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Chapter 46 Questions and Answers on the Evidence of Disputes over House Sale and Demolition (12)
Step [-]: The preparatory group starts work (if there are not many owners, all owners who are willing to participate can participate), draft the articles of association of the owners' committee, decide the time for the establishment of the owners' meeting and the number of members of the owners' committee, and collect the list of owners who are willing to work on the owners' committee and the materials of the candidates for the election, and notify all the owners and the relevant neighborhood committees [-] days before the establishment of the owners' meeting. If the meeting is established, representatives of the district and county community offices and relevant neighborhood committees can be invited to participate.

In the fourth step, the draft owners’ committee charter, the materials of all owners participating in the election of the owners’ committee, votes (it is best to use the method of counting objections), the time for requesting feedback and the time for the establishment of the owners’ meeting (the deadline for collecting feedback should be earlier than the establishment of the owners' meeting) to each owner in writing, and at the same time ask all owners who have received the above materials to sign for the receipt.

Step 1: When the property owners’ meeting is established, the preparatory group will open the vote checking work under the condition that all property owners in the community have the right to participate in the supervision, and count the received receipts and feedback opinions. If the receipts exceed 2/1 of the voting rights held by the property owners, If the number of opposing opinions in the feedback is less than 2/[-], the owners' meeting is established and the articles of association of the owners' committee are passed. Within the scope of the number of members of the owners' committee, the owners who get the least number of opposing votes can serve as members of the owners' committee.

In the sixth step, the proprietors' committee holds the first meeting, elects the director and deputy director of the proprietors' committee, and can carry out work.

The seventh step is to submit a brief process of the establishment of the owners' meeting, the list of owners' committee directors and members, and the articles of association of the owners' committee to the district and county community offices for record, and ask the recipient to sign for receipt and indicate the time of receiving the documents.

The eighth step, ten days after the filing, still have not received the filing opinion from the district or county community office.They may be required to be dispatched as soon as possible.

49. Is the pre-property service contract signed between the real estate development company and the property management company binding on the owner?
In August 2001, Yao signed a contract for the pre-sale of commercial housing with a real estate company. In December 8, the two parties went through the formalities of house inspection and handover.After the house was delivered, Yao agreed to hand over the house to S Property Management Company for unified management.A real estate company signed a property service contract with Company S in May 2001, agreeing that the property service fee is 12 yuan per square meter per month, and the charging standard has been approved by the district price management department. In September 2001, the community established an owners' committee, but the two parties did not sign a new property service contract because they failed to reach an agreement with Company S on the service charge standard.Yao has refused to pay property service fees since March 5. Company s failed to negotiate with it, and filed a lawsuit in the People's Court in February 2.

Analysis according to law
The focus of this case is whether the previous property service contract signed between a real estate company and S company is binding on the owner Yao.

The legal relationship of property management refers to the legal relationship between the owner and the property management company. The selection and employment of the property management company should generally be decided by the owners' meeting.However, in practice, there are many cases of "rolling development" of properties. Owners live in a gradual process. There is often a long period from the beginning of the delivery of properties to owners to the establishment of the owners' meeting.In order to manage and maintain the property, protect the legitimate rights and interests of the owners who live in the early stage, and create a good sales and leasing environment and living environment, it is necessary for the property management company to intervene in the early stage of property management.Before all the houses are sold, the construction unit owns the ownership of the unsold houses, usually the big owners, who are determined by the law to select property management companies.

When a construction unit selects a property management company, it shall sign a pre-property service contract with it. In 1994, Article 5 of the "Management Measures for New Urban Residential Areas" issued by the Ministry of Construction stipulated that "before real estate development companies sell houses in residential areas, they should hire property management companies to undertake the management of residential areas and sign a property management contract with them." The new Article 21 of the "Regulations on Property Management" also makes corresponding provisions on this, "Before the owners and the owners' meeting select a property management company, the construction unit shall sign a written pre-property service contract when selecting a property management company."

