On "property law" view of parking spaces and improvement of the ownership rules

Keywords: parking condominium ownership of property Law

Summary: China <<Property Law "> provisions dealing with ownership of parking spaces," should first meet the needs of owners, "the statement was too general," other venues "within the meaning of unknown, agreed to unrealistic and contrary to the legal system attributable to consistency. Should be based on national conditions of China, from the nature of parking spaces, type, function, status of land use rights, the interests involved in the ownership of parking spaces and other aspects of relationships, learn from foreign legislative cases, upholding the district parking needs should first meet the legislative intent of the owners under improve the "Property Law"> ownership rules for parking spaces.



I. <<Property Law "> ownership rules the view of parking spaces

<<Property Law "> Article 74, paragraph 1, demonstrates the value of legislators safeguard the interests of the owners choice of building a harmonious community, maintaining social stability is undoubtedly positive. But the statement is too broad and prone to understand the differences. For example, the "first" should be the owners of residential parking spaces to enjoy the right of first refusal under the same conditions, the priority to rent. [1] (P35) "first" is different from the "priority" should be subject to their understanding of the legislative purpose of protecting the interests of owners . [2] (P92) "first" does not distinguish between the conditions to give priority to the needs of the owners. [3] (P158) to purchase the number of parking spaces should be within reasonable limits, and is only used for living purposes, not for trading purposes , a reasonable number is not limited to a one. [4] (P83) the ambiguity of this provision, leading to judicial and law enforcement practice, difficult to operate. To this end, the Supreme Court on the <<hearing disputes condominium ownership of the specific Application Legal Interpretation of Several Issues> "(hereinafter referred to as" interpretation>>) Article 5, the construction unit in accordance with the allocation ratio will be parking spaces, garage, in order to sell, or lease such disposition comes to the owners, shall be determined consistent with their behavior < <Property Law "> on" owners should first meet the needs of "requirement. but <" Intepretive>> still owes more specific. According to the author the right to registration in Guangzhou City real estate trading center of the investigation, registration of property rights for the difficulty of parking spaces is how to identify whether the parking spaces have been "first to meet the needs of the owners?" the pArties through the courts to obtain enforcement of parking spaces in the auction, whether by the "first to meet the needs of owners of" restriction? visible, the provisions of this ambiguity needs to be improved, otherwise the dispute will inevitably planted The hidden impact of legislative intent to achieve.

On the surface, "<Property Law"> Article 74, paragraph 2, to respect pArty autonomy, comply with basic requirements of market economy is very reasonable. However, based on the real and relevant legislation, examine the status of its implementation, will have to questioned its legitimacy. In China, the area is still in short supply of parking spaces, are scarce resources; real estate market is basically in a seller's market, the lack of competition; national and local governments lack of control the price of residential parking spaces.

<<Property Law "> Article 74, paragraph 3, defines the type of ownership by the owners of parking spaces, but there are some gaps in. First, the" other venues "within the meaning of unknown ez controversial. Some people think that" other venues " is not included in the construction division of the other venues, the main building is not included in the open space zoning. [5] (P602) was also expressed that "other site" not to "should be included construction division" as the criterion, should not be limited "land" in the interpretation of "land" with its meaning are also in the list, including: the first floor elevated levels, end construction of Civil air defense projects. [6] (P19-20) can be said that so far the first floor layer overhead parking spaces, underground parking spaces ownership is not clear with this are not unrelated. Second, the content of co-ownership of parking spaces is not clear. If the owner can sell a total of parking spaces? who is entitled to sell? Who has the right to buy be? is achieved parking spaces or the exclusive right of ownership? who should the proceeds of such issues, the harmonious Development of the area involved or have some professional, by <<Property Law "> to specify.

