On The Criteria Of Distinction Between The Unit And The Common Element Of The Condominium

Since the institution of the condominium was focused theoretically and finally established as law, the relevant research is more abundantly than one can imagine. However, from the practical view, a lot of unresolved problems are still exit in this institution and can’t satisfy the practical needs, such as the problems of the ownership of parking space, club, aerial space, outer wall of the buildings which are always discussed vehemently. Apparently, the problems caused severe social conflict which calls the solution.From the opinion of the writer, all these disputes arise from the criteria of distinction between the unit and the common element of the Condominium, and the problem is not enough focused in legislation and theory, that is why the problem and dispute are chosen by the penman. The penman tries his best to hackle, consider and reconsider the dispute and shortage in the institution from a panoramic view and make a comprehensive discuss about the problem of ownership of the construction of the architecture. As to the research route, firstly, hackle the relevant theories about the condominium, and make deep analysis into the relevant theories and legislation about the criteria of the unit and common element; secondly, use the existing reasonable result of the theories and legislations for reference and on the basis of the criticism and modification of the existing theories and legislations, and come to the reasonable criteria in my own opinion; thirdly, exercising the criteria discussed above, analyze the problem of ownership about the parking space, platform, club, aerial space and so on; finally, synthesize all the relevant discussion, and then put forward the thinking and suggestions to perfect the pertinent institution.The dissertation is going to be divided into four characters besides the introduction and epilogue.Character 1st, the Institution Value of the Criteria of Distinction between the Common Element and the Unit. Condominium is a kind of form of the ownership described in the Real Estate Law in many modern countries. As far as the definition, on the opinion of the penman, the theory of "triple elements" is reasonable, which is condominium is something that the unit owner has ownership about the unit, the common element in one building, and also, has the right to manager the things mentioned above jointly. When observing the process of the development of the institution of the condominium, from the opinion of the penman, the production and development of the condominium is based on the development of the theory about the relationship of the land and its buildings. Overall, the theory of relationship experience from "unitary" to "dualistic", being mixed by some branches or some modifications. Just about the production of the "dualistic" theory, the independent value of the buildings on the land appears which make the possibilities for people to dominate, to enact the single ownership separately on the land which is possessed by more than one person. And then, the institution of the condominium gets its correspondent theory and finally comes to amateur law. The legislative mode of "same time-disposition" under the "dualistic" theory is based on the ideal that the land and its building have their independent legal position and value, but only considering the legislative technique, they are required to keep the state of "same time-disposition". The transfer of land causes the same result of the buildings on the premise that the value of the buildings realize, vice versa. Thus it can be seen that, it can not be said that in name of the principle of "same time-disposition", one can get the right of the land or its buildings just through simple reasoning, or it will inevitably come to the circumstance that extortion and seize which is the embodiment of the initial legislation of "unitary" theory. Practically, the fact that "dualistic" theory and the principle of the "same time-disposition" can’t be correctly told causes the falsity when judging the ownership of the building. The condominium makes a real huge impulsion to the traditional theory of real estate, but if we see from a different vision, the impulsion in fact is a development. Firstly, condominium develops the theory of unique ownership can be enacted on one thing; secondly, condominium develops the scope the "object"; finally, it abounds the value of the real estate. Considering the development of condominium and the impulsion, we can see that the institution of condominium is deeply dug into the socially economic life, and develops outside and inside the social process. In order to reflect the reasonable requirement of social life, once and once again, condominium breaks through and changes the traditional theory, even the very basic theory of real estate. What we really need to do is to master core inside the theory conjointly from the true need of the society and to resolve some dispute and existing problems. And of course, which is highly recommended not to do is to dig too deeply into the traditional theory of real estate and make some simple reasoning and analysis, or it could be a failure when we come to the disputes and problems. And then, from the point of the penman, the principle of respecting and satisfying the real need of society should be put on the very important situation when we come to the disputes and problems. After discussing the basic theory, the discussion at last turns to the topic of the dissertation. So, the criteria of distinction has is important value. First, the criteria functions to make the object and boundary applied in the theory of condominium clear, which is the basic institution of the condominium. Second, in practice, the disputes of ownership of the buildings such as parking space, club, and aerial space originate from the vague criteria. Hence, making sure that what the criteria is has very importantly realistic meaning.Chapter 2nd, the Comparative Observation on the Criteria of Distinction between the unit and the common element of the Condominium. After doing the observation on the legislation, cases and theories of different countries (regions), the penman finds that no systematic legislation, cases, and scarcely relevant research. However, separate legislation on the unit and common element exit, and in some countries (regions), it is demanded to record and publish the details of the unit and common element through the legal way. From the other side, we can say that the legislation, cases and theories are also the ones for the criteria. After synthesizing the legislation, cases and theories, the clues can be found. Unit can be judged by the following two or three elements which are "tectonic independence", "independence for use" (or just the element of "independence for use") and "appear as the object of ownership of units"; the common element can be judged by the two following elements which are "for the purpose of the joint use for all or some unit owners" and "appear as the object of ownership of common elements". All these are the criteria under the comparative observation. Besides, some methods are provided to tell