Case 1

If the misconduct of the property company causes damage to the owner, it shall bear the tort liability.

Basic facts

Zhang is the owner of 2001 houses in a certain district. The owner of 1901 downstairs neighbors asked the residential property company to stop water supply for Zhang’s house because of water leakage. In June 2020, the residential property company closed the water inlet valve of Zhang’s house and locked the pipeline well door. Zhang found that the water was cut off, and went to the property company for inquiry and negotiation the next day. Because the negotiation failed, Zhang broke open the well door and water inlet valve of the pipeline on the third day to use the basin to receive water. In August of the same year, Zhang contacted the testing organization on his own. The inspectors guessed that the heating pipeline was leaking, so he opened the tap water valve for normal use and there was no water leakage. Zhang believes that the water stoppage caused by the property company’s unauthorized closure of the water inlet valve of his house has caused damage to himself, and appealed to the court, demanding that the property company apologize, eliminate the impact, restore water supply and compensate for the losses.

Referee’s opinion

After trial, the court held that it was not the authority of the property company to close the tap water inlet valve of residents. The property company said that the closing of the inlet valve was based on the application of the damaged owner and the consent of 2001 owners, and the evidence was insufficient. Only the application and call list of the damaged owner, even if the property company sent a notice by SMS later, was not enough to prove that Zhang agreed to close the inlet valve to stop water supply. Therefore, the property company exceeded its scope of duties and its behavior was illegal. Although the property management company decided to close the inlet valve of 2001 households without finding out the cause of roof seepage of 1901 households, there was a fault, but after all, everything happened for a reason and there was no subjective malice. It was summer, when water was frequently used, the property management company closed the tap water inlet valve and locked the pipeline well without authorization, which caused inconvenience to Zhang’s life and caused losses to him. Therefore, the property management company closed the inlet valve and locked the pipeline well, which caused the tap water supply in Zhang’s home to stop, which constituted infringement, and thus caused losses to Zhang and should be compensated. On the third day, Zhang broke the door lock of the pipeline well and opened the inlet valve for intermittent use. Although his behavior was inappropriate, it also avoided the expansion of his losses. Therefore, the court decided to order the property company to compensate Zhang for the loss.

Judge’s comment

Property service involves both the owner and the property service company, and the rights and obligations of the contract are mutual. As the owner who accepts the property service, he has the obligation to pay the property fee according to the contract. However, as a party providing the property service, the property company should not only have the right to collect the property fee, but also practice legally, civilly and in good faith. In this case, the property management company took measures to cut off water from the neighbor’s house without investigating the cause of water seepage, that is, according to the application of an owner, which caused inconvenience to Zhang’s life and his behavior was obviously inappropriate. In the process of providing property services, the property company has no right to take measures that hinder the owner’s home life without authorization, such as water stop and power cut. If it acts improperly, it should bear tort liability to the owner.

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The prophase realty service contract is binding on the owner.

Basic facts

A real estate company and A property company signed the Pre-Property Service Contract, stipulating that the property company will provide property services to the residential area involved. The contract period will be from June 1, 2010 to May 31, 2015, and the contract will continue to be extended after the management stipulated in the contract expires. Li is the owner of the community involved, and he did not pay the property fee to A Property Company from January 2011 to August 2020. A property company filed a lawsuit after failing to urge payment, demanding that Li pay the arrears of property fees. Li argued that he was not a signatory to the Pre-Property Service Contract, which was not binding on him, and A Property Company had no right to claim property fees from him according to the contract.

Referee’s opinion

After trial, the court held that the Pre-Property Service Contract signed by A Real Estate Company and A Property Company was legal and valid, and its effectiveness extended to all owners. As the owner of the residential area involved, Li also signed a "occupancy contract" with the property company, and all parties should fulfill their respective obligations as agreed. The contract term of the Pre-Property Service Contract is from June 1, 2010 to May 31, 2015. As otherwise stipulated in the contract, the contract will continue to be postponed after the service stipulated in the contract expires. A property company actually provided property services for the community until August 2020. The company has the right to ask Li to pay the relevant property fees as of August 2020, so the judgment supports A property company’s claim.

