Judicial Interpretation by the Supreme People's Court on Issues Concerning the Specific Application of Laws in the Trial of Cases Involving Disputes over Condominium Ownership of Buildings

最高人民法院关于审理建筑物区分所有权纠纷案件具体应用法律若干问题的解释

Promulgating Institution: Supreme People's Court

Document Number: Fa Shi [2009] No. 7

Promulgating Date: 05/14/2009

Effective Date: 10/01/2009

颁布机关: 最高人民法院

文    号: 法释[2009]7号

颁布时间: 05/14/2009

实施时间: 10/01/2009

Text

正文

For the purposes of guiding the trial of cases involving disputes over condominium ownership of buildings, and safeguarding the legitimate rights and interests of the parties concerned and on the basis of civil trial practice, this judicial interpretation is formulated in accordance with the provisions of the Property Right Law of the People's Republic of China and other applicable laws.

    为正确审理建筑物区分所有权纠纷案件，依法保护当事人的合法权益，根据《中华人民共和国物权法》等法律的规定，结合民事审判实践，制定本解释。

   Article 1   A person who acquires the ownership of proprietary parts of a building through legal registration or in accordance with the provisions of Section 3, Chapter 2 of the Property Law of the People's Republic of China (hereinafter referred to as the "Property Law") shall be deemed as owner of the parts as is provided in Chapter 6 of the Property Law.

A person who legally acquires a proprietary part of a building on the basis of the civil act of commercial housing sales with the developer of the commercial housing, but is yet to make the registration of the ownership to the part, may be deemed as owner of the parts as is provided in Chapter 6 of the Property Law.

     第一条 依法登记取得或者根据物权法第二章第三节规定取得建筑物专有部分所有权的人,应当认定为物权法第六章所称的业主。

    基于与建设单位之间的商品房买卖民事法律行为,已经合法占有建筑物专有部分,但尚未依法办理所有权登记的人,可以认定为物权法第六章所称的业主。

   Article 2   The housing as well as specific spaces, including parking places and booths that meet the following requirements shall be deemed as the proprietary parts as are provided in Chapter 6 of the Property Law:

(1) To be structurally independent and readily distinguishable;

(2) To be independent in utilization and be utilized exclusively; and

(3) To be registered as the object of the ownership of specific owners.

Such structures as terraces that proprietarily belong to specific housings in design and are included in the sales contract of such housings by the developers of the housings according to the design shall be deemed as proprietary parts as are provided in Chapter 6 of the Property Law.

The term "housing" in Paragraph 1 of this Article shall include the entire building.

     第二条 建筑区划内符合下列条件的房屋,以及车位、摊位等特定空间,应当认定为物权法第六章所称的专有部分:

    (一)具有构造上的独立性,能够明确区分;

    (二)具有利用上的独立性,可以排他使用;

    (三)能够登记成为特定业主所有权的客体。

    规划上专属于特定房屋,且建设单位销售时已经根据规划列入该特定房屋买卖合同中的露台等,应当认定为物权法第六章所称专有部分的组成部分。

    本条第一款所称房屋,包括整栋建筑物。

   Article 3   In addition to the common parts provided in laws and administrative regulations, the following parts within the building area shall also be deemed as common parts as are provided in Chapter 6 of the Property Law:

(1) The parts of the basic structure of a building, including the base, load-bearing structures, outer walls, roofs, etc.; public passage areas, including passageways, staircases, and lobbies, etc.; ancillary facilities and equipments, including those for fire prevention and common lighting purposes; and structural parts, such as emergency shelter floors, equipment floors or equipment rooms, etc; and

(2) Other parts are neither proprietary parts of the owners, nor common parts for public utilities, nor areas and facilities owned by other parties.

The owners shall jointly be entitled to the rights to use the construction land within the building area, with the exception of the land within the planned area of the building, to which land the owners have proprietary ownership, or the land taken up by public urban roads and green spaces.

