

Effect does not have the qualifications of a legal person property contract -- this is theCompulsory specification managementViolation of this provision, does not cause the contract invalid.

"Property law"

Eighty-first owners to manage the building and affiliated facilities thereof, may also entrust the realty service enterprise orManagement and other management.

The realty service enterprise hired by the construction entity or other managers, owners have the right to replace.

Compared with the "property management regulations", the expansion of the property services contract subject, by the owners and the realty service enterprise to expand to the owners, property service enterprises and other management.

The use of collective land to build residential area is the so-called small property room exist in reality, the local village committee to provide property services, fees charged property, the property service behavior the legal significance of the real meaning of the provisions of this article, which triggered the dispute is not as applicable.The Supreme People's Court ("building for the distinction between ownership of property services, the judicial interpretation of" the understanding and application of258Page)

We should recognize the fact that the property service contract.

Article second under any of the following circumstances, the owners' committee or the owners request that the contract or the relevant provisions of the contract is invalid, the people's court shall support:

The scope of the void contract includes commissioned contract also includes the original property services contract.

(a) the realty service enterprise property services within the region of all property services are commissioned and signed a contract;

Part to delegate effectively:

1If agreed by the relevant owners? With the provisions in the general principles of the civil law and contract law about to delegate, I think should be subject to the approval of the employer, but form should be loose to understand, such as the form of soliciting opinions posted on the District, and to all the owners of the objection period.

2Whether to have the corresponding qualifications.

To entrust the behavior, can only be entrusted to the special business franchise company.

"Property management regulations"

Fortieth property management companies to property management within the regionSpecial servicesThe business entrusted to professional service enterprises, but may not be within the regionAllProperty managementTogetherTo entrust to others.

(two) the property services contract from the realty service enterprise responsibility, aggravate the owner or owners of the commission responsibility, exclude the owner or owners of the commission the main rights provisions.

According to the "contract law" is fortieth, and the law of contract fortieth in terms of format and set, so, if the realty service contract is concluded based on the voluntary consultation, on equal, this not because the invalid; only the realty service contract for the property service enterprise to provide the format of the contract, we consider therefore invalid.(the same letter,273Page)

Property services contracts include the prophase realty service contract referred to in the preceding paragraph.

Third property service enterprises do not perform or do not completely fulfill the provisions of property service contract or by laws, regulations and relevant industry standards to determine the repair, maintenance, management and maintenance obligations, liability for breach of contract owners request property services companies continue to perform, to take remedial measures, or to compensate for losses, the people's court shall support.

The realty service enterprise make public service commitment and the formulation of the service rules, shall be determined as part of the realty service contract.

"Property management regulations"

Article thirty-sixth the realty management enterprise shall, in accordance with the stipulations of the realty service contract, provide the corresponding services.

Property management enterprise fails to fulfill the contract between the property services, property owners, cause body damage, it shall bear the corresponding legal liabilities.

"Contract law"

Article 107th if a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the agreement, shall be liable to continue to perform its obligations, to take remedial measures, or to compensate for lossesLiability for breach of contract.

Article 112nd if a party fails to perform the contract or its performance of the contractual obligations is not in conformity with the agreement, to take remedial measures after the performance of obligations or, other losses, shall compensate for the losses.

Violation of property services contracts article fourth the owner or legal, regulations, management rules, the implementation of acts against property service and management, property service enterprise requests the owner to bear restitution, stopping the infringement, eliminating the interference of other civil liability, the people's court shall support.

On the management of the nature of the statute is not a scholar, summed up the law of autonomy and contract said two, "the Supreme People's court for reference of building ownership, property service of judicial interpretation and application of the" understanding304Page, this does not repeat.

Learning the "owners should pay attention to the violation of property services contract or law, regulations, management rules, the implementation of acts against property service and management" what kind, how qualitative should be in the law, and then find out the corresponding liability form.

