Study On Exercise Of The Membership In The Condominium Ownership

The membership in the condominium ownership means the rights enjoyed and the obligation assumed by the condominium owner as a member of the building management group based on the structure of a building, the attribution of rights, and the close relationship arising from the use. The existing of the membership is not only an important reflection of common fractional relations enjoyed by the condominium owners on the common section in the differentiation building owned by them but also a necessary guarantee for the condominium owners to maintain a normal living order. Therefore, the membership plays a significant role in the condominium ownership. The membership is an extension of the exclusive right and the co-ownership. However, it is an independent right alone, combining the attribute of both the law of kinds and the law of persons. It includes not only the financial relationship of the ownership, but the management relationship of the properties as well. One should say that exercise of the membership intersects and overlaps with the exclusive right and the co-ownership in terms of the disposal and proceeds of the exclusive and common part of the properties. In terms of practice, the integrity of the building structure as well as the localized feature of the right of ownership (possession) makes it extremely easy for conflicts or encroachment upon other’s title to occur among the owners of different units when they exercise their respective ownership. Therefore, when they are safeguarding their own rights over the exclusive or common sections, the condominium owners must also be obligated not to impair the rights enjoyed by other members over their parts as well as the overall interests of the condominium owners. From the perspective of the historical development in the condominium ownership, on one hand, we should not isolate the membership in our study; instead, we shall explore it in the background of the triarchic theory in combination with the exclusive right and the co-ownership. On the other hand, the membership is an extremely special right. That is why we should study the specificity in the exercise of the membership. This dissertation comprises of five chapters.Chapter One expounds the basic theories on the membership. The traditional civil law defines the theory on the membership on the basis of the objects that are wholly owned by individuals. There exists and develops no theoretical foundations for the membership. Therefore, the academic circle has not reached consensus on the definition of the membership. The system of the civil rights normally consists of the property right, the right of personality, the intellectual property, the right of relatives, and the right of members. The right of members covers the membership. It is the generalized right enjoyed by the members in a group based on its qualification and status. No perfect system for the right of members has been established in terms of legislature in our country. The right of members including the membership of the condominium owners, the right of members of the cooperative, and the right of the members of a collective economic organization is normally adjusted by the rules and regulations. No concept of the right of members is mentioned explicitly in either the Property Law or the General Principles of the Civil Law. Nor is there any concrete provision on the relevant rights and obligations of the members. Therefore, the legislators should strengthen the legal protection of the right of members in the future. In terms of the legislature, the membership is an outcome of the development and evolution of the concept of the condominium ownership. Looking into the history of the legislature on the condominium ownership in all countries or districts in the modern times, one can find that the evolution of the legislature has always been centering on the balance over the interests between the individual owner and the group. In this process, the triarchic theory wholly covers the relationship of rights and obligations in three areas of the condominium owners determined by the differentiation building structure and the attribute of the rights. This theory admits that the membership is one of the components of the condominium ownership, helping adjust the common interest relationship between the individual condominium owners and the group. The membership, in comparison with the exclusive right and the co-ownership, has its unique content and independent features, which should be studied specially.Chapter Two deals with the relationship between exercise of the membership and the co-ownership. Co-ownership is en element concerning the law of kinds in the condominium ownership. It constitutes the core of the system of the condominium ownership along with the exclusive right, another element involving the law of kinds. The membership is an extension of the exclusive right and the co-ownership. It helps understand the connotation of the membership to study the co-ownership. The general co-ownership in the Property Law cannot adjust all of the co-ownership comprising the common factors. The co-ownership in the condominium ownership is the most representative. The common part is the object of the co-ownership, normally featuring indivisibility and subordination. It helps identify the scope of the membership exercised by the condominium owners to determine the common part. The legislators in the world normally determine the scope of the common part by means of enumeration, presumption, and summarization. Learning from the overseas modes, the legislators in our country define the scope of the common part by three modes, e.g. presumption, summarization and enumeration. The criteria defining the common part in the summarization mode should be divided into the substantive criteria and the formal criteria, i.e. the building part that is defined as common based on the common use in terms of structure or nature plus other consensus as well as is announced. These criteria should be verified in combination with the presumption mode, namely it is necessary to identify the scope of the exclusive part to further identify the common part. When identifying the criteria for the common part, the judicial interpretation in our country adopts the summarization mode to determine the substantive and formal criteria of the common part. The laws dealing with the co-ownership of the condominium ownership is special. It is different from both the pure several possession and the normal joint possession. Instead, it is a limited several possession.Chapter Three expounds the nomological analysis of the restriction on exercising the membership. The human being, as a free individual, always seeks the individual value. The difference in each value results in diversity. Therefore, it is likely to have conflicts in the course of the pursuit of the value targets between the individuals. The relationship between the individual owner and the owners group in the condominium ownership buildings reflects this new development trend in the civic society. Consequently, the rule of law will be updated and constructed. In the frame of the system of the condominium ownership, house buyers accept the units sold according to the condominium ownership program to obtain the exclusive ownership of the house. The units in the condominium buildings are closely connected in terms of structure. Furthermore, the community life in the building is more frequent and the team spirit is stronger. These features of the condominium ownership prove that exercise of the individual exclusive ownership is not absolute and supreme; instead, it is restricted to certain extent in the common environment, which is demonstrated in the overseas legislature, i.e. the restriction on the exclusive ownership and the co-ownership. However, the restriction on the owner’s rights is not absolute and blind. Only when it is legitimate can it reconcile with the spirit of law making and the need of the owners.Chapter