     第三条 除法律、行政法规规定的共有部分外,建筑区划内的以下部分,也应当认定为物权法第六章所称的共有部分:

    (一)建筑物的基础、承重结构、外墙、屋顶等基本结构部分,通道、楼梯、大堂等公共通行部分,消防、公共照明等附属设施、设备,避难层、设备层或者设备间等结构部分;

    (二)其他不属于业主专有部分,也不属于市政公用部分或者其他权利人所有的场所及设施等。

    建筑区划内的土地,依法由业主共同享有建设用地使用权,但属于业主专有的整栋建筑物的规划占地或者城镇公共道路、绿地占地除外。

   Article 4   An owner's free utilization of the roofs and other outer wall surfaces corresponding to the proprietary parts owned by the owner on the basis of the reasonable demand for the functions of such proprietary parts of the housing and commercial housing, shall not be deemed as infringement, except where such utilization breaches applicable laws, regulations and management rules or damages the legal rights and interests of other parties.

     第四条 业主基于对住宅、经营性用房等专有部分特定使用功能的合理需要,无偿利用屋顶以及与其专有部分相对应的外墙面等共有部分的,不应认定为侵权。但违反法律、法规、管理规约,损害他人合法权益的除外。

   Article 5   Where the developer of a property allocates the parking places, or garages to the property owners in the form of sales, gift or lease, etc. according to allocation proportion, such practice shall be deemed as in compliance with the provision of "the owners' needs shall be firstly met with" in Paragraph 1, Article 74 of the Property Law.

The allocation proportion in the previous paragraph means the proportion of the number of the parking places and garages for automobiles within the planned areas of the building against the number of housings in the building.

     第五条 建设单位按照配置比例将车位、车库,以出售、附赠或者出租等方式处分给业主的,应当认定其行为符合物权法第七十四条第一款有关“应当首先满足业主的需要”的规定。

    前款所称配置比例是指规划确定的建筑区划内规划用于停放汽车的车位、车库与房屋套数的比例。

   Article 6   In addition to the parking places within the planned area of the building, additional parking places that occupy public passageways of the owners or other spaces shall also be deemed as parking spaces as are provided in Paragraph 3 of Article 74 of the Property Law.

     第六条 建筑区划内在规划用于停放汽车的车位之外,占用业主共有道路或者其他场地增设的车位,应当认定为物权法第七十四条第三款所称的车位。

   Article 7   Altering the purposes of the common parts, using common parts for commercial purposes and disposing of common parts as well as other matters that shall be jointly decided by the owners as determined by the owners' general meeting in accordance with the law or as determined by the management rules in accordance with the law shall be deemed as "other major issues" concerning the common ownership and the common management right to the common parts as are provided in Item 7, Paragraph 1, Article 76 of the Property Law. 

     第七条 改变共有部分的用途、利用共有部分从事经营性活动、处分共有部分,以及业主大会依法决定或者管理规约依法确定应由业主共同决定的事项,应当认定为物权法第七十六条第一款第(七)项规定的有关共有和共同管理权利的“其他重大事项”。

   Article 8   The area of the proprietary parts and the total area of the building as are provided in Paragraph 2, Article 76 and Article 80 of the Property Law may be determined according to the following methods:

(1) The area of the proprietary parts shall be computed with those recorded in the real estate register; where the property rights to such parts are not registered, the area of the proprietary parts shall be computed with the actual measurements by a surveying institute on a temporary basis; where no such measurement is conducted, the area prescribed in the sales contract shall be taken as the area of such proprietary parts on a temporary basis; and

(2) The total area of the building shall be the sum of the area of the proprietary parts as calculated in the preceding paragraph.

     第八条 物权法第七十六条第二款和第八十条规定的专有部分面积和建筑物总面积,可以按照下列方法认定:

    (一)专有部分面积,按照不动产登记簿记载的面积计算;尚未进行物权登记的,暂按测绘机构的实测面积计算;尚未进行实测的,暂按房屋买卖合同记载的面积计算;

    (二)建筑物总面积,按照前项的统计总和计算。

   Article 9   The number and total number of owners may be determined according to the following methods:

(1) The number of owners is calculated on the basis of the number of proprietary parts, with one proprietary part having one person. However, the proprietary parts which have not been sold by the developer of the building or which have been sold yet have not been delivered, or more than one proprietary parts owned by the same purchaser shall be deemed as belonging to one owner only;

(2) The total number of owners shall be the sum of the numbers reached by the method in the preceding paragraph.