Second, the analysis of the legal nature of parking spaces

Some scholars believe that parking is not independent of specific objects, not as a separate transaction object. [7] (P51), then, whether parking is an independent matter? General say that the independent concept of property is recognized by society, to a "full "The existence of material things, In other words, he objects of this material and the artificial divisions and independent persons Keyi. [8] (P80) on the criteria for determining independent objects, evolving since ancient times, but nothing more than objects to be emphasized a formal or conceptual independence, using the independence to set its on a separate property, to meet the needs of people living and production, to maintain trading order. parking lot or garage form as "a thing "But in order to facilitate the parking needs and transactions, in which people are man-made clear by means of a crossed a range of spaces and objects as separate transactions, which has the concept of the independence of the parking spaces. Meanwhile, parking spaces with a specific purpose , people can import and export through the public lane and drive a car out of parking spaces, to achieve the use of parking spaces without the help of other proprietary parts, so parking spaces with the use of independence. Accordingly, the parking spaces can be identified as independent objects. <<Property Law " Article 74, paragraph 2 parking spaces for sale, or rental comes with the provisions of this has also been suggested. That being the case, parking is not distinguish between important elements of all buildings. In Germany, an important component of the judging criteria are: the things and objects the relationship between so closely that if the separation will cause the destruction of a thing, damage or loss of effectiveness. [9] (P24) Clearly, the spaces do not meet the standard.

Parking spaces as separate objects constitute the exclusive part to have the possibility of parts can be identified as proprietary, exclusive rights to become the object of exclusive rights enjoyed by owners or developers, independent of property rights by registration certificate, can be individually Circulation. many countries and regions will be no shortage of parking spaces identified as the exclusive part of the enactment of legislation. Germany <"Residential Ownership Act"> Article 3, paragraph 2 states: "to indicate the limits of the range of persistent parking lot, considered to be independent of the room." [10] (P424) will be devoted to parking in the American Law part of the parking spaces identified as proprietary, developers can separate the transfer, lease and mortgage. Taiwan, China added its own parking spaces, additional parking incentives can be exclusive to distinguish all parts of the building. However, "<Property Law"> no clearly constitutes proprietary part of the parking spaces. <"Intepretive>> Article 2 makes up the gaps, clear spaces constitute the exclusive part of the conditions, but not reasonable, the third condition of its provisions" can be registered as owners of the ownership of a particular object "is actually redundant. as long as that is, with the first two conditions, "with construction on the independence that a clear distinction between" and "has the advantage of the independence, to exclusive use" can be. recommended <<Property Law "> modifications, in the review << explain>> the basis of the increase of parking spaces constitute the exclusive provisions of Part. of course, does not mean that parking spaces are independent of material composition only distinguish between all the proprietary parts of the building. parking spaces, or whether there are some exclusive parts, parking spaces in addition to considering the matter independently, the need to considering the situation of land use rights, the type of parking spaces, function, and the different balance of interests between stakeholders and so on.

Some scholars believe that parking is to distinguish between all buildings "from the property." Actions are governed by the <<Property Law "> Section 115 established the rules from the material, whether attributable to the owners, depending on house sales contract. [11] (P64-65) in the parking lot of the view that economic independence and effectiveness of aid, but ignored the value of independent use of parking spaces. The most prominent feature is from the material, if not the main object of existence can not be independent from the physical play of their effectiveness, such as no knife in the scabbard, there is no lamp shade and so on. Due to the loss of the auxiliary and the main thing with the role, its effectiveness can not be completely independent show. [12] (P15), but left the distinction between all buildings, parking spaces can still function independently and its parking. While we can not deny the construction division parking spaces is to distinguish between all building facilities, mainly using the main owners live here, but this correlation is not reflected in between things the master-slave relationship. If the matter in accordance with the rules from the residential underground parking spaces to solve ownership problems that can occur: First, the individual has not specifically agreed, the underground parking spaces owned by the owners, because of its relatively high cost of construction, the developer is very unfair. Second, by convention reserved for developers of parking spaces from the ownership of property will use its dominant position, monopoly parking resources, at a higher price, or car park spaces and reap monopoly interests, against the owners of the parking spaces should have legitimate interests.

Third, the ownership of parking spaces of the rules ought to be

(A) functional analysis of car park

China's Ministry of Construction and local government regulatory documents issued with construction of parking spaces to make the rules. ① Under these provisions, developers in the construction of residential quarters, it should be reported to the plan to build a certain percentage of parking spaces, as the facilities. Mandatory for facilities with construction of parking spaces, but also general practice in many countries and regions. If the French <"Urban planning Law">, the new buildings, the builder bears in building the base for the design of a parking space for each household obligations. [13] (P210) requires the developer in Toronto, Canada required by law to have two tenants Configuration 1 bedroom parking spaces, to have three or more households in the bedroom equipped with 2 parking spaces. [13] (P5) of Taiwan in 1991, "Construction and Planning Agency," issued orders requiring law with future building construction in the basement room and parking space for air evacuation, should be regarded as public facilities. in our car travel has become an important urban transport, and along with China's economic Development and the improvement of living standards, people will increase the demand for cars. Thus, living in the district where car owners parking demand is inevitable. As the statutory parking facilities will help meet the parking needs of the owners to enhance the residential living environment.

