Examination And Legislative Improvement Of The Rules Of Residential Parking Spaces And Garage Ownership

Owners and developers,who move whose cheese in the end? In early April 2016,the circle of friends in WeChat circulated an article titled “No Need to Buy Parking Space if You Buy a House in Nanjing.” The article centered on the dispute over underground garage between the owners committee of Nanjing Xinghan Residential Building and the developer Nanjing Xinghan Properties Limited.The court decided that Nanjing Xinghan Properties Limited shall hand over the underground garage constructed thereby to the committee and thus all residential owners shall enjoy parking rights.Later,Nanjing Gulou District Court responded that the decision mentioned in some WeChat public number does not take effect and the case shall be subject to the final decision.In fact,there were two decisions on the Xinhan Garage case,one in November 2003 and the other in September 2014.In June 2003,the owners committee of Nanjing Xinghan Residential Building sued the developer Nanjing Xinghan Properties Limited to the court,requesting that the developer Nanjing Xinghan Properties Limited to hand over the underground garage of Xinghan Residential Building to all residential owners for their possession,use,benefit and disposal.Nanjing Gulou District Court made the first decision in November 2003 that the developer shall hand over all 59 underground garages to the owners committee for management and the owners committee shall have their possession,use,benefit and disposal of the 59 underground garages.After the decision was made,Nanjing Xinghan Properties Limited filed an appeal.After trial,the Court of Appeal held that the facts in the decision made by the Gulou District Court is not clear and therefore,reversed the earlier decision and remitted the case for a rehearing.Since then,in September 2014,Gulou District Court made the second decision that Nanjing Xinghan Properties Limited shall return the payment for the garage RMB 500,000 Yuan to the owners committee of Nanjing Xinghan Residential Building and rejected other claims by the owners committee thereof.After the second decision,both parties did not file an appeal and now the decision has taken effect.An old case lashed the wave again.Despite its relation with the imperfection in the law in our country,what the case reflected is the sensitivity of the public to the garage property.This thesis takes the case of underground garage property of Nanjing Xinghan Residential Building as an example and focuses on the elaboration of the related issues in the garage property in the residential building.The thesis centers on examination and legislative improvement of the rules of residential parking spaces and garage ownership.Based on our existing legislation on the rules of parking spaces and garage property,this thesis starts from the residential parking spaces,garage content,nature and classification,discusses the different theories of residential garage,and foreign rules and regulations on the garage,concludes that despite some faults,the stipulation theory is the feasible practice which we can choose at this stage and finally proposes some improvement suggestions for the law in our country on parking spaces and garage.This thesis is composed of four parts.Part One first elaborates the connotation and nature of parking spaces and garage,restricts the parking spaces and garage discussed in this thesis into the residential parking spaces and garage and analyzes the major differences between parking spaces and garage,then classifies parking spaces and garage according to different classification standards and finally discusses the nature of parking spaces and garage,holding that parking spaces and garage are not the appendage of the main building,thus have the possibility to become an exclusive part and an object of exclusive right.Part Two mainly discusses different theories on residential parking spaces and garage property,including the developer-owed theory,owners-owned theory,the stipulation theory,the relationship theory between construction cost and development cost and relationship theory between the construction area and pool area.This part elaborates our choice of the theory on residential parking spaces and garage property and proposes the inevitability for the choice of the stipulation theory,and holds that the establishment of the property stipulation principle is the specific reflection of respecting the intention of the parties,which conforms to the vital interests of the parties,and the autonomy of private law of solving the garage and garage property by the negotiation of the parties concerned is better able to coordinate the rights and obligations of the parties concerned,and is conducive to respectively reflecting the interests and wills of the owners and the developer,which is of great significance to ease the tension in residential parking spaces.Although there are certain advantages in the developer-owed theory,owners-owned theory,the relationship theory between construction cost and development cost and relationship theory between the construction area and pool area,these theories also have clear defects without practical operability.Article 74 in the Property Law in our country stresses the stipulation property principle with the support of statutory common possession(owners common possession)and in the meanwhile restricts the principle with “first meeting the owners’ demands”.Part Three elaborates the defects of our current law on the rules of residential parking spaces and garage property,holding that although the stipulation theory is chosen by our current legislation,there are certain defects in operation,such as,what is the stipulated scope;what is the way to determine the stipulated scale and object and the way to handle the case without stipulation or with unclear stipulation;first meeting the owners’ demands is an advocating norm,mandatory norm or authorizing the third party to make regulation;what is the first between the preemptive right to parking spaces and garage or the priority use right thereto,the need is ownership needs,use need or investment need,current need or future need;whether the owners who have already owned the parking spaces and garage of the residential building are included in the need obligation subject;and what can be done if the developer fails to first meet the owners’ need.Part Four proposes improvement suggestions for our current legislation in reference to the legislation system in the United States,France and Chinese Taiwan.This part holds that it is necessary to give full play to the role of the Property Law in settling the dispute over parking spaces and garage,and to improve its relevant provisions.It is required to have clearly stipulated scope if residential parking spaces and garage become the stipulated object.If the residential parking spaces first meet the owners’ demands,the developer is required to construct the parking spaces compatible with the residential scale when planning,designing and constructing the residential building and in the meanwhile,only the stipulated object is restricted so as to prevent the developer from stipulating the parking spaces and garage to the other people other than the residential owners by way of transfer,lease or bonus can the parking interests of the residential owners be truly guaranteed.Article 74 in the Property Law belongs to validity provision in mandatory provision and when the developer breaches the provision to give the parking spaces and garage to the other people other than the residential owners without authorization,the disposal is not legally binding and is invalid in accordance with Paragraph 5,Article 52 in the Contract Law.However,the invalidity here is not absolutely invalid,but relatively invalid and only the residential owners bring invalid request can have this contract invalid and the court can make interpretations to the parties concerned according to the interpretation right rule.The obligation of first meeting the owners’ demands not only includes the developer but also the residential owners who already owned the residential parking spaces and garage.“First” is not a legal term,but a right state,which means that the developer cannot sell,lease or donate the parking spaces to the third party without first meeting the owners’ demands.The right in “first” here is neither preemptive right nor the priority leasing right but the combination of the two rights and the choice right lies in the owners.From the perspective of time,“need” refers to the period during which the residential parking spaces and garage are sold one by one before they are all sold,leased or donated.