Judge’s comment

The services of property service units are public, and the property fees charged by them are necessary for the maintenance of the overall property facilities and the maintenance of normal order. Article 939 of the Civil Code of People’s Republic of China (PRC) stipulates that "the preliminary realty service contract concluded by the construction unit and the realty service provider according to law, and the realty service contract concluded by the owners’ committee and the realty service provider selected by the owners’ congress according to law are legally binding on the owners". As far as this case is concerned, A Property Company provided property services for the residential area involved, and Li, as the owner who accepted the property services, has the obligation to pay the property fees according to the contract. According to the above-mentioned laws and regulations, the Pre-Property Service Contract signed by A property company and the construction unit (namely A real estate company) is legally binding on the owner, and the property company has the right to require Li to pay the property fee according to the charging standard agreed in this contract. It should be pointed out that in the process of providing property services, property service units should face up to their own service defects, actively adopt the rationalization suggestions of owners, strive to improve their service quality, and realize a virtuous circle between high-quality property services and owners paying property fees on time. A stable, livable and harmonious living environment requires the property service units to strengthen communication with the owners, make mutual understanding and accommodation, and jointly maintain it. Only in this way can a "win-win" be achieved.

Case 3

There are quality problems in the house, so the owner can’t be exempted from paying the property fee.

Basic facts

Xu bought a house in a residential area and signed the "Early Property Service Contract" with the property company. Xu has not paid the property fee since February 2019, and the property company sued Xu for asking him to pay the property fee and pay liquidated damages. Xu claimed that the property fee should not be paid because he found that there was a distribution box on the south side of the house and there was water seepage in the house, and the house did not actually live.

Referee’s opinion

The court held through trial that the first paragraph of Article 944 of the Civil Code of People’s Republic of China (PRC) stipulates that the owner shall pay the property fee to the property service provider as agreed. If the property service provider has provided services in accordance with the agreement and relevant regulations, the owner shall not refuse to pay the property fee on the grounds that he has not accepted or does not need to accept the relevant property services. In this case, the property company provided property services to the owners of the residential area including Xu, and the evidence submitted by Xu was not enough to prove that there was a fundamental breach of contract in the service of the property company, so he should pay the property fee according to the contract. Since Xu did not actually live in the house, the property fee was calculated at a 60% discount. Although the developer did not inform Xu that there was a distribution box on the south side of the house when he bought the house, this situation was not caused by the property company and should not be used as a reason for the owner to refuse to pay the property fee. At the same time, the property company, as the property service unit of the community, should actively negotiate and communicate with the relevant responsible persons about the problems reflected by the owners, and feed back the relevant results to the owners. In this case, the property company also has some imperfections such as poor communication in the service process, which is also part of the reason why Xu refused to pay the property fee, so the court did not support the liquidated damages advocated by the property company. Regarding the problem of housing seepage, according to the "Pre-Property Service Contract" signed by Xu and the property management company, housing seepage and related maintenance do not belong to the service scope of the property management company, and Xu should claim rights from the relevant responsible subjects separately.

Judge’s comment

Property service is an indispensable part of urban residents’ life. In reality, property companies should strengthen communication with owners and constantly improve their services, so as to gain the understanding and support of the majority of owners and actively pay property fees, and then property companies can have sufficient property management funds to implement property services. On the other hand, if the property fees cannot be collected in full and on time, it will directly affect the normal operation of the property company, reduce the quality of property services, form a vicious circle, and ultimately affect the fundamental interests of all owners. Therefore, in the absence of a fundamental breach of contract by the property company, the owner should pay the property fee as agreed. It should be pointed out that the quality problems such as water seepage in the house do not belong to the service scope of the property management company, and the owner cannot refuse to pay the property fee by this.

Case 4

The limitation of action for paying property fees shall be counted from the time when the last property fee is paid.

Basic facts

Wang is the owner of a house in an office building. Because he failed to pay the property fee from September 1, 2017 to April 30, 2020, the property management company sued him to the court in August 2020, demanding him to pay the property fee and pay the late payment fee. The judgment of the court of first instance supported the claim of the property company.

Wang refused to accept the judgment of the first instance and appealed that the property contract is a whole contract to fix the rights and obligations of both parties. However, with the passage of time, the rights and obligations will change, and the rights and obligations in each period are independent. The limitation of action should be calculated separately, and some claims of the property company have exceeded the limitation of action.

Referee’s opinion

After trial, the court held that Article 4 of the Provisions of the Supreme People’s Court on Several Issues Concerning the Application of the Limitation System in the Trial of Civil Cases stipulated that "if the performance period of a contract is not stipulated, the performance period can be determined according to the provisions of Articles 510 and 511 of the Civil Code, the limitation period shall be counted from the date of expiration of the performance period; If the time limit for performance cannot be determined, the limitation period of action shall be calculated from the date when the creditor asks the debtor to perform his obligations. Accordingly, the owner’s timely payment of property fees belongs to the phased performance of the same debt. In this case, the property company claimed that the owner owed the property fee from September 1, 2017 to April 30, 2020, and the limitation of action should be counted from the date when the last property fee expires. Therefore, the court does not support the owner’s defense that the lawsuit against the property company has passed the statute of limitations.

