Dislocation and the dislocation of property management companies are

 Dislocation and the dislocation of property management companies by the mm on the relationship between property management and adjacent Sichuan
Sen Wang Zhao Shaoshun
Law Office lawyers about the scope of management of property management companies, with the September 1, 2003 onwards Property Management Regulations What are the management companies, such as the relationship between the owners have on the adjacent infringement issue, which is the property management company should not control, but also control the bad.
Case 1, a city housing Kangxi Road III Department of a technology company to buy office space, the room with the plaintiff of a property management company managing the adjacent residential building in March .2002, a technology company without planning permission in the case, and residential housing adjacent to the back of the green on the construction of the illegal buildings used as kitchens, a large number of exhaust gas emissions, waste water and noise pollution in the residential environment, affected the normal life of residential tenants, residential property management company repeatedly asked the owners to come forward with a technology company co-ordination, and to stop its infringement behavior. a property management company and a technology company repeatedly negotiation, residential property owners in the grounds of poor coordination of property management companies refused to pay property management fees. no alternative but to property management companies to the plaintiff's identity will dock onto a technology company, and claimed that: starting from March 2002 have accused the management of our homes built on green space adjacent kitchen, toilets and staff quarters, and set the chimney, digging sewage ditches, discharge fumes, gas, waste water and noise Therefore, the defendant eliminate the obstruction and removal of illegal buildings.
facts of this case is not complicated, but relate to the neighboring right relations and property management of these two concepts, both because of the connotation and extension of two concepts in law are not directly contact, but in property management and often linked the two, so that property management companies to manage should not control, to discipline, manage well the relationship between the owners based on disputes arising from the adjacent. property management company was dislocation and the dislocation was the main part of the vast number of owners and property management business in the adjacent property and what is the relationship between the two concepts of property management can not accurately grasp and understand.
an adjacent relationship Overview
( a) The concept and characteristics of neighboring relations neighbor
the so-called relationship is between two or more adjacent property owner or possessor, the use of the exercise of real property in the possession, use, income and disposition, the mutual shall give or accept restrictions to facilitate the rights and obligations incurred. adjacencies as a legal right, although some of the attributes of property rights, but property rights and ownership compared to other independent, has its own legal characteristics:
1, adjacent relationship is based on all different subjects or use of property adjacent to each other produce.
neighboring relationship is a legal requirement rather than a direct agreement between the parties, while the law provided that all the different subjects or use of property must be adjacent to each other, neither between the parties agree to establish adjacencies, not to agree to exclude the adjacent relationship, as long as the property adjacent to each other will inevitably produce a contiguous relationship between the subjects.
2, phase neighborhood relations can only occur in two or between two or more subjects of rights.
two or more real estate to be subject, respectively, all belonging to two or more adjacent or relations to take place, is the subject of property rights A relationship between rights and obligations. where the subject may be either legal persons or other organizations, can also be a natural person; can be the owner of real property, it may be right to use real people.
3, adjacent to the content of the relationship between is adjacent to the rights and obligations between subjects.
under the law, property owner or user should be given the right to exercise the rights of adjacent property or right to use all the necessary facilities to exercise their rights of people. Thus, on one side to said to each other by providing the necessary facilities to make their rights in the restricted, for the other party is, because the law has made the necessary facilities, then make their own rights have been extended, therefore, to consider the deal between the adjacent Therefore, the right to limit damages suffered, namely the right to extend the right to limit party shall compensate for losses caused by the restriction. In addition, the right to extend this compensation to be extended from the right side, the establishment of a legal basis, or If the illegal extension of the adjacent side to the other party caused by their infringement of rights, not only to stop abuse, but also compensation for other losses. Of course, the contents of the adjacent complex relationship, rights and obligations between the different types is not the same , shown by the party in the exercise of the right to request the other party to give convenient, one in the exercise of rights, shall not prejudice the interests of the adjacent other party. such as adjacent to the parties in the exercise of the right of property ownership or use shall not create noise, noxious odors, dust and other loss the physical health of the other party.
