● Under various dissatisfaction, many residents proposed to change the property service company.
However, changing properties is not easy.
Not only are some netizens complaining on social platforms that it is "difficult to change properties", but cases of disputes arising from property replacement are also frequently reported in the newspapers.
● In reality, there are three main reasons for the difficulty of property replacement: the participation of the owner is not high, and the stipulated voting conditions cannot be initiated or completed; Property service contract; the original property company involved a large number of historical issues that have not yet been resolved, and the new property company is difficult to balance funds, taking over means loss, resulting in low enthusiasm
● Relevant government departments should increase the filing process and supervision on the qualifications of property service companies, formulate clear and explicit standards for property management activities, and reduce the behavior of property service companies "taking advantage of loopholes".
Explore the establishment of a convenient complaint channel for owners similar to the property company qualification inquiry platform, so that the property service company can be subject to comprehensive and multi-subject supervision
□ Sun Tianjiao, a trainee reporter of this newspaper
□ Our reporter Chen Lei
"The garbage is everywhere, and the smell is very unpleasant in summer; the traffic flow in the community is not controlled, and the safety of residents is difficult to guarantee; the hardware facilities such as elevators are broken at every turn, which greatly affects daily life..."
At about 10 o'clock on October 22, a reporter from the "Rules of Law Daily" came to a community in Chaoyang District, Beijing, and met Fan Zhen (pseudonym), a resident of the community.
Fan Zhen, who is nearly seventy years old, is a resident of the 7th floor of the ninth unit of the community. He is quite excited when he talks about the various properties of the community.
She told reporters that people have been dissatisfied with property services for many years, and they have thought about changing property service companies more than once, but they all ended in failure.
"Why is it so difficult to change a property?" Fan Zhen couldn't help but sigh.
There are not a few people who have the same troubles as Fan Zhen.
Not only are some netizens frequently complaining about "difficulty in changing properties" on social platforms, but cases of disputes arising from property replacement are also frequently reported in the newspapers.
A number of interviewed experts believe that although there are relatively standardized handling procedures for property replacement at present, obstacles may be encountered in all aspects of the handling process, and even if the property change procedure is completed, various variables may still arise when the original property company exits the community.
These comprehensive factors make it difficult to replace properties. In order to improve this situation, it is necessary to improve legislation, strengthen supervision, and enhance the ability of owners to organize.
Property unemployed owner dissatisfied
Want to change everywhere is limited
"It's this elevator. It goes on strike at every turn. No one cares about it, or repairs it casually. You see, it's broken again in the past two days. People on high floors can only climb the stairs, which affects their daily life." Fan Zhen took the reporter with him. To the front of the building where he lived, he pointed to an elevator inside and said.
The reporter noticed that the elevator button display screen was black and was in a deactivated state.
According to Fan Zhen, the elevator not only strikes from time to time, but also the interior of the elevator is dilapidated, and cracks can even be seen on the top of the elevator car.
The residents and the property service company negotiated many times about the replacement and maintenance of the elevator, but the property was perfunctory every time.
In addition to elevators, residents of this community are dissatisfied with property services in many aspects.
There are garbage placement sites in front of many unit buildings in the community. The reporter saw at the scene that these placement sites are not only full of garbage, but also sprinkled with various impurities and liquids on the ground, exuding a pungent odor.
What makes the residents of the community more complaining is that there are many supermarkets and restaurants in the community, but the community has no access control, and foreign vehicles and personnel can enter and leave at will, increasing security risks.
Under all kinds of dissatisfaction, many residents proposed to change the property service company.
However, changing properties is not an easy task.
Fan Zhen’s community established a property committee a few years ago. In 2021, the property committee proposed to replace the property service company at the request of the residents. However, the community is an old community, and most of the owners are elderly, and some owners are not there Living in the community makes it difficult for people to gather together, which makes it impossible for the owners' meeting to be successfully organized, not to mention the further voting procedures to replace the property.
The reporter searched on multiple social platforms with keywords such as "property change", "property replacement" and "difficulty in changing property", and found that a large number of netizens complained about the poor property service in the community where it is located, and it is difficult to change the property company.
Netizen "Shuxi" posted: "Because our community is dissatisfied with the property service, last year we worked hard to set up a property committee to start the process of changing properties. However, 9 months have passed, and there is still no progress. The property committee has made no progress. As soon as it was established, it was divided internally, and the volunteers also had their own ideas. Many owners were not very motivated to participate, and the decision-making was much more difficult than imagined.”
According to the interviewed experts, according to relevant laws and regulations in my country, community residents have the right to change the property service company.
At present, my country's regulations on the property replacement process should refer to the voting regulations on common matters of owners in the Civil Code and property management regulations.
