Sheng Dian Observation. Huang Ting: "Guangdong Province Property Management Regulations" 2023 revision points review.
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2023.11.29
The current "Guangdong Province Property Management Regulations" (hereinafter referred to as "Guangdong Province Property Management Regulations" 2009) was revised on November 28, 2008 and will come into force on March 1, 2009. On November 23, 2023, the sixth meeting of the Standing Committee of the 14th People's Congress of Guangdong Province deliberated and approved the decision to amend six local regulations including the "Guangdong Province Property Management Regulations. Among them, there are 14 amendments to the "Guangdong Province Property Management Regulations". The important amendments include the delineation of property management areas, the rights of owners and decision rules, the qualifications of members of the industry committee to participate in the election, the validity of the property service contract after the expiration of the property service contract, and the common Part definition, etc.
This article will combine practice to comment on the five main points of the revision of the "Guangdong Province Property Management Regulations" (hereinafter referred to as "Guangdong Province Property Management Regulations of 2023").
2009 Regulations of Guangdong Province on Property Management |
2023 Regulations of Guangdong Province on Property Management |
Article 7, paragraph 1, the property management area shall be delimited according to the scope of the red line map determined by the property construction land planning permit, combined with the common facilities and equipment of the property, community construction and other factors. If the supporting facilities and equipment of the property are shared, it shall be designated as a property management area; however, if the facilities and equipment can be divided and used independently, it may be designated as different property management areas. |
Article 7, paragraph 1, the property management area shall be delimited according to the scope of the red line map determined by the property construction land planning permit, taking into account the common facilities and equipment of the property, the scale of buildings, community construction and other factors. If the supporting facilities and equipment of the property are shared, it shall be designated as a property management area; however, if the facilities and equipment can be divided and used independently, it may be designated as different property management areas. |
A property management area establishes an owners' meeting, and a community can be divided into several property management areas under certain conditions. The "specific conditions" here are the factors for the delimitation of the property management area. The problem of dividing a small area into several property management areas is generally found in residential areas that belong to the same red line map scope determined by a construction land planning permit and are physically separated into different areas (different areas may be divided by municipal roads, etc.).
In practice, the delineation of property management areas will generally consider the scope of land parcels (red line map) [Guangzhou Railway Transportation Intermediate Court (2017) Guangdong 71 Administrative Judgment No. 1666, Guangdong Higher People's Court (2018) Guangdong Administrative Ruling No. 132: in principle, the division of the property management area shall be reasonably determined according to the red line map scope determined by the construction land planning permit and in combination with the common facilities and equipment of the property, the scale of buildings, community construction and other factors. The red line map scope determined by the construction land planning permit is not the only standard for the division of the property management area. The division of the property management area should be conducive to the management and service of the community, and the production, life and daily convenience of residents, it is conducive to the common use of public facilities and cost savings, and is conducive to regional stability and tranquility], shared facilities and equipment [Shenzhen Intermediate People's Court (2017) Guangdong 03 Line Final No. 85 Administrative Judgment: In this case, in the case of disputes over the division of the property management area of the residential area involved, the Nanwan Sub-district Office conducted an on-site investigation, after finding out the fact that the residential area involved in the case is partially connected with the main building of the shop area in Phase 5 and 6, the water supply, power supply and fire fighting facilities are partially shared, and the shared facilities and equipment are managed by a management office of Kaisa Property Management Company, and the two are located in the same parcel red line, the two appellee divided the residential area and the shop area into the same property management area with sufficient basis, in line with the above-mentioned legal provisions], building scale [there is no clear standard within the scope of Guangdong Province, or refer to "the construction area of a property management area is generally not less than 30000 square meters" as stipulated in the implementation opinions of Xiamen Construction Bureau on the division of property management areas], community construction [there is no clear standard within Guangdong Province].
Before this revision, it is 2009 that the consideration of property management area delineation stipulated in the "Guangdong Province Property Management Regulations" is "shared facilities and equipment, community construction, etc.". After this revision, it is clear that the consideration of property management area delineation is "Shared facilities and equipment, building scale, community construction, etc", since the beginning of 2023, the "Guangdong Province Property Management Regulations" and the State Council "Property Management Regulations" (2018 Edition), "Shenzhen Special Economic Zone Property Management Regulations" (2019 Edition) in the property management area delimitation considerations are completely consistent, unified standards. However, the aforementioned delimitation factors are all principled standards, and further practical rules may need to be spied on from various local regulations or relevant judicial precedents.