4, adjacent to the adjacent property relations is not the object itself, but the property owner or user of real property ownership and use in the exercise of the right of the other party to facilitate the mutual benefits arising.
of Academic The object of the neighboring community relations have a different understanding: One view is that the relationship between adjacent objects is reflected in the exercise of rights in real estate interests; a view that is real property adjacent to the object relationship itself; one view, neighboring relations of the object is adjacent to the behavior implemented by the parties, but Stone said that the relationship between adjacent objects is reflected in the exercise of real property interests, the paper hold this view. The interests of both property interests, but they non-property interests, such as the relationship of the object is adjacent to environmentally friendly comfortable environment to enjoy the benefits. But no matter what kind of interests are the owner of real property or right to use the results of the exercise of the rights of the adjacent tie between the parties should be given each other to facilitate exercise of their rights.
(a) of the building adjacent to the building adjacent
relationship between adjacent buildings is the phase between the owner or user, owner or user of a party exercise and use of the adjacent side shall enjoy all the legitimate rights conflict, in order to coordinate their conflict, but by law the rights and obligations.
1, the adjacent building ventilation, access and lighting relationships
Buildings should maintain a proper distance with adjacent buildings and appropriate to limit their height, can not prevent the adjacent building ventilation, lighting, sunlight, traffic, drainage and so on. or adjacent to the building owner or user of the right to request eliminate the obstruction and damages.
2, shared by the adjacent wall of the building, adjacent open space occurred between the party wall
adjacent buildings, such as when you can not prove that all belong to one party, presumed to be owned by both parties if by a total of deal with the relationship between the neighboring rights and obligations of the parties. adjacent to one use, without prejudice to his Fangli Yi. the space between adjacent buildings, its owner or user rights are unclear, and should be adjacent to all parties shared use, and any other party or parties without the owners consent, be allowed to occupy, or may request restitution, compensation for the losses.
3, condominium ownership relationship between the neighboring condominium
relationship between all the adjacent, compared with adjacent normal relationship between the building owner has its own characteristics, adjacent to the existing relationship between the proprietary and the exclusive right of people and there are some there between the neighboring relations. distinction between ownership and exclusive use of its people and must use some other distinguishing adjacent part of the exclusive ownership, the owner of the adjacent other distinguishing not refuse without good reason.
4, adjacent environmental relations
condominium owners in daily life should comply with environmental laws and may not feature excessive emissions of waste water, oil, soot, etc., the other owner has the right to distinguish between prohibited by law the exclusive right of people of all the adjacent violations.
a) dealing with the principle of adjacency relations in the adjacent
is ubiquitous in real life, real estate, real property adjacent to the use of the parties to the dispute, although the process is normal, but the handling not only affects the effective use of the property, will aggravate contradictions and affect social stability. so correctly handle the relations between neighbors, even to resolve disputes between neighbors, is of great practical significance. correctly handle the relations between neighbors should follow the following principles: < br> i. favorable production and convenient living adjacent to the principles of the relationship between
purpose of the law, because the neighboring relations and the civil subject's production and daily life, so beneficial to production, convenient living is fundamental to correctly handle the relations between neighboring guiding principles
ii.
principle of solidarity as the saying goes: a distant relative as close neighbors, and give people easy to have convenience, to play the spirit of social solidarity is a prerequisite to establish good neighborly relations. the parties in dealing with the adjacent property relations, should be mutually convenient to give, and not against the other party caused by illegal.
iii.
fair and reasonable principles of civil law the essence of a fair and reasonable. the one hand, the principle of fair and reasonable requirements of the parties in dealing with the adjacent property neighbor relations, the extension and the other party the right to limit the rights of all must be reasonable. On the other hand, the principle of fair and reasonable requirements of the people's court cases dealing with neighboring relations, to find out the facts, distinguish right from wrong based on the , according to a reasonable resolution of disputes and resolve contradictions.
iv. to respect the principle of
habits and habits are repeated in the social life and the people recognized by a rule of life, therefore, on the history of the formation of water, drainage , traffic and other neighboring relations, the other party agreed to the adjacent side are not allowed without the change.
b) the legislation on the neighboring relations
shall be beneficial to production, convenient living, solidarity, the spirit of fair and reasonable and correct matters as water, drainage, access, ventilation, lighting and other aspects of the adjacent relationship. rights shall, in accordance favorable production and convenient living, solidarity, fair and reasonable principles neighbor relations, law does not clearly defined, in accordance with local custom neighboring relations between the requirements accordingly.
In summary, the adjacent property adjacent to the main relationship is between the rights and obligations, property management companies is certainly not the owners adjacent to the main dispute relations, while due to the adjacent property owners dispute arising between, nor is the management of the scope of property management companies.
