On The Common Ownership In The Condominium Ownership

The system of condominium ownership is closely related to people’s lives. The co-ownership, as an important part of the condominium ownership system easily causes disputes often in the executions and exercises, which draws more and more attention in the society. The number of co-ownership disputes in the condominium ownership system increases year by year, and this issue has become a hot topic in judicial practices. In2007, it is the first time that the condominium ownership system in a form of a statutory law was finalized in the Property Law of the People’s Republic of China(hereafter, Property Law),which sets up a legal foundation for solving practical disputes. However, the principle law is far from the need of the complicated reality, it is necessary to take a comprehensive study on the co-ownership of condominium ownership in order to deal with those disputes properly and improve the law gradually.In accordance with the Property Law, the co-ownership of condominium ownership refers to the established ownership of the common sections of a property. Since the legal nature of the co-ownership may cause considerable disputes in theory, a "three-element theory" is adopted in the Property Law. The connotation of condominium ownership can be interpreted more comprehensively by adopting this "three-element theory" than the traditional monism, dualism and new monism theories. The co-ownership of condominium ownership, as a unique co-ownership, has such characteristics as combination of subjects, indivisibility of objects and complexity of contents. With a nature different to that of joint tenancy and tenancy in common, the co-ownership should be considered in accordance with the types of ownership objects.General speaking, the co-ownership objects of condominium ownership can be determined by using three typical methods:exclusion, enumeration and their combination. The definition method of co-ownership objects in the China’s legislation processes changes from the enumeration method to the combination of enumeration and exclusion method. The objects of co-ownership refer to the common sections, including shared parts, shared facilities, shared foundation, and the addition that does not belong to any exclusive parts as agreed among condominium owners. Some special cases of co-ownership objects, such as parking lots, clubhouses, roof platforms, are clarified and analyzed on the bases of legislation and theory in this thesis.The contents of co-ownership of condominium ownership include various rights and obligations of the owners of co-ownership. The said rights include the right to use, usufruct, repair, improve and dispose the objects of co-ownership, while the said obligations include maintaining the use of shared sections and sharing the cost of the maintenance.Though the co-ownership of condominium ownership is defined in China’s relevant laws and judicial interpretations, there are still a lot of problems, such as inexplicit definition of objects, uncertain ownership of common sections, and imperfect system of legal liability. Hence, the following three concrete measures are proposed in this thesis to solve the above problems:(a) The concept of a co-ownership object can be clarified as the common section defined by law or agreed by all or a part of the owners of condominium ownership.(b) For those special cases apt to cause disputes in practice, such as parking lots, roof platforms and club houses, etc., their ownerships should be explicitly clarified by law in order to provide legal bases to solve increasingly complicated co-ownership disputes.(c) When the rights of co-ownership holders of condominium ownership are infringed, some penalty measures should be taken in addition to the existing terms of responsibilities and obligations, in order to enhance the roles of deterrent and warning.