前期物业服务合同一般包括以下几方面的内容：（1）建设单位和物业管理企业的名称、住所；（2）物业管理区域范围和管理项目；（3）物业管理的合同期限；（4）物业的管理费用；（5）物业管理的要求和标准；（6）合同终止和解除的约定；（7）违约责任；（8）当事人双方约定的其他事项，如公共设施、共用设备的使用、管理、维修和更新，保安服务，保洁服务，物业维修基金的管理等。

Although the pre-property service contract was signed by the construction unit and the property management company, its service objects include the occupants, and it is binding on the owners.First of all, before the owners' committee signs a new property service contract with the property management company, it is a legal system created by the construction unit to sign the previous property service contract. There is a de facto service contract relationship between the owner and the property management company. The ultimate beneficiary of the property service behavior is the owner, and the owner should pay the property service fee. In addition, laws and regulations generally stipulate that when a house is sold, the buyer and the seller should make an agreement on the previous property service. It is stipulated that the commercial housing sales contract shall include the content of the previous property service contract, or require the buyer of the house to sign an agreement with the property management company selected by the construction unit.For example, Article 1998 of the 28 "Regulations on the Management of Urban Real Estate Development" stipulates: "For the sale of commercial housing, both parties shall sign a written contract, and the contract shall specify...the property management method and the responsibilities of both parties for breach of contract." In 2001, the Ministry of Construction issued the "Commercial Housing Sales Article 13 of the Management Measures stipulates: "When selling commercial housing, if the real estate development company selects and employs a property management company, the buyer shall conclude an agreement on property management with the property management company selected by the real estate development company when concluding the commercial housing sales contract. "Article 25 of the "Property Management Regulations" also makes corresponding provisions, "The sales contract signed by the construction unit and the property buyer shall include the content agreed in the previous property service contract."

In this case, the contract signed between a real estate company and Company S in May 2001 was a pre-property service contract. When Yao bought the house, he agreed to hand over the house to S Company for unified management. The pre-property service contract was binding on Yao. Yao should perform.

tips

Preliminary property service contract (model text)
Party A:

Legal representative:
Domicile:
Postcode:

Party B:

Legal representative:
Domicile:
Postcode:

Qualification level:

Certificate Number:

In accordance with the "Regulations on Property Management" and relevant laws, regulations, and policies, Party A and Party B, on the basis of voluntariness, equality, and consensus, have entered into this contract regarding Party A's selection of Party B to provide early-stage property management services to (property name).

Property Management Regulations Chapter 1 Property Basic Situation

The basic situation of the first property:
property name;

type of property;

location;

construction area.

Four areas of property management: east to south, west to north. (See Attachment [-] for the planning plan and Attachment [-] for property composition details)
Property Management Regulations Chapter 2 Service Content and Quality
Article [-] Within the property management area, the pre-property management services provided by Party B include the following:
1. Repair, maintenance and management of the shared parts of the property (see Appendix [-] for details of the shared parts of the property);

2. The operation, repair, maintenance and management of property shared facilities and equipment (see Annex [-] for details of property shared facilities and equipment);

3. Cleanliness and sanitation of shared parts of the property and related sites, collection and transportation of garbage, and dredging of rain and sewage pipes:
4. Maintenance and management of public greenery;

5. Vehicle parking management;

6. Assist in the management of public order maintenance, safety precautions and other matters;
7. Decoration management services;

8. Property file data management.

Article [-] In the property management area, other services provided by Party B include the following:
1.;

2.;

3 .。

Article [-] The pre-property management services provided by Party B shall meet the agreed quality standards (see Annex [-] for the quality standards of pre-property management services).

Article [-] A single owner may entrust Party B to provide maintenance and other services for the exclusive part of its property, and the service content and cost shall be negotiated separately by both parties.

Property Management Regulations Chapter 3 Service Charges

Article [-] The property management area property service charges choose the following method:

1. Package dry system

The property service fee shall be paid by the owner according to the construction area of ​​the property he owns, and the specific standards are as follows:
Multi-storey residence: Yuan/month. Square meter;
High-rise residential: yuan / month. square meter;
Villa: Yuan/month. Square meter;
Office building: Yuan/month. Square meter;
Commercial property: Yuan/month. Square meter;
Property: Yuan/month. Square meter.

Property service fees are mainly used for the following expenses:
(1) Manage the salaries, social insurance and welfare fees drawn according to regulations for service personnel;

(2) Routine operation and maintenance costs of shared parts of the property and shared facilities and equipment:
(3) Cleaning costs for the property management area;
(4) Fees for greening and maintenance in the property management area;
(5) Costs for maintaining order in the property management area;
(6) Office expenses;
(7) Depreciation of fixed assets of property management enterprises;
(8) Common parts of the property, shared facilities and equipment, and public liability insurance fees;

(9) Statutory taxes and fees;
(10) Profits of property management enterprises;

(11).