2009 Regulations of Guangdong Province on Property Management |
2023Regulations of Guangdong Province on Property Management |
Article 22: Where the owners' meeting decides to raise and use special maintenance funds, rebuild or rebuild the building and its ancillary facilities, it shall be approved by the owners whose exclusive part accounts for more than 2/3 of the total area of the building and more than 2/3 of the total number of owners; Deciding on other major matters related to common and joint management rights shall be approved by the owners whose exclusive part accounts for more than half of the total area of the building and more than half of the total number of owners. The area and number of owners shall be determined as follows: (I) The area of the exclusive part shall be calculated according to the construction area; the total area of the building shall be calculated according to the sum of the area of the exclusive part. (II) The number of owners of the exclusive part that has been sold by the construction unit, one household is calculated as one person; the exclusive part that has not been sold by the construction unit is calculated as one person; and the total number of owners is calculated as the sum of the two.
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Article 22 The following matters shall be decided jointly by the owners: (1) to formulate and amend the rules of procedure of the owners' assembly; to (II) and amend the management statute; to (III) elect or replace the members of the owners' committee; to (IV) select and dismiss the property service enterprise or other managers; to (V) the use of the maintenance funds of the building and its ancillary facilities; to raise the maintenance funds of the building and its ancillary facilities; (VII) the reconstruction and reconstruction of the building and its ancillary facilities; (VIII) change the use of the common parts or use the common parts to engage in business activities; (IX) other major matters related to the right of common and joint management. The joint decision of the owners shall be voted on by the owners whose exclusive part accounts for more than 2/3 of the area and the number of owners whose number accounts for more than 2/3. Decisions on the matters specified in Items 6 to 8 of the preceding paragraph shall be approved by the owners whose voting area is more than 3/4 and the number of owners whose voting is more than 3/4. Decisions on other matters in the preceding paragraph shall be approved by more than half of the owners of the exclusive part of the voting area and more than half of the number of owners participating in the voting. The area and number of owners shall be determined as follows: (I) The area of the exclusive part shall be calculated according to the area recorded in the real estate register; if the real right has not been registered, it shall be temporarily calculated according to the measured area of the surveying and mapping institution; if it has not been measured, it shall be temporarily calculated according to the area recorded in the contract for the sale of the house; the total area of the building shall be calculated according to the sum of the areas of the exclusive part. (II) The number of owners shall be calculated on the basis of the number of proprietary parts, and one proprietary part shall be calculated on the basis of one person; but the part of the construction unit that has not yet been sold or sold but has not yet been delivered, and the same buyer owns more than one proprietary part, shall be calculated on the basis of one person; the total number shall be calculated on the basis of the sum of the two. |
With regard to the matters and decision rules jointly decided by the owners, since Article 278 of the Civil Code, which came into effect on January 1, 2021, has been clearly stipulated in Article 278 of the Civil Code, since then, the competent departments of urban and rural housing construction and the owners' assembly of the community have basically been implemented in accordance with the provisions of Article 278 of the Civil Code. The revision of this part of the content is due.
The Civil Code does not mention the method of determining the area of the exclusive part and the number of owners, but the method of determining the property Management regulations of Guangdong Province in 2009 has caused a lot of differences and disputes in practice because of its lag. This revision has checked and filled the gaps, which can be described as detailed and comprehensive, which is convenient for unified implementation in practice.
Point 3: Owners who fail to pay special residential maintenance funds and property service fees on time have the right to stand for election as members of the Owners Committee.
2009 Regulations of Guangdong Province on Property Management |
2023 Regulations of Guangdong Province on Property Management |
Article 25 The members of the owners' committee shall be elected from among the owners who meet the following conditions: (1) have full capacity for civil conduct; (II) abide by the law, be enthusiastic about public welfare undertakings, have a strong sense of responsibility, have strong credibility and organizational ability; (III) abide by the management regulations,Fulfill the owner's obligations and pay the residential special maintenance funds and property service fees on time.,There is no act that harms the public interest; the (IV) himself and his close relatives do not hold positions in the enterprises and their subordinate units that provide property services for the property management area. |
Article 25 the members of the owners' committee shall be elected from the owners who have the following conditions: (1) have full capacity for civil conduct; (II) abide by the law and discipline, are enthusiastic about public welfare undertakings, have a strong sense of responsibility, have strong credibility and organizational ability; (III) abide by the management regulations and do not harm the public interest; (IV) themselves and their close relatives do not hold posts in enterprises and their subordinate units that provide property services for the property management area. |
Article 30, paragraph 1, members of the owners' committee shall abide by laws, regulations and management regulations, and shall not commit the following acts: (1) misappropriating or embezzling the common property of the owners; (II) soliciting or illegally accepting benefits or remuneration provided by construction units, property service enterprises or interested owners; (III) taking advantage of their positions to require property service enterprises to reduce or exempt property service fees; (IV)Refusal to pay property service fees in violation of the property service contract(V) the disclosure of the owner's information or the use of the owner's information for activities unrelated to property management; (VI) other acts that harm the common interests of the owners or may affect their fair performance of their duties. |