Yang Qinfa, director of the Institute of Real Estate Policy and Law at East China University of Political Science and Law, told reporters that usually, if a community needs to replace the property, an owner's committee must be established first.
The establishment of an owner's committee requires the consent of the street and the community, and an owner's meeting is held.
After that, the property committee shall propose to hold a general meeting of owners to vote on dismissing the property service company and select a new property. The property committee shall promptly notify the original property service company in writing after making a resolution and request it to transfer relevant property management materials.
When voting, the owners with more than two-thirds of the area of the exclusive part and the owners with more than two-thirds of the number of people should participate in the voting; owners agree.
The owner organization signs the property service contract with the newly hired property service company, and finally the newly hired property service company and the original property service company are handed over.
In practice, when the community actually operates the property replacement process, it may be restricted everywhere.
Meng Lina, senior partner of Beijing Kangda Law Firm, said that there are three main reasons for the difficulty of property replacement in reality: the participation of owners is not high, some communities have not established owners' committees, and they cannot effectively organize owners' meetings, or some owners are unwilling to replace The property management company takes a wait-and-see attitude or ignores it, does not actively participate, and cannot initiate or complete the stipulated voting conditions; the original property management company refuses to leave the venue, which is based on the consideration of various interest factors, such as the owner's arrears in paying the property fee and the objection to the owner's joint decision, etc. Refusing to go through the handover procedures with the new property company, preventing the new property company from entering the site for services, resulting in the new property company no longer agreeing to perform the property service contract due to being unable to enter the site for a long time; the original property company involved a large number of historical issues that have not yet been resolved, and the new property company It is difficult for the company to balance the funds, and the takeover means a loss, resulting in low enthusiasm.
Poor handover of old and new properties
Disputes occur from time to time
On the issue of replacing the property, it may be more difficult than the owner's agreement, which may be the handover of the old and new properties.
Due to dissatisfaction with the property services, residents of a community in Xi'an City, Shaanxi Province established an industry committee in August 2018. In order to replace the property company, in September 2020, the community industry committee hired a lawyer to guide the convening of the owners' meeting to meet legal requirements. The proportion of the owners voting, passed the resolution of dismissal from the original property company.
After that, through bidding, a new property company was publicly selected and a service contract was signed with the new property on January 4, 2021.
However, from January 2021 to March 2022, the original property company refused to withdraw, and it was difficult for the new property company to enter.
During this period, some owners sued the property committee because they disagreed, and the original property did not cooperate with the property and threatened the property committee and the owner by leaving the site, which increasingly hindered the smooth handover between the old and new property companies.
It has been dragging on for more than a year, and after various coordination, the original property company withdrew, and then the new property officially settled in the community.
In fact, conflicts and disputes between residents, the original property company, and the new property company have occurred frequently in recent years due to property replacement. From time to time, the original property company refuses to leave the venue after the community democratically decides to elect a new property company.
The reporter searched the China Judgment Documents Online with the keyword "replacement of property", and obtained a total of 2,706 search results.
According to statistics, 743 of these cases involve "handover" issues.
Judging from the circumstances of the case, the main reason for the original property company's refusal to hand over was the issue of expenses, including the payment of property fees and the maintenance costs of community facilities.
Bao Hua, executive director of Beijing Real Estate Law Society and partner of Hairun Tianrui Law Firm, analyzed that the above problems occurred because the handover of new and old property companies lacked clear process specification support, and the rights and obligations of both parties could not be obtained through the process. Guarantee, including the property service fee collection before the exit of the original property service company, is quite difficult.
Yang Qinfa said that if the new property service company forcibly takes over, it may have a direct conflict with the original property service company, which is not conducive to resolving disputes between the owner and the original property service company.
Recently, a deadlock has occurred in the handover of new and old properties in Caihong Mingjia Community, Jianhu Street, Keqiao District, Shaoxing City, Zhejiang Province.
According to public reports, the original property service company contract in the community expired on September 30 this year.
After the expiration, the industry committee voted to elect a new property service company and arranged for the handover between the two parties.
However, during the handover process, the property management committee proposed that the original property company should solve the remaining problems such as fire protection equipment, basement fans, and greening replanting, which was rejected by the original property company. The new property company also did not let go of these remaining issues. The new property company has not been able to enter the venue as scheduled.
Yang Qinfa believes that there are many reasons for the difficulty in handing over the old and new property companies, and these problems basically come from the original property company.
The original property company mostly refused to leave the community on the grounds that the owner did not pay the property fee, the resolution of the owners' meeting was invalid, and there were objections to its resolution.
In the process of the original property company's withdrawal from the community, there may still be problems such as refusal to hand over the materials required for property services, refusal to handle handover, and difficulty in handing over the relevant property service facilities in the community.