Judge’s comment

Limitation of action is a legal system in which the obligee loses the right to win the lawsuit if he does not exercise his rights within the statutory period. The General Principles of Civil Law, which came into effect on October 1, 2017, changed the limitation period of ordinary litigation from two years to three years. As for the limitation of action for performing debts by stages, our country’s laws stipulate that it should be counted from the date when the last period of performance expires. In this case, the owner owed the property fee from September 1, 2017 to April 30, 2020, and its arrears continued, so the limitation of action should be calculated from April 30, 2020. The property company filed a lawsuit in January 2021, and the statute of limitations did not exceed three years, so the owner’s defense that the statute of limitations had expired was not established.

Case 5

Owners cannot refuse to pay property fees on the grounds that they have property losses in the community.

Basic facts

In August 2017, A Real Estate Company and A Property Company signed the "Pre-Property Service Contract", stipulating that the property company would provide property services for the community involved, and the contract also stipulated the content, fees and liability for breach of contract of property services. Yu, the owner of the residential area, owed 2,535.2 yuan in property fees from January 1, 2019 to October 31, 2020, and 153.7 yuan in elevator fees from July 1, 2020 to October 31, 2020, totaling 2,688.9 yuan. In the second trial of the case, Yu claimed that his vehicle was scratched by stray dogs in the community due to the dereliction of management of the property company, so he claimed compensation for his vehicle maintenance fee from the property company and refused to pay the property fee.

Referee’s opinion

The focus of the dispute in this case is: whether Yu should pay the property fee owed to A property company. The Pre-Property Service Contract signed by A real estate company and A property company is legal and valid, and is binding on all owners including Yu. Yu has no objection to the period and amount of arrears, and A Property Company has also urged the tenants to pay the property fees by posting notices on their doors and sending lawyers’ letters. Yu, as an owner who accepts property services, should fulfill the obligation of paying the property fees in full and on time. Yu claims that the management service of A property company is not in place, and the evidence submitted by him is not enough to prove his claim, so he should bear the legal consequences of failing to provide evidence. In an appeal, a property company was asked to pay its vehicle repair fee of 3600 yuan, and claimed that the loss of the vehicle was caused by stray dogs in the community. This request is not the same legal relationship with this case and will not be handled.

Judge’s comment

In this case, Yu’s vehicle was scratched by a stray dog and suffered certain losses. This is an infringement dispute, which is not the same legal relationship as the property service contract dispute in this case. In addition, the loss of vehicles was caused by the behavior of stray dogs, which was sudden and accidental. This incident alone was not enough to prove that A Property Company failed to fulfill its management obligations, so Yu should pay the property fee according to the standards agreed in the property contract.

Case 6

If the house is vacant, the owner has the right to reduce the property fee.

Basic facts

Ding bought and received a house in a residential area in July 2019, and has never been renovated or paid property fees. The property company appealed to the court to order Ding to pay the property fee from July 1, 2019 to June 30, 2021, and pay the liquidated damages. Ding recognized the fact that he did not pay the property fee, but argued that the house was vacant and the property fee should be reduced or exempted. The court found through trial that the house purchased by Ding is still a rough house, and the indoor photos of the house he submitted can be used as evidence. The property company also recognized the fact that the house was not actually renovated.

Referee’s opinion

The property company has provided property services for the residential area involved. As the owner, Ding should pay the property fee, and if it fails, it should bear the corresponding liability for breach of contract. Ding’s failure to pay the property fee constitutes a breach of contract, and the property company claims the property fee. The facts are clear and the evidence is sufficient, and the court supports it. Article 17 of the Measures for the Administration of Property Service Charges in Shandong Province stipulates that "if an ordinary house is vacant for more than six months after delivery, the public service fee for the previous property shall be reduced; The procedures for handling vacancies and the specific reduction ratio shall be stipulated by the competent price department of the people’s government of the city or county (city, district) divided into districts in conjunction with the competent property department, but the maximum fee charged shall not exceed 60%. If other properties are vacant for more than six months after delivery, the charging standard for public service fees of their properties shall be separately agreed by the property service enterprise and the owners or property users. " In view of the fact that the house involved is still a rough house and Ding has not been renovated, the court ordered Ding to pay the property fee to the property company at 60% of the property fee standard.

Judge’s comment

In this case, Ding’s house belongs to ordinary residence. After he bought and received the house, he didn’t decorate it, let alone "live". The house was vacant, so he was asked to pay the property management fee in full, obviously unfair. According to Article 17 of the Measures for the Administration of Property Service Charges in Shandong Province, the maximum property fee charged by a property company shall not exceed 60%. Therefore, Ding’s defense of reducing property fees should be supported. The dispute in this case belongs to a typical vacant house situation. In real life, there are cases where houses have not been actually renovated for a long time. Whether houses are vacant can be comprehensively determined according to the use of water, electricity and gas. In practice, regarding the discount of vacant houses’ property fees, we should also see whether there is any agreement in the property service contract. If there is no agreement, we can order the owners to reduce the property fees according to the vacant houses that have been identified.