5 range of property management enterprise management
(a)
in the In theory, property management but also the trend of generalization, some scholars put forward the ; together with the media propaganda to mislead, many owners always thought, since I paid a property management service fees, then place everything in the district, including the owners and the owners or between owners and other things that should be the main property management companies to manage. such as the relationship created by the adjacent infringement.
conceptual issues of property management, property management services related to the purpose of the issue. from property property property point of view, after a person has is the purchase of housing The housing property rights, housing is a real, tangible property, because of its non-mobile features and the use of longer periods of time, rights of property owners have to do the normal function and proper use of economy while The property maintenance, conservation and management, property and increase the value, so the perspective of their property, property management objective is to ensure property (property), the normal functions and should have to pay the economic value of labor. Therefore, the purpose of property management is The main purpose is not the owner, owners purchase consumer demand is not limited to housing, but on top of an extension of the residential function of the human services needs. and this is only human demand for services greatly exceeds the value of the property itself has properties. So, from this perspective Look, property management is not only a need to be extremely diverse and endless. People living environment comfortable, clean, convenient, and spiritual comfort are all generated based on the property requirements of humanity. These properties extend out from the human needs, to property management companies to bear, it will make the property management business into the management, and on the Management Ordinance, maintenance, conservation, management and maintenance of environmental health within the regions and the order of activities. the common parts of the property and publicly owned facilities and equipment. but also implies a limited service on the people, embodied in the , of course, not clear that the Commission and to the owners of property services property management companies in the freedom of contract to contract. Since it is a contract, the principle of autonomy under the contract, whether residential property owners to provide personalized service, or how to provide human services is not the legal obligation of property management companies, but by the freedom of the two sides negotiated in the contract.
(c) of the property service contract
property management services contract in short, owners of the Committee's decision according to owners , and the hiring of property management companies property management company, signed by the district for the implementation of a management agreement.
issued this year, according to the Ministry of Construction, region B (the property management company) to provide property management services to early stage include the following: 1, the property shared part of the maintenance, conservation and management; 2, the property shared facilities and equipment operation, maintenance, conservation and management; 3, property common parts and related venues clean of garbage collection, removal and storm sewers clear; 4, public green in the conservation and management; 5, vehicle parking management; 6, public order maintenance, security and other matters to help manage ; 7, decoration, renovation management services; 8, property file management. requirements, the service contract or the contents of the property owners or between owners and other rights between subjects, based on disputes arising between adjacent, property management companies should not the scope of management. unless otherwise authorized agent.
Third, on the civil law, the agency involved
Can owners of property management companies or owners and the other between the main body between the neighboring relations arising due to disputes? answer is yes. but there must be an authorized agent. < br> behavior, bear civil liability. relations due to disputes arising from the adjacent, can be entrusted to the property management business on behalf of its representations to the relevant infringer, the form of a written commission can be oral, if the proceedings on behalf of the commission shall be in writing. This commission can be paid can also be free of. in accordance with the provisions of this section, although the owners of property management companies dealing with disputes arising between neighbors, if mutual agreement can not charge agency fees, but handling the commissioned firm necessary expenses advanced by the owner or owners of the Committee is to be paid .
this case, the owners of that property management companies incompetence, not to have to stop or eliminate the infringement of a technology company, and refused to pay property management fees, it is the owners of property management companies dislocation. before the paper also discusses the property relationship management business is not adjacent to one of the main, in terms of the scope of management of property management companies, or the content of the contract property services, property management companies to deal with owners in disputes arising between neighbors and not shirk this responsibility. Therefore, the owners of the property management Enterprise poor coordination, negotiations failed, violations have not been excluded Er halt and refused to pay property management fees, are neither legitimate nor sensible, more reasonable. real examples of this common, such as the impact of playing mahjong downstairs upstairs to rest, noisy dogs next door neighbor of the peace, etc., as the property management company did not go without the tube or pipe a good pipe, but also the owners refused to pay property management fees for many reasons. Conversely, some property management companies also stand on their own dislocation. If the case , the property management companies in order to stop and remove the infringement of a technology company, filed as a result of the plaintiff arising between adjacent tort litigation is inappropriate. because the property management business is residential property owners to accept the commission, the district implementation of property management, property management companies that only disputes between neighboring property only has administrative rights, and this management is achieved through the delegation of authority, so the relationship between property management companies are not adjacent to the main body, which does not qualify as plaintiffs infringement of civil proceedings. but only as an agent to participate in litigation proceedings, the real owners of the plaintiff only is the plot. This in the adjacent relations, property management companies are often misplaced and dislocation, both for historical reasons, but also practical reasons. because the welfare of our country have implemented housing distribution system for residential users at the time (now owners) both big and small, are looking for government or units of settlement, the Government or the unit has basically pulled out of the housing maintenance management is usually replaced by the property management business, habits, ideas, updates can not be solved overnight. In addition, business owners and property management of legal knowledge, especially with the property management business-related legal knowledge to be improved, If the owner or property management companies are very aware of their responsibilities, rights and interests, then, although not completely eliminate such disputes, but at least not like there are so widespread.
