On The Right Of Parking Spaces And Garage

In resent years, with the increasing number of the cars for each person, the parking space of resident community can’t meet the needs of the proprietors. The old saying "There are too many (Buddhist) monks and too little gruel" is the best description for the universal phenomenon of the resident community nowadays. And therefore some real estate developers realize that they could seize the opportunity of making commercial benefits by strictly controlling the management of parking space and by taking measures of "to only rent not buy" or "to sell at a high price". Because of this, problems emerge in an endless stream that who on earth has the entitlements of the parking space. Many countries protect the stable life of residents and maintain the normal order of society by legislation. The Property Law adopted for the first time in March16,2007has offered theoretical basis of the entitlements of the parking space with its74th clause, however it doesn’t make a clear conclusion of the problem. Both proprietors and real estate developers still claim their rights in practice for the reason that they regard the parking space as their cost. The legal research should not only make a reasonable demonstration of a theory but also to solve the practical problem in the end. In this article, I will draw forth the theoretical basis of the parking space from the theoretical principle of Condominium Ownership. And will bring forth some opinions that I think can be made for reference in the mainland by comparatively analyzing Taiwan and oversea’s provision on the ownership of parking spaces and garage rights. At the meanwhile, I will explore the legislative intention of the Property Law and make comments on the regulation we have at present about the ownership of parking spaces and garage rights combining with The Condominium Ownership Judicial Explanation and some cases. By doing all this, we can have a clear picture on the value orientation of the ownership of parking spaces and garage rights. All in all, this article will focus on the rules of the residential parking spaces, garages ownership written in the Property Law and make law practice as a starting point to put forward a complete set of specification legislative vision on residential parking spaces and garage ownership.The article is composed of four chapters.The first chapter introduces the theoretical foundation of residential parking spaces and garage right of ownership, these are so-called condominium ownership system. The academic circle has three theories for the ownership of buildings theorists. They are "monism, dualism, ternary". The distinction between these different theories is how many kind of rights are included in the condominium ownership. I believe that the condominium ownership consists of the proprietary parts, total section and member’s rights. However, the residential parking spaces, garage right of ownership and residential roads, green spaces, public facilities are parts of the condominium ownership and therefore the discussion of the ownership issues is beyond the institutional framework of the ownership of condominium. In addition, as the ownership of condominium is an independent form of ownership of real estate, its object(space) is a special space existed and the concept of this right also has a special meaning for defining the ownership of the underground parking space and garage.The second chapter mainly use the comparative analysis as a tool to make a study between foreign and regional legal systems on residential parking spaces and garage and ours. By comparatively analyze the rules of ownership of the United States, France, Japan and China’s Taiwan region for residential parking spaces and garage, I found that there are three classification of the residential parking spaces and garage ownership and they are definition like proprietary parts, the total of parts and parts are discriminated. The three categories of residential parking spaces, garage ownership have a strong referred meaning to our regulation, I believe that in the legislative process in the future, the problem can be combined with the actual situation of our country, and we need to learn better foreign legislation of integration into our legislation.The third chapter describes the Legislative History of residential parking spaces and garage ownership of rights. Before the promulgation of the’’Property Law", some economic forefront regions have already made it a trial to publish some regulations on residential parking spaces and garage rights in order to solve problems like car parking during the development of our society. But these regulations and Ordinance are more fragmented and uncertain and there are few regulation on residential parking spaces and garage ownership. After "Property Law" is published, two rules for residential parking spaces and garage ownership that called "Convention vest"and" Statutory Total" have been made clear. Although there are still a lot of different voices, this determination rules’innovation are worthy of recognition. At the meanwhile, I also study around the three provisions of the74th clause of the Property Law and analyze with some classic cases. Through the analysis, I find that our country’s regulation on residential parking spaces and garage ownership is still ill-defined and lack of operability in practice,.Even if judicial interpretation have been issued for the provisions supplement, but the problem still can not be resolved.The fourth chapter mainly discuss the establishment of residential parking spaces and garage ownership in the mainland. Although the regulation of residential parking spaces and garage ownership have been made clear in the "Property Law", but the system still has some defects. The lack of underground space right system makes it no basis to set on when it comes to the underground parking spaces and the right of the underground garage. The ill-defined regulation on the ownership makes it hard to solve the problems such as how to meet the needs of the owners first and how to handle the unequal problem arranged by developers and proprietors. The imperfect registration system is the major fact due to the problem that the proprietors cannot put into practice their ownership rights. I believe that, to be given to the independent residential parking spaces, we must first establish the system of underground space right. And on this basis, we can combine the two rules("Convention vest"and" Statutory Total") in order to create the concept of legal parking spaces and the original property owner. And really set up our determined system of residential parking spaces and garage ownership through a series of supporting registration system.