(B) ownership of the parking spaces covered by the analysis of the nature of interests and norms

Norms of Civil law is to coordinate the interests of the core task of the legislator is always according to the different types of interest, set the appropriate legal standards. [14] (P93) and thus, the discussion <<Property Law "> parking rules ought to state ownership , it is necessary to analyze the ownership of parking spaces between the interests involved. interests coordinated by Civil law in general terms, including the following three categories: Civil entities and Civil relations between the interests of the principal; civil subject interests and national interests the relationship between; civil subject interests and the relationship between the public interest. [14] (P93) in general, and civil entities subject to the civil interests of the adjustment between the main use of arbitrary norms, in addition to promoting norms and mixed norms. The main interests and national interests of civil society to adjust relations between the public interest, the main use of force norms. So, to residential parking spaces ownership interests involved, since the legal parking spaces in the district facilities, the lack of the housing unit and the entire area of ​​the property owners should lose value if its specification is not good, will certainly affect the harmony in the community, social stability, to the detriment of public interest, and thus the legal ownership of parking spaces between the interests involved in the surface appears to be the owners and the relationship between developers, in essence, should be the main interests of a civil and social relations between the public interest should be adjusted by the force of the specification. combined with the functional analysis of the legal parking spaces should be mandatory for residential construction of a number legal parking spaces owned by the owners, developers, property owners shall be mandatory to control the transfer of legal parking spaces. In total parking spaces, the mandatory set of parking spaces used exclusively for guests. because of such parking spaces for visiting relatives and friends or for the owners of service parking officers to use, with the public and temporary, should be public facilities district.

Additional parking spaces because the developers in the district of the statutory self-supporting construction of parking spaces outside the law, not force the construction, ownership of their rights and therefore should not be used to adjust the peremptory norms, but it was built in the district, out of the residential property owners live in harmony order of protection, their rights can not be solely attributable to any of the specifications used to adjust its ownership interest is involved in the relationship between the developers and owners are advised to adjust through the mixed norm. which require developers to retain ownership of additional parking spaces, has the right to decide to sell, comes with, rent, etc., but in the sale, lease additional parking spaces, they should first meet the needs of owners, the owners enjoy the right of first refusal under the same conditions or the priority to rent.

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(C) the ownership of land use rights and parking analysis of the relationship

China's existing laws to implement the "right to property line" principle, the static performance of real estate right of the main aspects of the same performance as the dynamic aspect of real estate with the right to dispose of, in the real estate transaction, "room to go anywhere, to go with the room ". ② principle of property rights law dealing with relations with the universal, and thus the ownership of parking spaces in the discussion of the rules of the state ought to be followed in order to maintain the consistency of the legal system. Specifically: If the definition of parking spaces owned by by the owners, then the occupation of the land use right transfer fee to be borne by the owners, in accordance with current practice, not included in the rate of volume, area of ​​land use rights are not assessed, built by the owners of land use rights on the land. If the definition of developers can retain the ownership of parking spaces, the parking spaces must be included in the rate of volume, area of ​​land use right allocation, land use rights to independence, which made the independent registration of certificates of title, punished according to law by the developer. parking rights and land use right transfer To the same time.

Accordingly, we can see <<Property Law "> Article 74, paragraph 3, to follow the" right to property line "principle, paragraph 2, is a violation of this principle. Because of department regulations and local regulatory documents and more provides storey 2.2 meters or less (not including 2.2 meters) of housing is not included in the construction area, underground garage, non-operating overhead layer, which are not included in the volume rate, ③ included in the rate of gross floor area or volume can not obtain the corresponding number of buildings Number of land use rights to share in an area, which houses the district with the transfer of ownership to all owners, all or nearly all of the land use rights are transferred to subsequent owners. Thus, the rate is not included in the volume of underground parking spaces, building the first floor elevated level of parking spaces that should be judged by the owners, the Development costs are included in the price accordingly. Meanwhile, in order to minimize disputes, "<Property Law"> should be explicitly owned by the owners of the land use right of construction land scope.