the above elements are satisfied or not which are also important contents for the institution. And the contents include the following. "tectonic independence" is satisfied from the situation of ideal and the building is not necessarily be shutoff. "independent entrance", "independent proprietary equipment" and "no unit equipments exiting" can be referred by "independence for use" as criteria. And what we need to mentioned is that, the application of the criteria should not be rockbound and isolate, and the principle of respecting and satisfying the real need of society should be always followed to synthesize the elements including the using purposes, using situation, the position of the discussed object in the total building, function and the relation which to total building, and then a conclusion can be come to. "for the purpose of the joint use for all or some unit owners" should be judged by the instances of joint use. And at last, "appear as the object of ownership of units" and "appear as the object of ownership of common elements" depends on how the law to describe the content and boundary between the units and common elements, and through the legal way to publish and confirm the content and boundary. It should be emphasized that the criteria belong to the second level when we discuss what the criteria of the elements are, and they share the same important meaning as the criteria of distinction of the unit and common element. However, they are different level of criteria which should be distinguished severely, and as far as to the dissertation, the criteria of first level are basically focused on.Character 3rd, the Construction of the Criteria of Distinction between the unit and the common element of the Condominium. We can see from the above synthesized criteria that, firstly, they are divided systematically; secondly, the logistic relationship of the judgment criteria of the unit and common element is vague; at last, the disputes exit at least about the judgment criteria for how to define the unit and common element, the mode to distinguish and the content of judgment criteria in different countries (region)’s legislation and theory. And how to deal with the disputes will affect the final and reasonable confirmation of the judgment criteria for the unit and common element. Hence, it is requisite to make an overall examination and analysis from a comparative view to construct a systematic, integrate criteria for the unit and common element. So, in the opinion of the penman, firstly, on one hand, although different legislative modes exit in defining the unit and common element, especially the common element, it is requisite to enact correspondent criteria to tell the unit from the common element, and this will provide the possibilities for us to analyze the criteria and then come to the correspondent criteria. On the other hand, synthesizing the criteria from different countries (regions), we know that the angle of setting up the criteria of the unit and common element is different, but since the criteria of the unit and common element have the relationship of "this or the other", they can be reflected reciprocally which means that the criteria of unit and common elements have the function of reciprocal reflection to some degree. And then we come to the conclusion that it is practical and requisite to conform the different criteria of the unit and common element to the correspondent ones. Secondly, after the analysis of the functions of "tectonic independence" and "independence for use", the penman considers they are both necessary to compose the elements of the criteria for unit. It is a more superior choice to make the two elements at the same time as the basis of the judgment criteria for telling which is the unit and which is the common element. Thirdly, herein the theory of real estate, although it is definitely that the common element is used jointly, it is not necessary to be the common element for some parts of the building for jointly use because they can be conventional. Theoretically, the conventional is still the common element, hence, it is necessary to make a modified definition for the common element after analyzing the comparative law. From the angle of use, the precise definition should be "the part which belongs to all the unit owners and part of the unit owners constructionally and qualitatively and other parts which are enacted to belong to the unit owners for joint use and hoped for the appearance of joint use through a legal and voluntary way in a building", and then according to the logistic relationship of "on or the other", the parts excluding the common elements belong to the unit. At last, the penman considers that the criteria of distinction form the common element and unit should be conform until they can be reasonable ones. And the conformity should be a logical way than simple knocking-together. In order to resolve the problem, it should be started from the clearance, character and the inner logistic of the respective judging criteria for the unit and common element. It can be found that in the composing elements of the unit, "appear as the object of ownership of units" belongs to the ultimate one which is based on the "tectonic independence" and "independence for use" are satisfied or not, so, the criteria for "appear as the object of ownership of units" and the criteria for "tectonic independence" and "independence for use" should be the relationship of deciding and being deciding. However, the relationship can not come into existing. The elements for the "tectonic independence" and "independence for use" are the necessary than sufficient ones for "appear as the object of ownership of units", the existing of the former don’t necessarily mean the accomplishment of the later. They can not establish the elements of unit. Hence, according to the principle of "one or the other", the common element can not be decided. So, it is necessary for use to perfect the elements of the unit, and the question is always how? From the point of view of the penman, herein the field of vision of the comparative law, the two basic constructing elements are the viable criteria and requisite conditions, and we can reason the viable criteria and requisite conditions of the unit from the basic elements of the common element which is definitely the ones excluding "the part which belongs to all the unit owners and part of the unit owners constructionally and qualitatively and other parts which are enacted to belong to the unit owners for joint use and hoped for the appearance of joint use through a legal and voluntary way in a building". Logically, the corporation of the viable criteria and the reasonable ones and the union of the necessary conditions and the sufficient ones can providing sufficient basis and conditions of the defining the units and finally come to the whole criteria of units. From another angle, since the principle of "one or the other" between the unit and the common element exist, while defining the units, making the definition of the unit as the main clue, and according the principle of "one or the other", making some appropriate versatility and union, reasonable and integrative judging criteria