Study On The Ownership And Utilization Of Underground Parking Spaces In All Building Areas

The legal definition of the ownership and utilization of underground parking spaces is an important system of building ownership.There are several ways to definite the ownership system of underground parking spaces in developed countries abroad and Taiwan region of China.First,the underground parking space is defined as the common part,which is the common property of all owners.Second,underground parking space is defined as proprietary parts.Third,the underground parking space is divided into different types and their ownership is determined correspondingly.China's current "Property Law" and related judicial interpretations have already stipulated the types of underground parking spaces.However,from the legislative point of view,the ownership of parking spaces is stipulated in the chapter of "The divisional ownership of buildings",which only stipulates the types of parking spaces from the theoretical points of view and does not classify the types of underground parking spaces from the perspective of the divisional ownership of buildings.This makes it difficult to apply the law to solve the ownership dispute of underground parking spaces in judicial practice.According to the principle of building differentiated ownership,and considering the basic fact that ownership actually occurs,underground parking spaces can be divided into proprietary partial underground parking spaces,shared partial underground parking spaces,and civil air defense parking space.Proprietary partial parking spaces refer to the additional underground parking spaces invested by the developers in accordance with the examination and approval plan,which are not the underground parking spaces that must be built and are not part of the civil air defense project.According to Article 30 of China's Property Law,developers should acquire the ownership of such underground parking spaces because they are legal builders.According to the provisions of Article 74,paragraph 2 of the Property Law,the developer may exercise the right of disposition in the form of sale,attachment or rental based on the identity of the owner of the underground parking space in accordance with the principle of private law autonomy.The shared partial underground parking space refers to the underground parking space that must be allocated in accordance with the regulations within the construction zone by the develope but it is not within the areas of the construction of civil air defense works.The shared partial underground parking spaces are underground parking spaces that must be built by the developer in accordance with the requirements of the Ministry of Construction's “Code for Planning and Design of Urban Residential Areas”.The construction cost of this type of underground parking space has been included in the sales price of commercial housing.According to the principle of building ownership,it should belong to all owners.This type of underground parking space can be rented or entrusted by a qualified third party for rent after discussion by all owners.The rental income distribution,after deducting the necessary management and maintenance costs,is shared by all owners.Civil air defense underground parking spaces refer to the underground parking space built by the developer in accordance with the approval and planning of the construction of civil air defense engineering.The construction cost of civil air defense underground parking space is borne by the developer,who is the owner of the underground parking space before selling the exclusive part of the commercial housing to the owner.With the completion of the commercial housing selling,the construction cost is transferred to the owners,and the ownership is transferred to all owners,which are jointly owned by all owners.This kind of underground parking space can be rented by itself or entrusted to a qualified third party after discussion by all owners.The distribution of rental income,after deducting necessary management and maintenance costs,shall be shared by all owners.Due to the particularity of this kind of underground parking space being regulated by both the Public Law "Civil Air Defense Law" and the Private Law "Property Law",this kind of underground parking space is forbidden to be sold,rented for a long time or given as a bonus,and can only be rented for a short time.Based on the reasonable classification of underground parking spaces and the actual needs of judicial work,it is suggested that the principle of "safeguarding and protecting the interests of owners" should be implemented in the compilation of China's Civil Code.At the same time,in the chapters of “property rights compilation” and “The divisional ownership of buildings”,the types and ownership of underground parking spaces should be clearly defined,and the operability of legal provisions should be improved.For example,the "first meeting the needs of owners" should be defined as the sole right,the number of underground parking spaces required by owners and the duration of rights exercise should be reasonably limited,the owner qualification examination system should be established,and the consequences of illegal responsibilities should be clearly defined.