Research On The Ownership Of Parking Lot And Garage In Community

On October 1st, 2007, the Property Law of the People’s Republic of China(hereinafter referred to as the “Property Law”) was formally effective, the Article 74 thereof and follow-up Interpretation of the Supreme People’s Court on Several Issues Concerning the Specific Application of Law in the Trial of Disputes over Partitioned Ownership of Building Areas(hereinafter referred to as the “Interpretation of the Partitioned Ownership of Building Areas) have led to relatively clear provisions on the ownership of parking places and garages which is beneficial to the clarification of the attribution of parking places and garages, reduce disputes and promote the stable development of the economic society. Based on the foregoing legislative background, this thesis will briefly discuss the provisions under the Article 74 of the Property Law and affirm the positive role thereof with respect to attribution of the parking lot and garages. However, due to the generality of the Article 74 of the Property Law, there are still some problems that need urgent perfection, such as the advantages and disadvantages of promise ascription for the designed parking places and garages, the implementation of the requirement of meeting the need of the owners and remedial measure in the event of non-agreement or unclear agreement, in addition to the scope of other places, the developer’s obligation to equipped parking places with respect to the places commonly owned by all the owners which are used for parking vehicles.This thesis is divided into three chapters.First chapter: the provisions and problems of the Article 74 of the Property Law. This chapter will, through summarizing the content of the Article 74 of the Property Law and affirming the progressive significance to solve the disputes arising from the attribution of the parking lot and garages, raise three main issues thereof, i.e. the issues to be discussed in this thesis. First, the categories of parking places and garages. The Article 74 of the Property Law neglects the designed packing places owned by all the owners existing in practice of which the attribution is very clear in practice that is owned by all the owners, provided however, such negligence may cause disputes and controversy between the owners and developers due to the inconsistency of their understanding of the provisions. The corresponding solution is to interpret the category of parking places of the Article 74 of the Property Law indicating that the designed parking lot and garages under the first and second paragraph shall be limited to those designed on the special parts of the owners and that the parking places under the third paragraph shall include those designed on the common parts of all the owners. Second, the attribution of designed parking lot and garages. Third, the establishment and use rule of the places owned by all the owners which are used for parking vehicles. This thesis will focus on the latter two issues which will be respectively discussed in detail in the following chapters.Second chapter: the attribution of the designed parking places and garages. The discussion in this chapter will launch in three perspectives. First, the advantages and disadvantages of promise ascription. This part will propose a method to balance such advantages and disadvantages, through the discussion thereof affirmation of the positivity thereof, that practicing the principle of the owners’ priority, detailing the rules of meeting the need of the owners first and being partial to the owners’ interests in the event of non-agreement or unclear agreement. Second, the implementation of meeting the need of the owners first. The requirement of meeting the need of the owners first reflects the owners’ priority which is significant for protection of the owners’ interests. However, such provision lacks detailed rules so that it is faced with some difficulties in practice and causes barriers for protection of owners’ 3interests. As a result, it is rather necessary to detail such provision. Meanwhile, this part will attempt to detail the rules of such provision in perspectives of clarification of its scope, quality, practicing rules and restriction of disposal to third party. Third, the remedial measure in the event of non-agreement or unclear agreement. There is no provision on the attribution of designed parking lot and garages in the event of non-agreement or unclear agreement in the Article 74 of the Property Law. This thesis holds the opinion that in consideration of the dominate position of developer and the necessity of protection of the owners’ interests the ownership of the designed parking lot and garages shall be owned by all the owners in the event of non-agreement and unclear agreement.Third chapter: the establishment and use rule of the places commonly owned by all the owners which are used for parking vehicles. The scope of other places shall first be clarified before discussion of the jointly owned parking places, otherwise, the scope of the jointly owned parking places will remain unclear. This part will first discuss the necessity of clarification of the scope of other places and initially define the same holding the opinion that other places refer to the places of which the land use right is jointly owned by all the owners and which are used for parking vehicles no matter whether they are designed or not. In practice the circumstance that some owners are in need of parking but they cannot afford to purchase the designed parking lot or garages usually takes place. So this thesis holds the opinion that for carrying out the principle of protecting the owners’ interests, the developer shall be legally obligated to establish such jointly owned parking places. To be clarified, such establishment obligation means that the developer shall provide sufficient such places for the owners to be used for parking to ensure the owners to acquire necessary parking space at lower cost rather than that the developer shall substantially establish such parking places jointly owned by all the owners according to planning approval. Another significant problem regarding jointly owned parking places is the use rule thereof. Lack of proper use rule for jointly owned parking places will easily cause disputes in practice between the owners, the owners and third party, and the owners and the developer or property management services company. This thesis holds the opinion that the use rule of jointly owned parking places shall be specified by the laws and regulations in perspectives of the users, use principle and management mechanism in consideration of function nature of such parking places and subject to the general provisions on the common parts of the owners.