Four addresses the realistic conditions and reasonable scope of exercising the membership by owners in our country. In order to maintain the basic functions of all parts in a building, to safeguard the common living order of all owners, and to coordinate their conflicts in interests, we must deal with all common matters properly with the help of the management group and organization. It is shown by the development and evolution of the legislature practice and judicial precedent in all countries (regions) that it is a basic trend to acknowledge with or without conditions the corporate personality of the condominium owner management group. Although the Property Law, the Regulations on Property Management, and the Judicial Interpretation of the Condominium Ownership have neither granted the owner’s general meeting and the owner commission the corporate personality nor explicitly defined their legal nature and status, the owner commission has participated, as a litigant, in actions concerning the common interests together with the relevant owners in practice. In terms of the property management, we should learn from the practice in developed countries and regions, namely establishing the legal status.of the owner group, establishing the direct legal relationship between the owner group and the property management company, and identifying the counterpart claiming for the property management fee as the owner group. This will not only simplify the judicial procedures of suing the owner in a separate case, but help save the time and costs of individual negotiations as well. In terms of the condominium ownership, it is also necessary to restrict the property right and decision-making right of the owners. The common restrictions on the exclusive right in our country mainly include no interference with the normal use of the building and no damage to the building as well as no violation of the common interests of the entire owners. As for the co-ownership, our laws and the court practice stipulate the prohibitive obligations of the condominium owners by means of enumeration, i.e. that the condominium owners shall reasonably use the common part, that they shall not perpetrate acts affecting the normal use of the building in violation of the objective, nature, and structure of the said part, that they shall not take the liberty to change the structure and facilities of the said part, that they shall not violate the common interests of the entire owners. To summarize the relevant laws and the foregoing cases, when a court decides whether the act is the normal use, it usually adopts the following train of thought. Firstly, the self-management stipulations of an agreement made by the owners shall be followed. In the event that the owners fail to agree on the use of the common part, the determination will be made based on the civil habits, the general social ideas and the principle of fairness and reasonableness. Moreover, the Property Law takes the prohibitive obligatory norm as the reference standard. The status of the owner group in our country is not strong. Nor can the self-management stipulations play any obvious role. In terms of the differentiation buildings, the scope of the owner’s rights is still adjusted by the law, namely the absolute prohibitive provisions are more adopted. Nevertheless, the US attaches more importance to the desirability of the owners. The principle of autonomy of will is reflected. Therefore, the self-management stipulations are the specific norms in each neighborhood. As long as they are not in violation of the law, they reconcile with the "criteria for the effect of the stipulations". Therefore, the criteria for owner’s rights in the US are stricter than those in China to certain extent. In terms of restrictions on the decision-making right of the owners, our laws only stipulate that the minority affected by the decision made by the owners general meeting may apply to the People’s Court for cancellation in the event that such decision encroaches upon their interests. However, based on the features of autonomy in a housing development, although the said decision should be supported as long as it is not in violation of the law, the interests and rights among the owners should be adjusted through legislature, i.e. there should be explicit provisions on the safeguarding and relief of the interests of the said minority. Finally, due to the comparatively weak status of the owner group in our country, the property management company instead of the owner has normally become the important management subject in practice. There are differences between them in terms of interests. Under such circumstance, there are numerous disputes over torts between the property and the owners. Therefore, the property management company shall strengthen safety guarantee obligation to perfect the protection of the rights and interests of the owners in the housing development.Chapter Five expounds the legislation and its improvement in terms of exercising the membership by the owners. To begin with, establish the status of the autonomous body in the community. The owners’general meeting and the owner commission play a significant role in the realistic property management. However, China has not acknowledged the litigation qualification of the owner group; instead, only the litigation status of the owner commission is acknowledged. This is insufficient to straighten out the property management legal relations both in theory and in practice. Our country should learn from the overseas legislature examples and judicial practice to stipulate the corporate qualification of the owner’s general meeting. Furthermore, based on it, the relationship between the general meeting and the owner commission should be straightened out so that the supporting norms concerning the conditions and procedures of the owner commission’s participation in litigations can be perfected. Next, clarify the scope of exercising the membership. In the system for the condominium ownership, based on the features of the differentiation buildings the exclusive owners form the community relationship. Therefore, the balance of interests between the individual and the collective rights becomes the core. The restriction of the membership on the exercise of property right lies in the exclusive right and the co-ownership. In the process of coordinating the individual interests of the owners and the common interests of the group, it is anything but simple to determine whether the act is legal or illegal. In many cases, the claims of both parties may be legitimate to a certain extent. Therefore, we must consider the issued from the perspective that the law of the condominium ownership respects the individual rights and maintains the group interests. Accordingly, the range of criteria set in the judicial practice in the US to support the determination of the "reasonable use" are worth learning by China. Moreover, the membership of the owners should restrict the decision-making right. However, the Property Law and the Property Management Regulations in our country do not stipulate the adjustment in the rights and interests among the owners, i.e. there is lack of the guarantee and relief of the interests of the minority like the legislature example in other countries. It is suggested that the stipulations on the right to objection and cancellation of the owners be further refined and perfected. In addition, when no consensus can be reached or there is a deadlock between the majority and the minority of the owners, our country should stipulate the withdrawal mechanism of the owners in legislature, which is the last protective screen facilitating the smooth going on of the resolution while protecting the interests. Finally, we should establish the system for owner property insurance including the disastrous accident insurance and tort liability insurance. Before we accurately identify the two kinds of insurance, the practice in the US concerning the tort law on the condominium owners can give us inspirations.