Party B charges property service fees according to the above standards, and provides services according to the service content and quality standards agreed in this contract, and Party B shall enjoy or bear any surplus or loss.

2. Remuneration system

The property service fund shall be paid in advance by the owner according to the construction area of ​​the property he owns, and the specific standards are as follows:
Multi-storey residence: Yuan/month. Square meter;
High-rise residential: yuan / month. square meter;
Villa: Yuan/month. Square meter;
Office building: Yuan/month. Square meter;
Commercial property: Yuan/month. Square meter;
Property: Yuan/month. Square meter.

The pre-collected property service funds consist of property service expenses and Party B's remuneration.

The property service expenses are owned by the paid owner and managed by Party B. They are mainly used for the following expenses:
(1) Manage the salaries, social insurance and welfare fees drawn according to regulations for service personnel;

(2) Routine operation and maintenance costs of shared parts of the property and shared facilities and equipment:
(3) Cleaning costs for the property management area;
(4) Fees for greening and maintenance in the property management area;
(5) Costs for maintaining order in the property management area;
(6) Office expenses;
(7) Depreciation of fixed assets of property management enterprises;
(8) Common parts of the property, shared facilities and equipment, and public liability insurance fees;

(9).

Party B takes the following method to withdraw the remuneration:

(1) Party B draws (monthly/quarterly/yearly) yuan from the property service funds received in advance.

(2) Party B (monthly/quarterly/yearly) withdraws according to the percentage of receivable property service funds.

All property service expenses shall be used for the expenses stipulated in this contract.The balance after the annual settlement of the property service expenditure shall be transferred to the next year for continued use; the shortfall after the annual settlement of the property service expenditure shall be borne by all the owners.

Article [-] The property owner shall pay the property service fee (property service fund) from the date.

The property service fee (property service fund) for the property that has been completed but has not been sold, or cannot be handed over to the property buyer on time due to Party A’s reasons, shall be fully paid by Party A.

If the property owner and the property user agree that the property user shall pay the property service fee (property service fund), the property owner shall be jointly and severally liable for the payment according to the agreement.The owner shall promptly notify Party B in writing of the payment agreement between the owner and the property user.

Property service fees (property service funds) are paid by (year/quarter/month), and the owner or property user should perform the payment obligation at (the specific time of each payment).

Article [-] If the property service fee is billed by the remuneration system, Party B shall announce the annual property management plan and the annual budget and final accounts of property service funds to all owners, and announce the income and expenditure of property service funds to all owners once a year.

In case of any dispute over the income and expenditure of property service funds, both parties agree to resolve the dispute in the following ways:

Property Management Regulations Chapter 4 Property Operation and Management

Article [-] The parking lot fees are collected in the following ways:

1. The parking lot is shared by all the owners, and the parking space users should pay the parking fee to Party B according to the standards of open-air parking space RMB/month and garage parking space RMB/month.

Party B draws the parking management service fee from the parking fee at the standard of RMB/month for open-air parking spaces and RMB/month for garage parking spaces.

2. If the parking lot is owned by Party A and entrusted to Party B to manage it, the owner and the property user have the priority to use the parking space, and the parking space user should pay to Party B for parking according to the standard of open-air parking space yuan/month, garage parking space yuan/month-month fee.

Party B draws the parking management service fee from the parking fee at the standard of RMB/month for open-air parking spaces and RMB/month for garage parking spaces.

3. If the ownership or use right of the parking lot is purchased by the owner, the user of the parking space shall pay the parking management service fee to Party B at the standard of RMB/month for open-air parking spaces and RMB/month for garage parking spaces.

Article [-] Party B shall sign a written parking management service agreement with the parking space user of the parking lot to clarify the rights and obligations of both parties in terms of parking space use and parking management services.

No.11 All clubs in the property management area belong to (all owners/Party A).

