He sealed his balcony as a defendant and lost the first instance.
In February this year, a notice issued by the residential property of Chengdu Greentown Chengyuan Phase 1 caused heated discussions on the Internet.
The property won a lawsuit against the owner of a balcony in the community, when the owner was ordered by the court of first instance to demolish it within a time limit.
The case of being prosecuted by the property for closing the balcony is relatively rare in the country. Behind the controversy, is the closing of the balcony a personal matter?
On August 19, the reporter learned from the defendant, the owner, Mr. Gao, that on August 12, the Chengdu Intermediate People's Court pronounced the second-instance judgment: the first-instance judgment was revoked and the property company's claim was dismissed.
It is understood that the judgment is final, which also means that the owners of the community can seal their balconies.
case review
The owner was sued by the property for sealing his balcony
The first trial owner lost
The first phase of Greentown Chengyuan is located in the Yixin Lake section of Shuangliu District, and will be delivered by the end of 2020.
After the house was handed over, more than ten owners successively sealed their balconies.
It is understood that since the houses 1 to 4 in the community are facing the street, the developers have uniformly sealed the balconies when they handed over the houses, while other buildings have open balconies.
In November 2021, the community property brought the first owner of the community to seal the balcony, Mr. Gao, to court, asking him to immediately remove the closed balcony and restore it to its original state.
The property believes that, according to the "Temporary Management Agreement of Chengyuan Community" signed by the owner when purchasing the house, the owner shall not close the balcony in principle during the use of the property.
If the balcony needs to be closed, it needs to be voted by all the owners, and the area and the number of households need to reach "two 2/3" (the exclusive part accounts for 2/3 of the total area of the relevant building, and the owner accounts for 2/3 of the total number of people) or the consent of the owner. , and implemented according to a unified plan.
After the owners voted, the result did not meet the requirements.
Therefore, Mr. Gao's act of closing the balcony by himself violated the principle of good faith.
In the first instance, the People's Court of Shuangliu District, Chengdu supported the claim of the community property, believing that Mr. Gao's behavior obstructed the service and management of the property, and violated the "Statute", and ruled that Mr. Gao should demolish the violation within 15 days after the judgment came into effect. Enclosed balcony and restored.
In this regard, Mr. Gao expressed dissatisfaction. He believes that the balcony is not a public area, but his own exclusive area.
An appeal was subsequently filed.
The owners in the community who disagreed with the closure of the balcony believed that the closure of the balcony not only affected the appearance of the outer facade of the community, but also affected the value of the community, so they firmly disagreed.
Owner's Appeal
Court of Second Instance:
As a property service provider, the property has no right to decide whether to demolish or not
On August 19, the reporter learned from Mr. Gao that the second-instance judgment of the case was pronounced on August 12, and the first-instance judgment was revoked, and the property company's claim was dismissed.
The court of second instance held that the focus of the dispute in this case was whether the claims of Greentown Property Company could be supported in accordance with the provisions of the Provisional Management Regulations of Chengyuan Community.
The Chengdu Intermediate People's Court held that the "Civil Code" clearly states that the owner has the right to possess, use, benefit from and dispose of the exclusive part of the building.
The owner's exercise of rights shall not endanger the safety of the building, nor damage the legitimate rights and interests of other owners.
In this case, the balcony of the house, as a specific part of the main body of the house, is independent in structure and use, and belongs to the exclusive part of the house.
Mr. Gao's closed balconies are enclosed within the balcony, and the style and color of Buildings 1 to 4 of the community that have closed balconies before handover by the developer are consistent with the style and color. Compared with the previous open balconies, it has a better protective effect on personal safety. Also more soundproof and more comfortable.
Taking a step back, if Mr. Gao closed the balcony beyond the balcony and the outer wall, it constituted an illegal construction. According to the relevant regulations, only the relevant administrative organs have the right to decide whether to demolish it.
In this case, the property management company and Mr. Gao are in a property service relationship. As a property service provider, the property management company requires the owner it serves to immediately remove the closed balcony and restore it to its original state, which is not clearly stipulated in the law.