Case 2, the owners are disputes in the property management companies to the sun Mr. Wang, who lives in the case of the owners
the first floor, in front of the tree about three stories tall, leafy, covered the sun, dry clothes to inconvenience his family, and even have to turn on the lights at home at noon. Wang that these trees deprived of his family the right to enjoy the sunshine and light, repeatedly asked the property management company find a way. property management company that the tree can not move, unless the relevant license, but they can be pruned trees. But Mr. Wang that the pruning is not the answer, so 一纸诉状将 property management company sued to the court.
case the owners of Mr. Wang's home to residential lighting the trees sued the property management company, require property management companies eliminate the obstruction to its sun rights is the wrong object report, because the property management company can not, as defendants in the case. First, the district of Wang family tree lighting, which is adjacent relationship between the rights and obligations arising. property management companies on the district's trees does not have ownership, so the property management company and the owners do not have a neighboring relationship between Mr. Wang, not as the case the defendant; Secondly, property management companies only to the maintenance of trees on residential, management, to grow, to green area, landscaping obligations, rather than with the rights of the community to eradicate the trees. Wang home owners affected by light, is caused by the natural growth of trees, and property management companies unrelated to management activities.
In addition, under the 83 provisions, property owner or user of the exercise of rights, should be given to adjacent property of the owner or user of the necessary facilities to exercise their rights. This is on one side, for providing necessary facilities to each other to make their own restrictions on the right; on the other, the result of lawfully obtained the necessary facilities, the extension of the rights of their own.
specific to this case, the owner Mr. Wang is the owner of house property, and trees and residential district closely linked to land, constitute an integral part of residential real property. usually residential area in matching green trees are part of their property rights should belong to all owners within the district total. Wang is now the home of the owners of adjacent trees to form based on property arising from the adjacent neighboring relations. the district a total of all the owners of residential trees is, therefore, the case should be adjacent to the main owners of the relationship between Wang and the community all the owners. So Mr. Wang should claim the rights to all property owners to all the owners as the defendant.
according to the characteristics of neighboring relations, is an extension of the right and the other party the right to limit, in this case, the plaintiff is an extension of the right side, the right to limit the defendant should be square; the plaintiff's right was extended to limit the lighting plant defense height of trees to be felled even the defendant's right to limit their planted trees shall not exceed the height or lighting of the plaintiff to be cut down. Meanwhile, the deal between neighboring therefore to consider the right to limit damages suffered, namely the right to extend Party shall limit the right to compensation for losses caused by the restriction. Therefore, if the plaintiff established the defendant to cut down the trees, the plaintiff should be given appropriate compensation. to purchase the plaintiff lived, this is survival, life a necessary condition; lighting effects on the housing is directly related to human health, human protection than the protection of more important things. Therefore, as long as the standard does affect the lighting by lighting, lighting of the plaintiff's claims on housing to should be supported.
Case 3, the owner disputes
additional advertising a residential area, west of planning to build a shopping center, near a residential building in the mall the first floor of three owners in the acquisition of housing reached with the developer verbal agreement to do the west side of housing wall demolition stores use and renovation of three billboards. Before long, the second floor residents found that the top floor, filled with billboards, garbage left behind upstairs, and great noise, rain . because the billboard on the second floor tenants under the window, therefore, on the second floor tenants will require property management companies removed. for many property management companies and co-ordination on the first floor there was no consensus, on the second floor tenants that the property management company not entirely to duty, then refused to pay the property management fees. In fact, the case still involves the adjacent relationship. on the first floor, second floor, the owners of the billboard above the rest part of the owners, and affect vision, smell, owners can request the first floor, second floor owners to stop the infringement, eliminate prejudice. At this point some of the affected property owners should harm the first floor of three square owners request removal of obstacles should not be made to the property management company, but can not be used refused to pay the property management fees .