The author thinks, the behavior of a class is the default behavior, such as not timely payment of property services costs; another kind of tort liability, such as changing the proprietary part structure, damage to the relevant owners (about without interested owners agree to analysis, and qualitative and Countermeasures I change the use of property this does not repeat.). The default behavior of owner shall, according to the "contract law" article one hundred and seven and article one hundred and twelve continue to perform, such as compensation for loss of liability for breach of contract; tort owner shall bear the cessation of the infringement, eliminate the obstruction effect, such as tort liability rule. According to the different request right to choose the form of responsibility, and the provisions of this article slightly chaos.

Article fifth the realty service enterprise in violation of the property service contract or law, regulations, departmental rules and regulations, arbitrarily expanded the scope of collection, improve the standards of charges or duplication fees, the owners a plea to charge for, the people's court shall support.

The owners request the realty service enterprise returned illegal costs which has been collected, the people's court shall support.

1Note that the charges are based on the provisions of the contract or law, regulations, departmental rules and regulations. "Property management regulations" provisions of article forty-first the State Council department in charge of prices in the construction administrative departments under the State Council shall formulate the property service charges, belongs to the department regulations; the provisions of article forty-third above the county level people's government department in charge of prices in the real estate administrative departments, shall strengthen the supervision of the property service charge, which belongs to the local government regulations. Visible, regulations including the regulations but does not include local government regulations.

2Property services costs do not include the cost of overhaul of common parts and public facilities.

3Processing the Owner reasonable defense:1Does not fulfill the contract obligations to reject the request of the owners to pay for;2Incomplete performance in accordance with the "contract law" provisions of article one hundred and seven cost reduction or refund the overcharged fees;3Public cost sharing is not reasonable in accordance with the relevant provisions of the fair determination;4Rack one's brains for ingenious devices to expand, to raise the standard of charges or fees in accordance with the relevant standards.

Be careful:The performance of the contract does not comply with the contract in real life because of technical problems caused by, or defective, or the various efforts have not be satisfied with the owners, the owners can not be used to defend; for the management of losses to the owners, can be prosecuted.

4The realty service enterprise cannot because of the property owners refused to pay fees and the cutting off of water and electricity (involves is not the same legal relationship):1The relevant agreement, contract invalid (because the contract infringes the lawful rights and interests of water supply company);2Water supply company authorized property management companies charge utilities and can take the cutting off of water supply measures, only to call for utilities and not a property management fee.

Article sixth the written reminders, the owners refused to pay or within a reasonable time limit for exhortation is not to pay property costs without justified reasons, the property service enterprise request property owners pay fees, the people's court shall support. The realty service enterprise has been in accordance with the contract and related regulations to provide services to owners, not only enjoy or need not accept property related services for the defence, the people's court shall not support.

Combined with the "property management regulations" on sixty-seventh:

1. written warnings is necessary procedure?

2. written warnings are the subject of the industry committee and the realty service enterprise?

"Property management regulations" article sixty-seventh: contract violation of property services contracts, the owners do not pay overdue property services costs,The owners of the CommitteeShall urge its deadline pay; overdue is not paid, the property management enterprises can sue to people court.

1Basis for claim request the cost of property as a legal claim or contractual rights. The former such as the "property management regulations" article second, article forty-second, article sixty-seventh; the latter is the property services contract (only refers to the real estate service contract, based on the claim of the prophase realty service contract that is the legal right of claim, because the construction units and property services companies signed a Contract non owner's authorization, but the legal provisions; real estate service contract with industry committee and the realty service enterprise contract, but that is all the owners of the committee is authorizedAnonymous agentRules)

2Owe to property charges reasonable defense -- counterpleaing right (about continuing contract the counterpleaing right analysis reference letter No.308Page);

3. "that justification" should follow the principle of honesty and credit and the principle of fairness.