Case 7

The property service enjoyed by the open building in the same community is lower than that enjoyed by the closed building, and the property fee may be reduced or exempted as appropriate.

Basic facts

Cui is the owner of a house. The Pre-Property Service Agreement signed with A property company stipulates that the property service level is five stars and the property fee is 2.5 yuan/month/㎡. The contract also stipulates the content of the property service and the calculation method of the late payment fee. The building where Cui’s house is located is independent of the closed area of the community and is in an open state, surrounded by commercial street roads; Some unit doors in the building are damaged, and the monitoring camera is damaged; Sundries are piled up in some corridors, and small advertisements are posted. The owner of the building has repeatedly complained about closed management and safety problems. Because Cui did not pay the property fee from October 1, 2016 to August 31, 2021, A property company filed a lawsuit.

Referee’s opinion

When the community involved was delivered, the building where Cui’s house was located was open management, independent of other parts of the community, and the public area involved in the building was extremely limited. In terms of green space, equipment and facilities, festival activities, especially security, the service enjoyed by Cui was far from other owners in the closed area of the community. What the owner criticized most was that the building was not closed according to the agreement in the Early Property Service Agreement, which made the owner’s personal and property safety not guaranteed. A property company has made efforts to improve the living environment and property services of the building owner. However, due to the building environmental conditions and supporting equipment and facilities when the building is delivered, the space and facilities for the property services of A property company are limited, resulting in the building owner not being able to enjoy the same services as other owners in the closed area. According to the principle of reciprocity of rights and obligations, and considering the present situation of the building and the corresponding property service cost invested by the property company, it is appropriate to charge 70% of the property fee for the building as agreed in the contract.

Judge’s comment

The property management provided by the property service unit has the nature of public service, which is related to the immediate interests of the community owners. It requires the joint efforts of property enterprises and owners to better achieve the purpose of property management services and create a harmonious and comfortable community environment. At the same time, the property service contract is a continuous performance contract, which has the characteristics of long-term, complexity and triviality. Therefore, it is not appropriate to determine that the property company A has major defects in the property service process and constitutes a fundamental breach of contract, and the owner cannot refuse to pay the property fee. In view of the fact that the building involved is independent of the closed area of the community and limited by the environment and supporting equipment and facilities, the service standards of greening and security provided by A property company are lower than those of other buildings, and the owners cannot enjoy the same services as other owners in the closed area, so the charging standards of property fees should be lowered as appropriate.

Case 8

The elevator fee should be paid for the first floor residence with the negative floor garage as the initial floor of the elevator.

Basic facts

Li is the owner of the first floor house, and A Property Company sued Li for paying the elevator fee from January 2019 to December 2021. Li argued that the house involved in the case was located on the first floor, and he had never used the elevator, so he should not pay the elevator fee.

Referee’s opinion

After trial, the court held that Article 28 of the Measures for the Administration of Property Service Charges of Qingdao Municipal Price Bureau stipulates that before the establishment of the owners’ meeting, if the initial floor of the elevator is residential, the elevator operation fee of the residential owner or property user at the initial floor of the elevator shall be exempted; After the establishment of the owners’ congress, the scope of exempting the elevator operation fee shall be determined by the owners’ congress and the property service enterprise through consultation. In this case, although Li’s house is on the first floor, the building where his house is located leads directly to the underground garage on the first floor. Li’s house is not the starting floor of the elevator, but the starting floor of the elevator is the garage on the second floor. Li should pay the elevator fee according to the property service contract.

Judge’s comment

Article 28 of the Measures for the Administration of Property Service Charges of Qingdao Municipal Price Bureau stipulates that if the initial floor of the elevator is residential, the owner or property user of the initial floor of the elevator shall be exempted from the elevator operation fee, which is based on the fact that the property user does not need to use the elevator, so the elevator fee should not be considered. In this case, although Li’s house is located on the first floor, from the architectural structure of the building, the initial floor of the elevator is a negative garage, not the first floor where the house involved is located, which does not meet the requirements of Article 28 of the Measures for the Administration of Property Service Charges of Qingdao Price Bureau for exempting the elevator fee, so Li should pay the corresponding elevator fee to A Property Company.

Original title: "Under what circumstances can you not pay the property fee? The court issued 8 typical cases of property service disputes.

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