If the clubhouse entrusts Party B to operate and manage it, Party B will charge the owner or property user for using the clubhouse according to the following standards:
Article No.12 The parking lot, clubhouse and other common parts of the property, public equipment and facilities belonging to all owners in the property management area are entrusted to Party B to operate, and the operating income is distributed according to the following agreement:

Acceptance and Acceptance of Properties in Chapter 5 of the Property Management Regulations
Article No.13 When Party B takes over the property, Party A shall cooperate with Party B to inspect the following common parts of the property, common facilities and equipment:
No.14 Both parties have confirmed that there are the following problems in the shared parts of the property and shared facilities and equipment that have been inspected:
Party A shall undertake the responsibility to solve the above problems, and the solutions are as follows:
Article No.15 For the shared parts and shared facilities and equipment of the property undertaken after the signing of this contract, Party A and Party B shall inspect and sign a confirmation letter in accordance with the provisions of the previous article, as the basis for defining their respective responsibilities in development, construction and property management.

Article No.16 When Party B takes over the property, Party A shall hand over the following materials to Party B:

1. As-built general plan, as-built drawings of individual buildings, structures, and equipment, as-built drawings of supporting facilities and underground pipe network projects, and other completion acceptance documents;
2. Technical information on installation, use and maintenance of facilities and equipment;
3. Property quality warranty documents and property use instructions;
4 .。

Article No.17 Party A guarantees that the property delivered for use meets the acceptance criteria stipulated by the state, and undertakes the warranty responsibility for the property according to the warranty period and scope stipulated by the state.

Property Management Regulations Chapter 6 Use and Maintenance of Property

Article No.18 Before the establishment of the owners' meeting, Party B shall cooperate with Party A to formulate rules and regulations for the use of common parts of the property and shared facilities and equipment, maintenance of public order and environmental sanitation in the property management area.

When Party B provides management services in accordance with the rules and regulations, Party A, the owner and the property user shall provide necessary cooperation.

Article No.19 Party B may take necessary measures such as persuasion to stop owners and property users from violating this provisional agreement and property management rules and regulations in the property management area.

Article No.20 Party B shall promptly notify all property owners of major issues related to property management in the property management area, promptly handle complaints from property owners and property users, and accept the supervision of Party A, property owners and property users.

No.20 One, if Party A really needs to temporarily occupy and excavate the roads and sites in the property management area due to property maintenance or public interests, it shall obtain the consent of the relevant owners and Party B; Party B does need to temporarily occupy and excavate the property management area For roads and sites, the consent of the relevant owners and Party A shall be obtained.

Temporary occupancy and excavation of roads and sites within the property management area shall be restored to their original state within the agreed time limit.

No.20 Article [-] Party B and the owner or property user of the decorated house shall sign a written decoration management service agreement, agreeing on the allowed construction time, waste removal and disposal, decoration management service fees and other matters, and agree in advance Inform the owner or property user of the prohibited behaviors and precautions in the decoration.

No.20 Three Articles Party A shall provide Party B with property management premises that can be directly put into use in accordance with relevant regulations (specific time).

The construction area of ​​property management buildings is in square meters, of which: the office space is in square meters; the accommodation space is in square meters; the housing square meters is in.

No.20 Article [-] Property management houses are owned by all owners, and Party B shall use them free of charge within the term of this contract, but shall not change its purpose.

Special maintenance funds for Chapter 7 of the Property Management Regulations

No.20 Article [-] Deposit of special maintenance funds.

No.20 Management of six special maintenance funds.

No.20 The use of seven special maintenance funds.

No.20 Continuation of eight special maintenance funds.

Liability for breach of contract in Chapter 8 of the Property Management Regulations

No.20 Nine Articles Party A violates the provisions of Articles No.13, No.14 and No.15 of this contract, causing Party B's management services to fail to meet the service content stipulated in Articles [-], [-] and [-] of this contract and quality standards, Party A shall compensate the loss caused to the owner and property users.

No.30 In addition to the circumstances specified in the preceding article, if Party B’s management services fail to meet the service content and quality standards stipulated in Articles [-], [-], and [-] of this contract, Party B shall pay liquidated damages to Party A and the owner according to the standard .

No.30 Article [-] If Party A, the owner or the property user violates the provisions of Articles [-] and [-] of this contract and fails to pay the property service fee (property service fund) in full and on time, it shall pay Party B liquidated damages according to the standard .

(End of this chapter)