4Overdue payment of property charges of breach of contract damages (surcharge) computational problems: "The Supreme People's Court on the late payment penalty shall be calculated in accordance with the approved of what standard "There is no agreement overdue payment default payment standards for the parties to the contract, the people's court may refer to the provisions of the people's Bank of Chinese financial institutions of interest on overdue loans standard calculation of late payment penalty. The people's Bank of China adjustment of financial institutions collectingBe overdueLoan interestStandard, the people's court may adjust the calculation of late payment default payment criterion. According to the people's Bank of Chinese1996Years4Month30Release of silver (1996)156No. "about reducing financial institutions deposit, lending rates notice" provisions, at present, late payment default payment standards can be perDay 4/10000Calculation. (the people's Bank of China adjust financial institutions collectingLoan interestStandard,2004Years laterDay 2/10000 points).

5Meet the conditions can apply for a payment order.

The realty service contract disputes judicial interpretation learning notes (two)

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Article seventh of the property owners and the lessee, borrower or any other use of the property agreed by the use of the property to pay property costs, property service enterprise requests the owner to bear joint and several liability, the people's court shall support.

"Property management regulations"The first paragraph of article forty-second shall, according to the owners of property services contract agreed to pay the property services. Property owners and property used by the people agreed to pay property services costs, from its agreement, joint owners pay responsibility.

Be careful.

1This article is the joint and several liabilityStatutoryJoint and several liability, may not agree to exclude;

2Property companies can choose to owners or occupiers of property claims for payment of property charges;

3The use of the property to the owners of property companies can all right of defense against the realty service enterprise;

4The use of the property and the owners agreed to perform the obligation of owners is the use of people to pay property charges conditions or use in the owners not to perform the contract or fails to fulfill the contract obligations is not in conformity with the agreed time and refused to pay the property charges, people can use due to the above reasons refused to pay property costs; otherwise, use the person shall not be refused to pay property expenses;

5Property owners pay fees can be used after recovery to the property.

6The use of the property and the property service enterprise contract (such as welfare housing distribution units) circumstances, whether the owners and users shall bear joint and several liability? Industry authority in the realty service contract and property companies signed the agreed range shall bear joint and several liability, the exceeding part does not bear joint and several liability.

Eighth owners in accordance with the law the provisions of article seventy-sixth of the program to make the dismissal of the realty service enterprise after the decision, the owners of the committee to request cancelling the contract of property, the people's court shall support.

"Property law" provisions of article seventy-sixth "the following matters byThe co ownersDecision: (four) selection andDismissalThe realty service enterprise or any other manager; "hereDismissalThe realty service enterprise orRelieveThe realty service contract, so the industry whether has the right to terminate the contract, what reason, the realty service enterprise may offer a counter claim property services? First of all, should be clear is the current theory about the relationship between the owners and the basically that is a kind of principal-agent relation, namely the industry commission agent owners to fulfill certain obligations to exercise certain rights, legal effect to the owners, "property management regulations" article fifteenth (two) "the industry committeeOn behalf ofThe provisions of property services contracts signed "owners and owners hire property management companies more certification industry authority and the owners is aOn behalf ofRelationship.Thus, the industry to the interests of the owners have the right to terminate the owners and the realty service enterprise property services contracts. Theoretical debate about the nature of the property service contract (that is the mainstream principal-agent relationship), however, the property service contract and the contract have one thing in common: the two areContinuous contract1, the smooth realization of the successful performance of the contract and the purpose of the contract both parties cannot do without each otherTrustAnd cooperate with each other, therefore, the realty service contract shall give the owners a right. "Contract law" provisions of article 410th contract the parties may terminate the contract at any time (the theory behind thatThe basis of trustVery important, pay attention to the experience).

Judgment need not be quoted or also quoted the "contract law" article 410th.

