On The Co-ownership In The Residential Quarter

In modern society, residential community has become the main form of living in the city. The rights of the community ownership are so complex that the number of disputes is increasing day by day, particularly about the exertion and definition of co-ownership right. The chapter six of Property Law regulated the co-ownership in condominium , yet there are still inadequacies .Starting from the concept of the condominium ownership, drawing on the relevant legislation abroad, this paper discussed the fundamental research on the co-ownership part of condominium, including its concept, characteristics, nature, subject, object, and content. Then combined the disputes about it with the reference of relevant regulations ,cases and theories ,and summarized the issues leading to the disputes, by which to investigate the success and failure of relavant regulations, thereby to explore the way to perfect the Property Law .The first part is focus on the fundamental research on the co-ownership part of condominium. There are monism, dualism, triadic and four-elements theory about the concept of condominium ownership. In the property Law, it is regulated that the condominium ownership is consist of the exclusive ownership, the common ownership and the membership, of which the common ownership is an important element. As is stated in this paper, the owners in the residential quarter were entitled to occupy, use and seek proceeds from the common parts. Compared with the general common ownership ,the co-ownership in the residential quarter has the following characteristics: the legal subject is numerous and the identity is multiple, the scope of object is extensive and the types of it are various, the right and obligation is complex and the alteration of it is subject to exclusive ownership, the subject matter is indivisible.After analyzing the four theories of it, the nature of the co-ownership in condominium is thought as a special kind of ownership, which is different from the general common ownership and share in common .Combining with the practice and basing on the relevant legislation and judicial explanation, the legal members in the co-ownership of condominium should include the owner of the house, the lessee and lawful apartment dwellers.As for the object of the co-ownership in the condominium, the analysis of the scope and types of it are focus. After making reference to foreign legislation, this paper summarized the scope of the object, including the basic structural parts and auxiliary facilities of the multi-storey buildings, attached buildings and accessory facilities in the residential quarter, the construction land and occupied area within the scope of quarter. As for the types of common parts, they can be grouped, according to different criteria, into legal ones or agreed ones, common ones in whole or in part.To realize the common ownership, the owners are allowed to use, revenue, maintain and repair the common parts. But the right is not unlimited, they should use the common parts in accordance to its nature, structure and original application, and share the management fee and raise maintenance funds.The second part is focus on the analysis of disputes about the platform, the grassy area, the parking space and garage in the residential quarter. As for the dispute about the platform, this paper analyzed its ownership and usufruct, then illustrated the conduct that the developers gift the platform in the commercial housing sale. According to the constitutive elements of ownership and the theory on judging the exlcusive parts, the author holds that the platform should be shared in common by the owners living in the same building. The conduct of the developer is invalid. The owners can contract exclusive usufruct of common parts for any owner or particular person through house-owner covenant and convention. But the owners living in the garret should have priority over others.As for the the grassy area in the residential quarter, the dispute is centered on its ownership and the definition of the developer's conduct of changing the residential quarter planning arbitrarily. As is regulated in the Property Law, the grassy area should be shared by the members who live in the quarter, excluding the area which belongs to the individual expressly. But there is still controversy over the way of expression. The author holds that it cannot be expressed by the way of commercial housing contract or planning approval. Since the planning documents should be approved by the authority, the way allocating the ownership of grassy area is no matter than the way allocating property rights, which is questionable. Therefore, to determine the ownership of grassy land, it is more reasonable to distinguish the villa area from the common residential quarter. In the villa area, the individual can be approved to own the grassy land. But in the common residential quarter, the grassy area should be shared in common by all the community residents. As for the developer's conduct of changing the grassy area planning arbitrarily, it should be affirmed as a kind of tort. Since during the process of housing exchanging, the developer transferred his right to the construction land along with the ownership of the house. He no longer has right to dispose the land within the scope of the quarter.As for the issue of the parking space and the garage, it is discussed by analyzing the clause 74 in the Property Law, which includes the following questions. The first one is the ownership of the parking space and garage. This paper mainly discussed the parking place uncovered and the underground garage, the former is owned by the whole of community residents instead of individuals. As for the latter, there are many discussions over it. The Property Law regulate that its ownership can be settled by agreement between the developer and the purchaser. After analyzing the advantages and disadvantages of our legislation, this paper suggest that the parking space and the garage can be divided into two categories with reference to the Taiwan area legislation, which are statutory ones and extra ones, the former should be shared by the community residents, the latter can be disposed by the developer freely. The second one is about the realization of the co-ownership of the uncovered parking space. If there is enough, it can be contracted exclusive usufruct for specific community residents by the house-owner covenant, otherwise they have to be shared in accordance with the randomized principle. The third one is about the understanding of the "planned parking space or garage"regulated in the Property Law. This paper distinguished the planned parking space or garage from others, excluding the parking space and garage for business purpose or the ones transformed from the underground civil air defence workings. The fourth one is focus on the understanding of "meeting the owners' needs in the first place ". Generally speaking, in the statutory period, any owner or user should meet the residents' needs without any condition when they rent or sell the parking space in the residential area.