The Research On The Independence Of The Prophase Realty Management Enterprise

The prophase realty management means that the developers entrust the realty management to a realty management company before the establishment of the owners’ congress. Prophase realty management is a key point in the process of connecting property construction and property management. During the design and construction phase of the realty management, it can give suggestions and advices on the potential problems, aiming at meeting the requirements, improving the quality of the realty management. It can also protect the owners’ legitimate rights before their taking over of the house and give references when facing similar problems. Of course, the premise of the ensurance is based on the fact that the prophase realty management enterprise is an independent enterprise rather than an attachment to the developers. Unfortunately, in real practice, most of the prophase realty management enterprises in our country are under the control of the developers due to lack of independency. As a consequence, legal disputes emerge when the owners’ legitimate rights can’t be guaranteed. This article will find solutions to the problem and give suggestions.Specifically, this paper divides into three parts:The first part, the paper expounds the dependent performance of the prophase realty management enterprise and its’ consequence. First of all, legal disputes will arise due to the complicated legal relationships between the developers, prophase realty management enterprise and the owners, during the period of the preliminary realty management. Secondly, most of the prophase realty management enterprises in China are affiliated to the developers or service the same group company, making the management activities go to the interests of the developers rather than that of the owners, damaging the owners’ legitimate rights and interests consequently. Finally, the manifestations of the lack of independency of the prophase realty management enterprises are as follows:the indeterminate property rights relations of the prophase realty management enterprise, the unbalanced positions between the subjects; the poor services due to the lack of professional knowledge of the confused staffs; the mere formality of the bidding process and scantiness of the sense of responsibility when companies take over and check up the properties. Besides, lack of standardization of the prophase realty management contracts and the incapacity of obtaining the prophase realty management control resulting from the owners’ unconsciousness concerning the roles of the realty management enterprises are also the demonstrations of the lack of independency of the prophase realty management enterprises.The second part comprises solutions to the problems concerning the lack of independency of the prophase realty management enterprises. The suggestions are as follows:clear provisions on separate operations; strengthen the enterprises’independency resulting from the financial independence, personnel independence and business independence and the enforcement of the separation between construction and management with the establishment of the avoidance systems. In addition, the owners can select prophase realty management enterprises by making the temporary agreement, clarifying the maintenance obligations of the realty management enterprises as well as the developers’ warranty obligations and jointly liability. With the implementation of all these measures, the developers’obligations are well prescribed and the owners’ interests are guaranteed.The third part, we need to define the legal liability of the prophase realty management enterprise as an independent enterprise. First and foremost, early intervention of the property management should be carried out, aiming at regulating the behavior of prophase realty management. It can combine the construction with management, find deficiencies, remedy the deficiency, improve user experience and ensure the owners’legitimate rights as well as monitoring the project quality. Moreover, relevant parties should guarantee the safety and the implementation of the using of property. Prescribe the liabilities and rights between both parties and turn over the property data. Finally, as representation of the owner’ interests, it should make a temporary management stipulation with the developer, signing a contract named "prophase realty management". Furthermore, the occupancy management stipulations should be strictly carried out. We can enhance the awareness of the liability and obligation of the prophase realty management enterprise from all these aspects.