Retroactivity of contract rescission. "Contract law" the ninety-seventh stipulation: "after the lifting of the contract, termination is not performed, perform; has been performed according to the nature of the contract and performance, the parties may seek restitution, take other remedial measures, and shall have the right to claim compensation for losses." The theory and practice are that this article is to distinguish between continuous contract and non contract continue to distinguish different ex works, namely non continuous contract rescission has the retroactivity of contract rescission, continue to not have retroactive effect, because of the continuing of restitution after contract rescission is often not feasible. Specific to the property services contract, the termination of the contract after the owners no longer responsible for delivery of property charges obligations, but to accept the property services according to the system of unjust enrichment restitution interest. The return way and the amount of reference "the views of the people through" includes 131st originals and fruits (return to matter), "on the law applicable to Construction Contract Dispute Cases Interpretation of the" second provisions "construction contractInvalidConstruction project, but the final acceptance, the Contractor's request according to the contract agreed to pay the project cost, should be supported "(return to action). The specific property services contract owners unjust enrichment of an amount equivalent to the amount of arrears of property charges.

The realty service enterprise may unilaterally terminate the contract, there are positive and negative two understanding. That is based on trust, according to the above analysis foundation should not exist, the property services enterprises should enjoy the right to unilaterally terminate. The negative thought, should be the common interests of all owners of the right to terminate the property companies unilateral constraints. The author thinks that, combined with the actual situation of the realty service contract and service, if the two sides did lose trust, allow the property company unilaterally cancelling the contract, but shall be subject to the "contract law" article ninety-second and the "property management regulations" thirty-ninth limit, perform special repair funds return relevant information and escrow and handover work obligations.

On termination of the contract, the other party loss compensation. "General principles of civil law" stipulates that the 115th "contract termination or change, does not affect the right of claim", "contract law" stipulates that the ninety-seventh "has been performed according to the nature of the contract and performance, the parties may seek restitution, take other remedial measures, and shall have the right to claim compensation for losses." , "contract law" provisions of article 410th "to the other party as a result of cancelling the contract caused by the loss, in addition to not attributable to the party's cause, shall compensate for the losses." The above provisions of the principle or joint based on the principle, a party to exercise the right causes losses to the other party, should be compensation, except not attributable to that party.

Be careful.

1Owners do not enjoy the right (not industry will be jointly decided by the owners);

2Industry authority to terminate the contract must be based on the decisions of the General Assembly owners and owners of the general assembly is the premise of the decision was made in accordance with the "property law" seventy-sixth program.

3Do not apply to the prophase realty service contract, because the "property management regulations"The provisions of article twenty-sixth "preliminary property services contract can be agreed period; however, the term is not full, owners with property management companies signed the property services contract, termination of the prophase realty service contract" that is, through the industry to select a new property service enterprises and conclude a new contract of the property service contract is automatically terminated after the prophase realty service.

Property services to owners of Enterprises Committee property fees claims, the people's court shall inform the costs of the property owners in arrears shall claim rights.

This paragraph relates to the litigation subject qualification of the industry's problems.The essenceAndFormal partyTheory2.

Article ninth the realty service contract termination of the rights and obligations of the owners request, the realty service enterprise refund has been received in advance, but not provide property services costs of the property, the people's court shall support.

The realty service enterprise requests the employer payment of arrears of property charges, according to the sixth interpretation of provisions.

Article tenth the realty service contract termination of rights and obligations, the owners of the committee to request the realty service enterprise withdraw from the property services, property services area transfer of housing and related facilities, and related information required by property services and special repair fund the escrow, the people's court shall support.

The realty service enterprise has refused to quit, transfer, and exist in a de facto relationship property services for owners, request the obligation to pay the property services contract rights after the termination of the costs of the property, the people's court shall not support.

Article ninth, article tenth of the contract obligation is about standard. The two premise in the application of the contract after the termination of rights and obligations. Article ninth is Duotuishaobu property charges, tenth are related to data transfer. It should be noted that tenth return relevant information subject of claim right is the owners committee rather than the owners of personal.