(D) of the United States and the rules of the ownership of parking spaces in Taiwan for reference

Distinction between the U.S. residential design all the systems follow a more fundamental principle that in addition to owners of residential housing units, the district does not allow any others to have any shared facilities and ancillary facilities. [15] (P118) Under this principle, the United States <"Unifying all legal distinction between>> (Uniform Condominium Act) (1980) Section 1-103 (7) and 1-103 (4) explicitly all the facilities within the district is divided into two exclusive parts and common parts class. In this case, the United States all the legal distinction between one community will be defined as a total of some parking spaces (Common elements), as all the owners of the total residential property can be set to a special housing unit owners can rent, sold to other residential property owners. The second is defined as parking spaces will be an integral part of housing unit, not a single transfer, the transfer only with the transfer of housing units. to protect the owners of a total of some real enjoyment of the right to control by the owners to prevent developers some to seek illegal interests of the states area is also mandatory for all legal distinction between the developer community to the owners control over the transfer time for all of the owners elected the first 2 months after MC. The election of the first owners CMC period of time, usually sold by developers of housing units to the total number of residential housing unit within 60 days of 75%. [15] (P67) Otherwise, the owners have the right to terminate the developer on behalf of the owners by the developer control period Association has signed any contract or agreement. [16] (P68) wheels on the United States is the country, there have been inadequate because of the law, developers will seek illegal appropriation of residential parking spaces interests. But with the U.S. "above "Unifying identify all Law"> the Development of its widespread adoption in the U.S. states, the established norms by imposing parking system to solve this problem effectively, but also in the car owners. contradiction of the current parking supply and demand, there is Development monopolized parking resources and a higher price, even after the price of parking spaces included in construction costs, but again at a higher price to the owners to reap huge profits and so on, seriously infringed upon the legitimate interests of owners, which the U.S. rules on ownership of parking spaces is more realistic for reference.

Taiwan, China to distinguish between parking spaces attached to all the buildings are divided into different types and set different rules. First, the legal parking spaces in accordance with the law to force the developer to set the parking spaces, built in the distinction between the base of all buildings or shared in part, does not of course belong to the distinction between buying a house all there, but by the buyers own decision whether to buy, the purchaser obtained the required parking spaces for a total holding of decentralization, no independent right to form such a right, but can be the distinction between the owner of the building between the transfer. in the legal parking spaces, you can set a specific distinction between the owner the exclusive right. Second, additional parking spaces the developers themselves according to the distinction between the common parts of all buildings (such as statutory open space) additional parking spaces on their own, should be consistent with architectural planning, but not included in the volume rate. In practice, this part of the parking structure on if you have the independence and the use of the independence of all the buildings can be distinguished proprietary part of the independent property rights by registration certificates, free transfer, but not limited to distinguish all. Third, the incentive is the additional parking spaces to encourage developers to factor in accordance with law, or a certain formula, the main distinction between all the buildings by construction or digging one or more layers of additional parking spaces and a separate, [13] (P5) exclusive of all buildings belonging to distinguish between parts made by independent property rights registration certificate, a free transfer. but in the use of negative there for "public use" obligation. ④ country Taiwan, "Apartment Building Management Ordinance," also the person from making special provisions to share part of the transfer of an apartment building, agreed to share some of their subsidiary facilities and equipment of the time, that is, formation or management of the Management Committee is responsible for elected or designated person within seven days in conjunction with "government authorities", apartment building management or management committee responsible for water and electricity on-site inspection to confirm the correct functioning after the transfer. If you failed the test was defective or function, attributable to the person from making the competent authority responsible for the repair person from making life improvement, and within one month and then the person from making or management in conjunction with management committee responsible for the transfer procedure. ⑤ National Taiwan both the developer and the practice of the interests of owners, help to increase the supply of parking spaces to ease the parking supply and demand. but its provisions are not included in their own parking spaces additional floor area ratio, easily lead to theory and practice, constitute the exclusive part of their differences, learn from our country should be abandoned when .