Moreover, the property did not provide evidence to prove that the closed balcony endangered the safety of the building and harmed the legitimate rights and interests of other owners, nor did it provide evidence to prove that Mr. Gao committed acts that hindered the service and management of the property.
Court decision
Revocation of the first-instance judgment
Community owners can seal off balconies
In addition, the balconies of Buildings 1 to 4 in the community have been closed before handover, which means that whether the developer seals the balcony before handover, or the owner seals the balcony after handover, there are precedents in the community, and it is not absolutely prohibited. In real life, the vast majority of high-rise buildings in Chengdu are not strictly prohibited from closing balconies by owners in terms of safety, living comfort and privacy protection, but the style and color of closed balconies in the entire community. make uniform requirements.
Before a consensus has been reached in the whole community, Mr. Gao closed his own balcony in accordance with the style and color of the building that had previously closed the balcony, which neither endangered the safety of the building nor harmed the legitimate rights and interests of other owners, nor implemented any obstruction. Therefore, the court of second instance held that the judgment of the court of first instance requiring Mr. Gao to remove the closed balcony of his house and restore it to its original state has no factual and legal basis and should be corrected.
In the end, the court of second instance ruled that Mr. Gao's appeal was established, and while revoking the first-instance judgment, it also dismissed the lawsuit of Greentown Property Company.
It is understood that the verdict is final.
On August 19, Mr. Gao was very happy after getting the second-instance verdict.
However, some owners of the community are very dissatisfied, thinking that according to the "Temporary Management Statute of the Community", the owners and developers of Feng Balcony have breached the contract, and they will reserve the right to sue the owners and developers of Feng Balcony, "to demand compensation for the loss of the community's price drop."
News link
It's not a case of going to court because of the balcony closure
Owners win or lose
The Greentown Community is not an isolated case. The reporter learned that the Beijing court had rejected the Beijing Dacheng Property Management Company's request to order the 12 owners to remove the closed balcony and restore it to its original state.
The court held that in view of the uniform materials and styles used by the 12 defendants to close their balconies and did not affect the overall aesthetics, city appearance and other public interests of the community, it did not support the property's claim.
But not all the owners' demands to seal the balcony can be supported by the court.
Chengdu Yanlord Binhewan Community has a similar precedent.
In the "Temporary Management Agreement" signed by the property and the owner before, they had agreed that the owner should not seal the balcony without authorization, and the balcony must be voted by all the owners.
Since 2015, the case has lasted 5 years and has undergone 3 judgments. In the end, the Sichuan High Court determined that the owner lost the case.
The Sichuan Higher People's Court held that the clause in the Statute that "the balcony shall not be closed without authorization" is binding on the owner.
"Restricting the owner to close the balcony is to require the owner to legally exercise his rights within the scope of the law... It is not a restriction on the owner's property rights, and (restricting the owner to close the balcony) is conducive to maintaining the beautiful environment of the community and the overall interests of all owners of the community."
In 2019, Mr. Wang, the owner of Hangzhou, also lost the lawsuit.
The reason is that he ignored the property's dissuasion when he was renovating the house, sealed his balcony, the property was hanging ropes from the top floor, and the balcony was forcibly removed. After that, Mr. Wang took the property to court.
The Hangzhou Intermediate People's Court rejected Mr. Wang's petition.
Because Mr. Wang signed the "management agreement" when he bought the house, it stipulated that "the balcony shall not be sealed", "this commitment and the "pre-property service agreement" signed with the property company are all expressions of the true intentions of both parties, and the content does not violate the It is a mandatory provision of national laws and administrative regulations, so it is legal and effective.”
At the legal level, with regard to the Property Management Service Contract and the Owners' Convention signed by the owner and the property, some legal professionals believe that these contracts have no legal effect because they are unequal and unreasonable invalid contracts that have not been negotiated by both parties. .
However, from the actual precedent, the court also recognized the contract signed by the owner and not in violation of laws and regulations as legal and valid.
Legal experts suggest that if the owners have questions about the "Interim Owners' Convention", the owners' meeting can propose amendments or re-enact a new convention after the owners' meeting is established.
Chengdu Business Daily-Red Star News reporter Zhang Ling