Eleventh this interpretation relates to the realty service enterprise shall apply to the said, seventy-sixth, eighty-first, eighty-second of the property lawOther managers.

Article eleventh, article twelfth is about the interpretationScope of applicationThe provisions of this interpretation, which is suitable for:

1Property owners and users;

2Property service enterprises and other management.

There are other forms of managers:

The planned economy era -- the housing property units to management;

ForeignSelf management of the ownerSystem.

Article seventy-sixth the following matters jointly decided by the owners:

(a) formulating and modifying the rules of procedure of the assembly of the owners;

(two) develop and revise the stipulations on managing the building and affiliated facilities;

(three) the owners of the election committee or replacement of the owners committee members;

(four) the hiring and firing and the realty service enterprise orOther managers;

(five) to raise and use funds to repair the building and affiliated facilities thereof;

(six) reconstruction, reconstruction of the building and affiliated facilities thereof;

(seven) other important issues concerning the common ownership and the common management rights.

Determine the fifth and sixth matters, shall be subject to the exclusive part accounts for the total area of the building more than 2/3 of the total owners with more than 2/3 of the owners consent. Other matters as mentioned in the preceding paragraph shall be decided by the exclusive part, accounted for more than half of the total area of the building owner and half of the total owners consent.

Eighty-first owners to manage the building and affiliated facilities thereof, may also entrust the realty service enterprise orOther managersAdministration.

The realty service enterprise hired by the construction entity orOther managersIn accordance with the law, the owners have the right to change.

Eighty-second the realty service enterprise orOther managersAccording to the division of entrusted management building owners in the building and affiliated facilities thereof, and accept the supervision of the owners.

Article twelfth for property lessee, borrower or any other property used to implement the contract violation of property services, property services disputes and law, regulations or the management stipulation, the people's court shall refer to the interpretation of the provisions on the owners of treatment.

Article thirteenth the interpretation of self2009Years10Month1The date of promulgation.

The explanation which is final, after the implementation of these interpretations retrial petition or decide to retrial according to the procedure of judicial supervision cases, does not apply to this interpretation.

1The legal basis of contract to endow the parties of the right between the parties is trust, exclude the party reason terminate the contract at any time should consider the social and public interests and the interests of third people (vulnerable groups), such as: partner has the right to terminate the partnership agreement in advance of the partnership agreement prior to the expiry of the period; the employer shall not terminate the contract but can laborer to protect the interests of vulnerable groups and perform the labor contract.

2The essence is to enjoy the real capacity for civil rights people have the right of action; form the parties refers to does not have the capacity for civil rights of the parties to exercise their litigation rights.

(end)
Note: This article is reprinted from the oldHttp://blog.sina.com.cn/s/blog_4a73f2a90100dqmx.html, hereby acknowledge.

The prophase realty service contract

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The prophase realty service contractRefers to the property construction units and property service enterpriseProperty managementThe stage of both rights and obligations of the agreement, isThe realty service enterpriseBe authorized to carry out property management services basis.
"Property management regulations" stipulates that the twenty-first: "before the owners, owners hire property service enterprise,The construction unitSelectionThe realty service enterpriseThe, shall sign a written prophase realty service contract." The prophase realty service contract is not only related to theThe construction unitAndThe realty service enterprise, also involvesOwner.
In practice,PropertyTheSaleAnd the owners in a continuous process. This stage requires the 2/3 more of the voting rightsOwnerThe formation of the owners of the General Assembly decided to vote is not realistic, but this stage property management services is essential. Therefore, in order to avoid before owners hire property service enterpriseProperty managementVacuum, the clear responsibility of the main property management services, specificationProperty managementActivities, "property management regulations" clearly defined property management services by property services enterprises employ construction unit.