     第九条 物权法第七十六条第二款规定的业主人数和总人数,可以按照下列方法认定:

    (一)业主人数,按照专有部分的数量计算,一个专有部分按一人计算。但建设单位尚未出售和虽已出售但尚未交付的部分,以及同一买受人拥有一个以上专有部分的,按一人计算;

    (二)总人数,按照前项的统计总和计算。

   Article 10   Where an owner uses his or her housing for commercial purposes without obtaining the consent of interested owners as required by Article 77 of the Property Law and therefore such interested owners request for abatement of nuisance, elimination of danger, restoration to the original state or compensation for damages, the competent people's court shall support such claims.

Where the owner that uses his or her housing for commercial housing defends his or her action on the ground that the majority of the interested owners consent to his or her action, the competent people's court shall not accept such defense.

     第十条 业主将住宅改变为经营性用房,未按照物权法第七十七条的规定经有利害关系的业主同意,有利害关系的业主请求排除妨害、消除危险、恢复原状或者赔偿损失的,人民法院应予支持。

    将住宅改变为经营性用房的业主以多数有利害关系的业主同意其行为进行抗辩的,人民法院不予支持。

   Article 11   Where an owner uses his or her housing for commercial purposes, other owners of housing in the same building shall be deemed as "interested owners" in Article 77 of the Property Law. If owners of housings within the planned building area yet outside the building where the owners claim that they are also interested parties, they shall prove that the value of their housings and/or their quality of life have been or may be negatively affected.

     第十一条 业主将住宅改变为经营性用房,本栋建筑物内的其他业主,应当认定为物权法第七十七条所称“有利害关系的业主”。建筑区划内,本栋建筑物之外的业主,主张与自己有利害关系的,应证明其房屋价值、生活质量受到或者可能受到不利影响。

   Article 12   Where in accordance with Paragraph 2, Article 78 of the Property Law, an owner files a lawsuit with a competent people's court to revoke a resolution of the owners' general meeting or the owners' committee on the ground that such resolution infringes on the legitimate rights and interests of the owner or that such resolution fails to comply with the procedures prescribed by law, the owner shall exercise the right of filing-lawsuit within one year as of the date when such owners knows or should have known the resolution is made.

     第十二条 业主以业主大会或者业主委员会作出的决定侵害其合法权益或者违反了法律规定的程序为由,依据物权法第七十八条第二款的规定请求人民法院撤销该决定的,应当在知道或者应当知道业主大会或者业主委员会作出决定之日起一年内行使。

   Article 13   Where an owner applies for the disclosure of or access to the following information and data which shall be disclosed to the owner, the people's court shall uphold such application:

(1) The raising and expenditure of the maintenance fund for the building and the ancillary facilities thereof;

(2) The management rules, procedures for the owners' general meeting as well as resolutions and minutes of meeting of the owners' general meeting and the owners' committee;

(3) Property service contract and information on the utilization of and profit from the common parts;

(4) The disposition of the parking places and garages within the building area which are designated for parking automobiles;

(5) Other information and data that shall be disclosed to the owners.

     第十三条 业主请求公布、查阅下列应当向业主公开的情况和资料的,人民法院应予支持:

    (一)建筑物及其附属设施的维修资金的筹集、使用情况;

    (二)管理规约、业主大会议事规则,以及业主大会或者业主委员会的决定及会议记录;

    (三)物业服务合同、共有部分的使用和收益情况;

    (四)建筑区划内规划用于停放汽车的车位、车库的处分情况;

    (五)其他应当向业主公开的情况和资料。

   Article 14   Where in the absence of due authorization, the developer or other parties occupy or dispose of the common parts of the building owned by the owners, or alter the functions of such parts or use such parts for commercial purposes, and therefore the rightful owners of such common parts apply for abatement of nuisance, restoration to the original state, annulment of the disposal, or compensation for damages, the competent people's court shall support such applications.

Where due to the unauthorized commercial activities in the preceding paragraph, the rightful owners of the common parts require the party responsible for such activities to transfer the profits from such activities, with reasonable cost of such activities deducted, into the special maintenance fund or to use such profits for other purposes jointly determined by the owners, the people's court shall uphold such requests. Regarding the expenditure of the said cost and the reasonableness thereof, the parties responsible for such unauthorized commercial activities shall bear the burden of proof.