It may also involve that some owners who are renovating have leftover problems that need to be solved and some developers have leftover problems that need to be solved.
The reporter learned that in the current stage of property service contract disputes, the main channels to resolve the handover of the new and old property service companies include requesting the relevant administrative departments to intervene in resolving disputes, filing lawsuits in the local courts, and other means of safeguarding rights.
Meng Lina said that if the original property company refused to leave the community, the new property company could not force the handover.
In judicial practice, the original property company refuses to withdraw on the grounds that the owner has not paid the property fee, and the court generally does not support it, and the original property company has no right to collect the property fee after it should exit.
However, if individual owners think that the resolution of the owners' meeting is invalid and sue to the court, the original property company often requests to wait for the effective judgment result on this ground, which may be delayed for a year or even longer, which will have a great impact on community life. .
Clarify and refine the relevant regulations
Avoid property "loopholes
"
According to the interviewed experts, there are no specific provisions in the Civil Code and Property Management Regulations on the handover of property services, but generally apply to general procedural provisions jointly decided by the owners.
In recent years, local regulations have been further refined and explored in this regard.
As stipulated in the "Beijing Property Management Regulations", 6 months before the expiration of the property service contract, the owner's committee or the property management committee shall organize the owners to jointly decide to renew or hire another property service provider, and notify the original property service provider and the owners in writing of the decision. If it is decided to dismiss the property service provider, the property service provider shall perform the handover obligations within 30 days from the date of receipt of the notice, and withdraw from the property management area.
There are relevant provisions on penalties for the original property service enterprises that refuse to hand over.
The "Hangzhou Property Management Regulations" officially implemented by Hangzhou City, Zhejiang Province from March 2022 clarifies that sub-district offices and township people's governments should incorporate property management activities into grass-roots governance work, establish systems such as property management joint meetings as needed, and implement personnel , funds, guide and supervise the owners' assembly and the owners' committee to perform their duties.
At the same time, it is stipulated that if the property service provider refuses to withdraw from the property management project without justifiable reasons, the district or county (city) real estate authority shall order it to make corrections within a time limit, and may give a warning or impose a fine of not less than 100,000 yuan but not more than 300,000 yuan.
In response to the existing regulations on property replacement, Yang Qinfa pointed out that in general, there are few provisions in my country's laws and regulations on guiding owners to replace properties, which do not match the urgent needs of the majority of owners in real life. Part of the content of the dispute still needs to be refined and supplemented by relevant judicial interpretations.
Bao Hua said that the original property service company that refused to hand over needs to be punished, but its legitimate rights and interests should also be protected.
For newly hired property service companies, while protecting their legitimate rights and interests, they should also be punished for their forcible takeover.
Only in this way can all parties be urged to consciously fulfill their statutory obligations and actively exercise their statutory rights.
In addition, it is necessary to vigorously improve the ability of owners' organizations to make selection decisions, actively guide third-party professional organizations to participate in the daily work of owners' organizations, and resolve problems before disputes arise.
In Meng Lina's view, it is possible to consider increasing the proportion of the establishment of owners' committees, or organize work interventions through grass-roots government organizations, so as to meet the conditions for holding the owners' meeting and complete the replacement of the property company.
Provide administrative guidance by improving the model text of the "Rules of Procedures for the Owners' Meeting", such as the selection procedures, property service standards, charging standards, authorizing bidding, drafting contracts, and signing contracts for the new property company after dismissing the original property company. How to make decisions, what content can be authorized to complete the selection work after being jointly decided by the owners' meeting, and which content can only be started after the owner's meeting has decided in advance.
"We can start with legal services, and assist owners in need to complete property replacement through community guidance and legal service personnel assistance. The property committee hires lawyers to complete professional work such as bidding and drafting property service plans." Yang Qinfa suggested.
Yang Qinfa proposed that the relevant government departments should increase the filing process and supervision of the qualifications of property service companies, formulate clear and clear standards for property management activities, and reduce the "loopholes" behavior of property service companies.
Explore the establishment of a convenient complaint channel for property owners similar to the property company qualification inquiry platform, so that property service companies are subject to comprehensive and multi-subject supervision.
Continue to rectify the market atmosphere of the property service industry, strengthen the supervision of administrative power in the public bidding stage when the construction unit selects the pre-property property, put an end to illegal phenomena such as collusion in bidding, and avoid some property service companies colluding or even monopolizing the property service activities in the local area. No substantive effect.
"At the social level, the majority of property owners should also enhance their awareness of rights protection and legal literacy. The property committee can regularly organize and arrange legal education activities to make the process smoother when the property needs to be replaced." Yang Qinfa said.
Rule of Law Daily