Signed

1 according to the development of real estate and property management principle of phase separation, while the unit through theBiddingThe realty service enterprise way of selecting qualified (management unit responsible for the property management).
2 prior to the owners of the committee to select the realty service enterprise management units, employing units sold, shall sign a written prophase realty service contract. The prophase realty service contract shall include the following contents:
(1) the service agreement of parties:
The real estate development unit;
Management unit entrusted by the real estate development;
The property (owners).
2.Property managementThe basic situation of the property.
(3) the rights and obligations of property management agreement between the two sides agreed:
The rights and obligations of the management unit;
The property (owners) rights and obligations.
(4) property management services agreement:
Maintenance and management of the housing sharing parts;
Maintenance and management of the housing and shared facilities equipment and its operation;
The environmental sanitation cleaning and maintenance;
The security management;
Management of traffic order and vehicle park;
The housing decoration decoration management.
(5) the quality of property management services agreement:
The building appearance;
The equipment operation;
Maintenance and management of the sharing parts, shared facilities equipment;
The environmental health;
Afforest;
The traffic order and vehicle park;
The security;
The fire;
The housing sharing parts, shared facilities equipment maintenance and repair.
(6) property management service charges:
The property management services standards;
The property management service charges payment time;
Adjustment of the property management service charges standard;
The other paid service fee standards and charge.
(7) the management and use of repair funds.
8.Housing insuranceThe relevant agreement.
(9) liability for breach of contract.
With 3 units sold in theCommodity residentialThe purchase were signedBusiness contractShould contain preliminary property services contract agreed to the content.
4 for the protection of the property management contract litigant's legitimate rights and interests, reduceProperty management disputesThe Ministry of construction, the model text - property management services agreement, the parties for property management according to the actual situation, select, determine the terms of service agreement.
Signed 5 property service enterprises and construction unitsThe property management contractLater, the owners prior to the establishment of the Commission, and shall sign the prophase realty service contract with the owners, clear rights and obligations of both parties, thus avoiding disputes. Once the owners property services contract signed early, that acceptance property management service enterprises, shall perform the payment as agreed in the contractProperty management feeOther obligations.
Convergence of the prophase realty service contract with the property services contract
Convergence property services contracts and property services contract, related to the normal use of the property owners can. If there is no arrangement good convergence may occur, the prophase realty service contract has expired, and theThe owners of the general assembly,The owners of the CommitteeNo selection of good property service enterprise, this may cause the lack of property services, and affect the normal use of the property owners. There may be the prophase realty service contract is not the end, but the owners select a new realty service enterprise, and theThe owners of the CommitteeSigned with the property services contract, then easily lead to two property service enterpriseConflict.
For the convergence problem solving the prophase realty service contract with the property services contract, "property management regulations" provisions of article twenty-sixth, the prophase realty service contract can be agreed period; however, the term is not full, signed the owners' committee and the realty service enterprise property services contract, termination of the prophase realty service contract. According to the practice of property management, property services contract terminated in three cases:
(a) the prophase realty service contract termination time expires, the property management of the deadline for the time of termination of the prophase realty service contract stipulated in the contract.
(two) the prophase realty service contract the contract period has not expired, the owners' committee shall select the realty service enterprise and property services contract signed, the property management of the deadline for the start time shall select the realty service enterprise property services contracts lock.
(three) the term of the contract the prophase realty service contract expires,The owners of the CommitteeHas not been established, or not hire any realty service enterprise, the original property services companies can no longer be managed, and can also beDevelopersContinue to sign the prophase realty service contract, to continue to carry on the management to the property. In the continue under deadline management, property management as a new property services contract comes into effect.

Edit this paragraphCharacteristic

[1]
According to the "property management regulations" of the prophase realty service contract is defined, the prophase realty service contract has the following characteristics:

The main contract is the construction unit and the realty service enterprise

Because in the early stages of property management,The owners of the general assemblyHas not been established, not by the owners of the General Assembly United owners to select the realty service enterprise, can only be borne by the construction unit selects the realty service enterpriseResponsibilityFrom a legal point of view, is permitted, the construction unit according to the relevant regulations of the state to buyLand use rights, has invested heavily in the construction, before the property is not selling, he is the first owner, has the right to exercise the right to choose the property service enterprise.