for the unit and common element can be established. After the examination and analysis above and on the basis of the optimization and conformity of the judging criteria, the penman considers that the reasonable criteria for the units and common elements should include the following. First, the "tectonic independence" and "independence for use" exist or not. If they exit, the part of the building can be the unit, and if don’t, the common element. Secondly, the circumstances belong to "the part which belongs to all the unit owners and part of the unit owners constructionally and qualitatively and other parts which are enacted to belong to the unit owners for joint use and hoped for the appearance of joint use through a legal and voluntary way in a building" or not. If they do, the part of the building can be the common element, and if don’t, the unit. Thirdly, "appear as the object of ownership of units" or "appear as the object of ownership of common elements". If the former, it belongs to the unit, if the later, the common element. At the last of this character, the penman makes a discussion of the criteria of distinction in our country and how to ascertain the difference of "appear as the object of ownership of units" and "appear as the object of ownership of common elements" is emphasized and the conclusion that documents can be considered as foundation such as documents of land of planning admission, contracts of remising the right to use the land, the planning admission documents of constructing program, the first-hand selling contract of real estate, managerial provisions and the register of the real estate is put forward.Character 4th, the Confirmation of the Ownership under the Criteria of the Distinction between the unit and the common element of the Condominium. The first section is about the confirmation of the ownership of the parking space. In this section, the relevant legislation is observed and analyzed. The penman puts forward the opinion that there are many provisions should be appreciated in the real estate law, however, due to some institutional deflect, the problem of ownership of the parking space is still unresolved. In order to enforce the pertinence and maneuverability in practice, the regional focus and thinking about the ownership of parking space should be paid attention to. Secondly, the relevant theories about the judging criteria, including the following ten theories of convention, apportion of construction cost deciding, the register document deciding, the assorted equipment, independent value, condominium, aerial right, rate of dimension deciding, apportion deciding, state-ownership, and so on. The penman considers that although the theories above provide some useful vision, they have not put forward the ultimate foundation to resolve the existing problems. The above opinion are insufficient and even false. It is necessary for us to extract the beneficent nutrition, and peel off the bad and on the basis, to seek the resolution for the problem to determine the ownership of the parking space. And then, after the observation the legislations of Japan, America, German, and Taiwan, ect, the penman considers that for the moment, it maybe not possible for use to come to the correct answer which can be applied in our country, but in the other hand, we also can see that, the legislations, cases and theories in different countries (regions) reveal the contradictions in the disputes and what should be considered in order to resolve the problems sufficiently. And they also provide the correspondent way of resolutions which means a lot help for us. And then, on the basis of the observation of the legislations and theories, what should be focused and considered are generalized and analyzed, including the if the parking space has the technical practice to enact the unit or not, the relationship between the function of parking space and the choice of ownership, the effect of the policy to encourage more construction of parking space, the legal proportion of the deployment, the cost assumption and the acquirement of the parking space, the restriction of the convention, the application of the theory of the unit, the deposition of the parking space, and so on. And then, according to the criteria of the distinction for the unit and common element, linking to the relevant consideration for the problems of parking space, the penman considers the way to resolve should be designed as the following. Firstly, the parking space, generally speaking, should have the characters of "tectonic independence" and "independence for use", and if it has the practice for unit, it can be set as the unit. And if the elements can not be satisfied, it should be the common element. Secondly, basically on the character of assorted equipment, it should satisfy the need of the unit owner at first hand. And if it can not satisfy the need, the parking space should be used jointly and it should be set as legally common element. However, considering the policy of encouraging the developer of the real estate to build more parking space, the quantity of "the parking space should be used jointly" is advisable to be restricted in some scope, and the parking space exceeding that one can be set as the unit. Of cause, for those buildings that the parking space is abundant, since the parking space is not "the parking space should be used jointly", it can be set as the unit. At last, for that can be set as the unit, if the developer and the unit owners come to a unanimous opinion, it can be se as the common element through the legal way of enacting the contract, and so on. The second section is about the confirmation of the other parts in the building. According to the criteria of the distinction between the common element and the unit, the penman considers that the housetop belongs to the unit of the relevant unit owners, unless the documents of land of planning admission, contracts of remising the right to use the land and the planning admission documents of constructing program make an adverse provision. The outer wall of the units belongs to all of the unit owner, aerial space belongs to the relevant unit owners, unless the documents of land of planning admission, contracts of remising the right to use the land and the planning admission documents of constructing program make an adverse provision. The club belongs to the unit, which can be managered and deposed independently, unless the documents of land of planning admission, contracts of remising the right to use the land, the planning admission documents of constructing program and the the first-hand selling contract of real estate make an adverse provision. The schools, the kindergartens, the municipal roads and the green lands which are owned by the government are excluded from the condominium, but if the schools and the kindergartens as the units, they can be managered and deposed independently.In the epilogue, some considerations are put forward about the perfection of the criteria of distinction for the unit and common element. According to the discussion above, the relevant theories of how to perfect the institution are synthesized and the correspondent suggestions are raised in the end.