The Clarification Of Exclusive Ownership & Co-ownership Of Condominium

The promulgation of The Property Law is a milestone in the legislation history in our country. Its implementation facilitates lawful property's protection, enhances the owners'awareness of their rights'protection, and guides our marketing economy's progress. Therefore, it's really good news to private property's protection. Although the law has been enacted and the system of distinctive ownership in a building has been founded, its contents is brief and skeleton, so these rules can't cope with the complicated ownerships in a building .In order to coordinate the ever-improving construction in the city, we'd like to give some suggestions in the clarification of exclusive ownership and co-ownership of condominium.By studying the international legislation models and researching our own practices, we'll fulfill this task by 4 respective parts in this article.The first part is mainly about the meaning of the clarification. In our opinion, only when tell the exclusive ownership and co-ownership clearly, can we determine their scope, the method of exercising the rights, and their differences. Meanwhile, the affirmation of different ownership enables us to rectify the persons who are responsible for the torts that based on the building. We believe that this clarification must exert its great influence over the protection of the legal interests in reality. Based on the analyses of international legislative approach, we discuss the standards and principles of the clarification of exclusive ownership and co-ownership in condominium. These standards for defining the exclusive ownership includes: (1) the independence of structure; (2) the independence of the usage; (3) an independent registration of ownership in the law; (4) the clear distinction; (5) not-existing public equipment. And from the author's view, the standard must be composed of two parts: they are the independence of structure and the independence of usage. Nowadays scholars are not achieving their agreements on the boundary of the exclusive ownership. They have put forward four different theories. They include: (1) theory of the heart of the wall (hollow); (2) theory of spaces; (3) the surface painted wall theory; (4) the theory of the heart and the painted surface of the wall. And in our opinion, the last one is reasonable. In the affirmation of co-ownership, we must identify who can be the co-owners. From different view points, the co-owners can be ascribed to different types. But partial co-owner and common co-owner is the dominate approach. Furthermore, the latter can be divided into entire building's co-ownership and public facilities'co-ownership. Then we define the boundaries of partial co-ownerships. They share the following features: (1) the connected structure; (2) the shared usage; (3) the public usage in the law; (4) the agreement of the parties. In defining the joint ownership, there are three different models; they are (1) exclusive approach; (2) enumerated approach; (3) compromise approach. We adopt the third approach.In the third part, based on experiences of other countries'legislation and our own practices, we introduce ownership of the parking spaces, garage, and put forward our ideas. There are kinds of different parking spaces, they are (1) open-air parking spaces in residential community,(2)the parking spaces in the first floor, and (3)the parking spaces in the roof of the building. About this ownership of the parking spaces, the author advocates that: these parking spaces are ancillary facilities, and do not belong to specific owner; they must be ascribed to the basic structure of the building, that is to say, they are joint property. Then we talk about the ownership of the garages. There are four different theories about this problem. They are: (1) the theory of exclusive ownership; (2) co-ownerships theory; (3) state-owned theory; (4) the theory of specific agreement. The exclusive ownership falls into the developer's ownership and the proprieties'. Although the garages in the basement are closed and independent, we must treat them in accordance with specific circumstances. Following the examples of these developed countries, we hold the same opinion of the last theory. They can be (1) co-ownership of all the proprieties; (2) the composed of the apartment; (3) designated for the specific owner's exclusive usage right in according to their agreement. If one of the following conditions is met, the garage belongs to all the owners: (1) when the developers have calculated the pool area, the underground garage of the building area are included; (2) developers have put the cost of construction of the underground garage into the whole residential costs; (3) under the law and the local regulations, all the owner can use the underground garage for free. That is to say, once the garage have been identified as a function of public facilities when community are planned, the building of the garage will be esteemed as the developer's legal obligation;(4) developers give it to specific owners freely in the inventions or they have achieved their agreement on the exclusive ownership of the garage. Besides the cases above, all the garages that based on the developers'investment are belonging to the developers. They can rent or sell them freely. For these un-specified ones in their contracts, we can presume them as the joint venture of the proprietary. Further more, the civil air defense projects should belong to all the proprieties.The fourth part of article is about ownership of the ancillary facilities such as the public green, clubs, and offices of the management. We believe that the green, roads, gates, and roof platform should be ascribed to the co-ownership. Considering the legislations and practices in Germany, Italy and so on, we insist that the ancillary facilities can be defined as a total. In our opinion, the community clubs, swimming pools and other facilities they share the same feature of Co-ownership, and can't be used separately, so they belong to all the proprieties.