Study On Civil Issues Concerning The Ownership Of The Garage In Community

This article conduct the research from the civil law angle on the problem of the legal attribute of our country residence community garage power, altogether divides into three parts:The first part is the plot garage type and its legal attribute. This is the foundation of the full text, also the premise of the following arguments. Firstly, this article classified the garage, which exist in our country's residence community objectively. It mainly included three kinds: The first kind is the open-air parking space, which is in the residence community scope but not connected with the house. This kind of parking space usually occupies the community's public path and other public area to establish the parking lot. The second kind is established on the first floor of the housing place, this kind of garage's property should belong to the developer, and they have the right to rent or sell these garages freely, but the proprietor enjoys the priority of the first rents and the first purchases . The third kind is the underground parking area namely underground garage, which established on the underground part of the plot base scope. And in practice this kind of plot garage is disputed heavily, so it is the key point, which this article elaborates. In the next place, this article analyze the legal attribute of the plot garage from the should however angle and the solid however angle.Say from the should however angle, the plot garage should belong to the all proprietors .At present, according to our country's real estate business rule "The room walks along with the place, and the place walks along with the room", since the entire plot have already sold to all proprietors ,then the land employment right of the plot scope should also belonged to them .According to the principle "the room and the land is an organic whole", the developer no longer have the land employment right to the land belong to the plot scope and also they do not have the property rights to the plot scope real estate.According to theory of the building discrimination property rights, the plot garage belongs to the public part. The plot garage establishment attaches to the building, is similar to the green belt, the path is used for the owner, therefore it belongs to the public parts does not have the objection. The public parts belong to all proprietors , this is the meaning the theory of modern building discrimination property rights should have .According to the principle"people who invests who profits", the funds the plot owner used for purchase the house not only include the cost of the house, but also includes the expense they used to obtain the land employment right , otherwise the developer have no way of making a profit. Moreover the developer, for the benefit maximization, always sells out all that can be sold. The reason is that the plot land employment right has completely shared under each proprietor and the underground garage property rights owned by the developer meanwhile lacks the land employment right foundation. The plot owners are the actual investors of the underground garage; they should possess the property. Moreover, seen from the application of the plot garage, the plot garage constructs along with the commodity apartment construction, its use is decides along with the use of commodity apartment, attaches to the commodity apartment. The commodity apartment is designed for the owner to use, then the public parts also be supposed to use for the owner, the construction unit has no right to punish. To say from the truthfully however angle, without differentiating the special details, the plot garage all belongs to all owners is unfair for the developer .In the reality, the plot owner may not need garage, the expends which invests on the construction of plot garage completely shared by all owners would not conform to all the owner's wish. Therefore the developer invest extra money to constructs the plot underground garage, but its investment does not write down in the house cost, then the developer should have the property rights of the plot underground garage in this case, was allowed to punish freely. But when it was being rent or sold , the plot owner should enjoy the priority of the first purchase or first rent .The second part tries to discuss the theories basis of the ownership of the plot garage and its worth mindset. In this part, the writer analysis the ownership of the plot garage using the theory of indivisible right,the theory of base using and the theory of space using. According to the theory of indivisible right, the common part is the object of the indivisible right. And all the countries'legislation distinguish the part with the lawful part and the agreed part. The lawful part can only be the buildings and the equipments as whole objects, and can not be specially owned by the plot owner or other people in law,such as the stair and the passage. The agreed part is the one what isn't necessary to use by the plot business in the frame and the function,on the other side it is the part that all the plot owner agreed to make the building and the equipment what is independent in frame and function as an common part. Seen by the legislation of every countries, the underground garage belongs to the agreed part. The exploiter have no property. It can be used by appointment by the plot owner. According to the theory of base using, the base divided into the building base and the subordinate base. After the exploiter sold all the room,the plot owners own the right of the base in the plot. So, the plot owners own the right of the equipment. The using style and the using method are agreed by the plot owners'appointment. According to the theory of space using, the using right of the area belongs to using property right. It owns the nature of exclusion and affiliation. To build the undergroud garage under the building base or the subordinate base is the using of the base's underground area. The exploiter success to apply the permits from the planning department to build the underground garage, the underground area has been departed from the base-using right. It's the result of the using righter to use their rights to disposition. After the completion of the building, they gain the right to use the base of the building and the right to use the underground area when they gain the certificates of the property right. As the registration of the property right, both the using right of the building base and the underground is independent. When the exploiter sold the building, they can choose to sell as a wnole part to all plot owners or to sell seperately. If the exploiter didn't sharing the cost to all the plot owners, then, they own the right to enjoy the ownership of the underground garage and the using right of the underground area, but they should to mean the plot owners'needs firstly. The solution of the problem of the plot garage's ownership should take the balance of the plot owners'benefit and the exploiter's benefit as the basic guide.The third part is the law standard that the certain small area garage power belongs to.Say analytical foundation ahead up, this part passes the analysis to two small area garage dispute cases in the reality,and draw lessons from foreign lawmaking mode, with《real right method》of existing designate as background, with the building distinguish analyse all orieses for guide, the dint diagram investigates to resolve the law standard that the small area garage power belongs to a problem.This text thinks the small area garage is in principle to distinguish analyse the ownership person's all to have totally, but promises a development a company to develop small area garage alone, at this time the small area garage produce power ownership in develop a company, can according to《real right method》provision the way of[with] engagement carry on a punishment, but premise's ising to distinguish analyse all buildings construction to having parking lot and these parking lots don't belong to a distinction all buildings to constitute part, should be perfect in the meantime the register system of the real estate of our country, allow small area garage to carry on alone power to belong to register on the law carry on power indeed, be advantageous to the occurrence which avoids dispute.After being to the foreign lawmaking carry on relatively studying, the writer abandonned strict standard towards having particularly part of judging standard.Saying according to, having parts of ability independence important item particularly BE:Have the top of the structure and usage up of independence.The traditional theory emphasizes while judging the independence of structure it closes sex, think to have parts of beards particularly with other part have insulation it hiding and shutting equipments.The modern theory abandons thus strict standard gradually, turn and adopt the views of" the wall on the idea", think as long as have fixed boundary to mark clearly scope, make the person be able to open at idea full general a part of and other parts of distinctions, that part then can also see as have part particularly.