Transitional

"Property management regulations" stipulates the prophase realty service contract period, the transition period only exists in the prior owners, owners hire property service enterprise. During this period, property sales, occupancy is asymptotic behavior, can be fast or slow uncertainty, uncertainty brings the owners of the General Assembly convened for the first time in time, so the prophase realty service contract is usually uncertain. Once the owners, and selection of the realty service enterprise, property management service ended, the prophase realty service contract is terminated, the prophase realty service contract is a transitional contract.

To a contract

Because of the prophase realty service contract involves the future interests of owners, in order to prevent the construction units occupied or do not understand the future owners of interests demand, the Ministry of construction in September 6, 2004 in the previous property management contract model text basis, re enacted, promulgated "the former property services contracts (model version)", chosen for the property services enterprises construction units selected when.

Edit this paragraphContent

The contractIs the content of the terms of the contract, the contract is specific provisions on the rights and obligations of the parties. Through is the property services contractsThe terms of the contractBetween the construction unit and the realty service enterprise reflects the relationship between rights and obligations, include the following main parts.

The parties to a contract

Property services contract is the construction unit and the realty service enterprise, the construction units and property service enterprises are generally legal organization.

The basic property

The basic situation of the properties including the property name, property type, location,Built-up areaOther aspects.

The service content and quality

Services include: property sharing parts and shared facilities equipment operation, repair, maintenance and management; property sharing parts and related site environmental management; car park management; assist in the management of the maintenance of public order, safety and prevention; property decoration decoration management services; property management and the two sides agreed to other management service content.

Service fee

Services include: property management service charges, fees stipulated (standardContractOr Choujinzhi property services costs); expenditure; property services fees; conditions Choujinzhi, published and controversial provision mode, service fee revenue and expenses of the treatment.

Operation and management of property

Including the operation and management of property: parking and club charges,Management styleThe property, income distribution; other common parts of the equipment management, operation and management.

Undertake check and maintenance

To undertake the inspection and maintenance of the main content includes the execution of obligations, both sides agreed.

Special repair fund

Special repair fundThe main contents of this part of the funds deposited, use, continued funding and management.

Liability for breach of contract

This part mainly includeLiability for breach of contractConventions and processing,Exemption clauseAgreement etc..

Other matters

Other issues include the contract performance period, the entry into force of the contract conditions, contract disputes, property management property, related data ownership and other matters deemed necessary by the parties.

Edit this paragraphMatters needing attention

Property to undertake inspection

To undertake the acceptance of property sharing parts, shared facilities equipment is an important part of property services, property services contracts should be on the property sharing parts, shared facilities and equipment to undertake the acceptance standard, responsibility, make clear agreement. And to undertake acceptance owners own property proprietary parts are between the owners and developers of the problem, need not be specified in the contract.

The cost of service

The prophase realty service contract cost involved variety, the complexity of the situation, pay the subject of liability and the easily confused, is easy to cause the contradiction, must be specified in the contract. For example, shall be paid by the construction unitCostCan not be passed on to the owners; the fees paid by the owner of the part, you should pay attention to whether it meets the requirements of national laws and regulations, and shall be stated or agreed in the property before the sale.

The dissolution or termination of the realty service contract

By the owner occupancy status affect the performance and quality of housing projects of various factors such as the prophase realty service contract, the contract period hasUncertaintyWhen such factors, resulting in the prophase realty service contract cannot be fully performed, the realty service enterprise may rescind the contract or claim for compensation in advance by way ofRisk aversion. Therefore, it is necessary to make on the cancellation of the contract conditions in the prophase realty service contract clearly agreed.