     第十四条 建设单位或者其他行为人擅自占用、处分业主共有部分、改变其使用功能或者进行经营性活动,权利人请求排除妨害、恢复原状、确认处分行为无效或者赔偿损失的,人民法院应予支持。

    属于前款所称擅自进行经营性活动的情形,权利人请求行为人将扣除合理成本之后的收益用于补充专项维修资金或者业主共同决定的其他用途的,人民法院应予支持。行为人对成本的支出及其合理性承担举证责任。

   Article 15   Where in violation of applicable laws, regulations, State compulsory standards, management rules, or resolutions that the owners' meeting or owners' committee made in accordance with the law, an owner or any other person commits any of the following offenses, the owner or such person may be deemed as "infringing upon the legitimate rights and interests of other parties" in Paragraph 2, Article 83 of the Property Law:

(1) Where an owner or any other person endangers the building or hinder the normal functions of the building by damaging the load-bearing structure of the building, damaging the power, gas or fire-prevention facilities or failing to comply with relevant operation instructions when using such facilities, or storing hazardous or radioactive items in the building;

(2) Where the owner or any other person damages the outer appearances of the building by destroying or changing the shape or color, etc. of outer walls of the building;

(3) Where the owner or any other person decorates and furnish their housing in violation of applicable provisions; or

(4) Where the owner or any other person adds structures on, reconstruct, occupy, or dig public passageways, roads, places or other common parts in violation of applicable provisions.

     第十五条 业主或者其他行为人违反法律、法规、国家相关强制性标准、管理规约,或者违反业主大会、业主委员会依法作出的决定,实施下列行为的,可以认定为物权法第八十三条第二款所称的其他“损害他人合法权益的行为”:

    (一)损害房屋承重结构,损害或者违章使用电力、燃气、消防设施,在建筑物内放置危险、放射性物品等危及建筑物安全或者妨碍建筑物正常使用;

    (二)违反规定破坏、改变建筑物外墙面的形状、颜色等损害建筑物外观;

    (三)违反规定进行房屋装饰装修;

    (四)违章加建、改建,侵占、挖掘公共通道、道路、场地或者其他共有部分。

   Article 16   Disputes over condominium ownership of buildings that involves such property users of the proprietary parts as tenants and borrowers shall be handled in accordance with this Judicial Interpretation. 

The property users of the proprietary parts, including the tenants and borrowers thereof, shall be entitled to the corresponding rights and assume the corresponding obligations in accordance with applicable laws, regulations, management rules, resolutions made by the owners' general meeting or committee in accordance with the law, as well as the agreement between such property users and the relevant owner of such property.

     第十六条 建筑物区分所有权纠纷涉及专有部分的承租人、借用人等物业使用人的,参照本解释处理。

    专有部分的承租人、借用人等物业使用人,根据法律、法规、管理规约、业主大会或者业主委员会依法作出的决定,以及其与业主的约定,享有相应权利,承担相应义务。

   Article 17   For the purpose of this Judicial Interpretation, the term "developer" shall also include underwriters who sell real estate property in their own names after purchasing unsold pr

     第十七条 本解释所称建设单位,包括包销期满,按照包销合同约定的包销价格购买尚未销售的物业后,以自己名义对外销售的包销人。

   Article 18   The people's court shall base the trial of cases of the condominium ownership involving disputes over ownership of property on applicable laws and administrative regulations.

     第十八条 人民法院审理建筑物区分所有权案件中,涉及有关物权归属争议的,应当以法律、行政法规为依据。

   Article 19   This Interpretation shall come into effect as of October 1, 2009.

Cases involving disputes over the condominium ownership of property that arise after the Property Law comes into effect shall be subject to this Judicial Interpretation.

This Judicial Interpretation does not apply to cases which have been closed before this Judicial Interpretation comes into effect, yet are to be retried upon application by the parties thereto or subject to procedures of judicial supervision as from the implementation hereof.

     第十九条 本解释自2009年10月1日起施行。

    因物权法施行后实施的行为引起的建筑物区分所有权纠纷案件,适用本解释。

    本解释施行前已经终审,本解释施行后当事人申请再审或者按照审判监督程序决定再审的案件,不适用本解释。