Fourth, improve the <<Property Law "of parking spaces proposed ownership rules

In summary, in view of <<Property Law "> parking shortcomings ownership rules, while adhering to residential parking needs should first meet the legislative intent of the owners, the base condition of our country, learn from foreign legislative cases, the following aspects should be revised and improved its :

First, the increase in condominium ownership in the exclusive part of the definition, while increasing the requirement of "marked the boundaries of the range of persistent parking spaces, regarded as independent of the room."

Second, the district is divided into the legal parking spaces, additional parking spaces in two categories, and were to be regulated. Which shall enforce the statutory allocation of parking spaces built by the developer. On the number of parking spaces built with China's current provisions of the uniform standards of national legislation to allow cities according to their level of development, supply and demand of parking spaces the development of specific standards such practice should be agreed. in legal parking spaces, the mandatory requirement for every 5 to 10 according to the owners set a standard parking place or part-time temporary car parking spaces for visitors, as residential property owners, staff and public parking. distinguish between the legal parking spaces should be defined as the total of all parts of the building, clearly established by the owners. for legal parking spaces (except for temporary rental place), determined by agreement to allow owners to set a specific owner the exclusive right to or registered as owners of houses or in the owner the exclusive right of management of the content to be recorded in the statute. The exclusive rights can be transferred with the transfer of house owners, property owners can also be transferred between the individual, but not transferred to the non-owner . In addition, owners of giving priority to protecting the interests of the premise parking, parking spaces for the full effectiveness of the legal parking spaces should be allowed to hire non-owners. set obtained the exclusive right to the proceeds after deducting costs and taxes from the property management, belongs to all owners, for maintenance funds. additional car parking spaces should be included in the rate of volume, area assessed share of the land use rights can be defined as the distinction between the proprietary parts of all buildings, individual rights by registration certificate, the developer can be sold separately, letting or mortgage, and not limited to the owners. but in the developers to sell, lease additional parking spaces, the owners have a preemptive right under the same conditions or the priority to rent.

Third, mandatory total residential developers to the owners some control over the transfer of the time and the transfer of the legal consequences of overdue. Handover time can be defined as owners of the establishment or management committee elected or designated responsible person within 1 month after. Overdue transfer may provide the legal consequences for the owners the right to terminate the control phase in a total residential developers in part by the developer has signed any contract or agreement.

Fourth, changes <<Property Law "> There are some provisions of a clear land use rights owned by the owners of the land. District land, in addition to land belonging to urban public roads, urban public green space, exclusive building land owners, assessed on an area of ​​land use rights according to law by the developers and other land outside the main buildings retained by the owners of a total construction land use rights. including: the land where the building's courtyard and its subsidiary, the open space around buildings, residential green space and road use, public facilities and land areas, land use, property services space. Meanwhile, the exclusive right to set terms for a total of some universal, some of the increase in the total requirements of the exclusive right.





Notes:
① If the Ministry of Construction <"Urban Residential Area design specification"> Article 8.0.6 provides that: residents car parking rate of not less than 10%; residential area ground parking rates should not exceed 10%; residents parking arrangement of the library should allow the necessary room for development. Buildings with car parks were built in Changchun City (Library) standard>> provides residential villas and the like, construction of vehicle parking spaces per household with no less than 1-2; residential floor area greater than 100 square meters, with construction of motor vehicles per household not less than 0.6 parking spaces; floor area of ​​less than 100 square meters with construction vehicle parking spaces per household is not less than 0.4 and so on.

② <<urban state-owned land use right transfer and the transfer of Provisional Regulations>> the first 23, "" Urban Real Estate Administration Law "> 32," <Property Law "> section 146, 147, etc.

③ Ministry of Construction, 2002 <"On the area of ​​housing construction and housing ownership issues relating to the registration notice>> that: storey 2.2 m or less (not including 2.2 meters) of housing is not included in the construction area of ​​.2005 < <Changsha City Planning and Management of Architecture and Environmental Design requirements>> Article 16: Building the elevated ground floor open space as a permanent venue for all-weather or implementation of public green area and the area not occupied floor area ratio index.

Taiwan, China ④ see "Supreme Court" word on stage 2002 Civil Ruling No. 2108.

⑤ see Taiwan, China "Apartment Building Management Ordinance," Article 57.

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