Study On Condominium

The 2007 Property Law has established a new type of property—condominium.The law has provided condominium owners with a wide freedom by allowing them to enact management covenants.The current statute,however,may not function well to establish an efficient order and to maintain the legitimate rights of condominium owners by failing to provide the legal status,scope,and liability of violation of such a covenant.First,this paper examines the current legislature and practice of community governance in China.In general,the legal status of management covenant in China is not clear,either is the consequence of violation.This paper finds that the administrative regulations regard the management covenants as contracts.Deeming the management covenants as contracts,however,would render it systematically contradictory in deciding the violation liability and the binding force for later buyers of the condominium.The absence of community governance is rather common in the real life.For most communities,there is no efficient owner autonomy,and the management of community is mostly,if not solely,relied upon property management companies.The absence of owner autonomy has brought some practical difficulties to the running of the community.For example,it would be more difficult for owners to access to the public maintenance fund,and only the very basic order can be established rather than an individualized and rich one.Besides,while examining the judicial practice of resolving related issues,this paper argues that,due to a not-so-clear statutory provision,judges have discretions more than necessary on deciding the damages.Second,this paper examines foreign legislations.It starts with legislations in typical civil law countries like Germany,Japan and Italy.It then focuses on condominium regulation in American legal system and its significant precedents.The paper finds out that civil law legislations mostly recognize the management covenant as group autonomy rules.In those jurisdictions where the management covenant is regarded as a contract,there is a statutory extension of the contract onto later buyers of the property.The paper then examines the limitations on what can a management covenant prescribe in different countries.The civil law legislations generally impose clear and specific limitations on the contents of a management covenant,while the American courts have deferred to the owners' autonomy.As to legal liability,the civil law legislations usually contain an authorization for the owners' committee to evict the owner who seriously violates the management covenant,while the common law allows the innocent owner to sue for damages or injunctions—depending upon the kind of management covenant.Finally,using a law and economic approach,this paper argues that the core value of property law is to protect the order of property,to lower the transactional costs,and to inspire the beneficiaries to exercise their legitimate rights.With the development of economy and the citizens' awareness,a more rich and specific community order is desired,and a clear provision on management covenants is called for.To achieve the purpose,the use of management covenants can play a pivotal role.The chapter has also proposed that,considering the current academic literatures,legal systems,and practices in China,it would be feasible and appropriate to deem the management covenant as a special contract among condominium owners.