Article 30, paragraph 1, members of the owners' committee shall abide by laws, regulations and management regulations, and shall not commit the following acts: (1) misappropriating or embezzling the common property of the owners; (II) soliciting or illegally accepting benefits or remuneration provided by construction units, property service enterprises or interested owners; (III) taking advantage of their positions to require property service enterprises to reduce or exempt property service fees; (IV) divulge owner information or use owner information for activities unrelated to property management; (V) other acts that harm the common interests of the owners or may affect their fair performance of their duties. |
This part of the revised content should be the biggest highlight of the 2023 "Guangdong Province Property Management Regulations. In fact, the Standing Committee of the National People's Congress has emphasized in the "Report of the Legislative Affairs Committee of the Standing Committee of the National People's Congress on the Work of Filing and Review in 2021" issued on December 24, 2021 that "3. insist on'mistakes must be corrected'. Effectively safeguard the unity of the country's rule of law. Some local laws and regulations stipulate that one of the prerequisites for community owners to participate in the election of members of the owners' committee is that they must 'pay property fees and other related fees on time '. Some citizens have proposed a review of this provision. In our review, the owners' committee is an autonomous owners' organization and its eligibility to stand for election is based on the status of the owner. The owner's failure to pay the property management fee on time is a civil breach of contract by the owner in violation of the property service contract. This local regulation restricts the eligibility of owners to stand for election to the owners' committee, which conflicts with the relevant provisions of the Civil Code. After communication, the formulation authority has made amendments to the relevant provisions."
Before the promulgation of the "Guangdong Province Property Management Regulations" in 2023, the housing and urban-rural construction authorities in some areas of Guangdong Province still required community owners to participate in the election of members of the owners' committee. One of the prerequisites is to "pay property fees and other related expenses on time". The author recently encountered this problem when applying for the establishment of an owners' meeting and electing the establishment of the first owners' committee to provide special legal advisory services for the owners of a certain city in Guangdong Province. When the author revised the rules of procedure (draft) of the owners' Congress of the community, according to the opinions of the owners' representatives, combined with the provisions of the Civil Code, the report of the Legislative Affairs Committee of the standing Committee of the National people's Congress on the work of filing and examination in 2021, and the property Management regulations of the State Council, the content of "paying property service fees on time" under the conditions for membership of the industry committee has been deleted. However, the deletion was not adopted by the Community Construction Office of the local people's government, and the obstacle was to 2009 Article 25 of the property Management regulations of Guangdong Province. To this end, the author issued a "legal opinion on whether it is necessary to include" timely payment of property service fees "in the rules of procedure of XX community as a condition for membership of the industry committee" to the community construction office of the local people's government. the final result was still unclear before the release of the Guangdong property management regulations in 2023.
2023, the relevant content has been deleted from the "Guangdong Province Property Management Regulations", which is equivalent to clarifying that owners who fail to pay residential special maintenance funds and property service fees on time also have the right to stand for election as members of the industry committee. Since then, related issues should no longer be controversial.
Point 4: If the property service contract is not renewed after the expiration of the contract, the original property service contract shall continue to be valid and the service period shall be irregular.
2009 Regulations of Guangdong Province on Property Management |
2023 Regulations of Guangdong Province on Property Management |
Article 50, paragraph 4, if the term of the property service contract expires and the owners' meeting does not make a decision on selection or renewal, and the original property service enterprise voluntarily continues to provide services in accordance with the original contract, the property service contract will automatically continue until the owners' meeting makes a decision on selection or renewal. |
Article 50, paragraph 4, where the term of the property service contract expires and the owners' assembly fails to make a decision on selection or renewal, the original property service enterprise voluntarily continues to provide services in accordance with the original contract,The original property service contract continues to be valid, but the service period is indefinite.. |
2009 "Guangdong Province Property Management Regulations" For the "Property Service Contract" signed by the owners' meeting and the property service company, after the expiration of its term, if the owners' meeting has not made a decision and the original property service company is willing to continue to perform, directly Administrative regulations stipulate that "the property service contract will automatically continue until the owners' meeting makes a decision on selection or renewal", the original intention should be to ensure the normal provision of residential property services, but the protection of the rights and interests of the owners' assembly and the property service enterprises is unbalanced-when the term of the "property service contract" expires, if the original property service enterprise is willing to continue to perform, it must perform "until the owners' assembly makes a decision on selection or renewal", and there is no chance to choose again (in practice, during this period, the remuneration income and cost expenditure of the original property service enterprise are not balanced, and even losses occur), while the owners' meeting has the right to unilaterally make a decision on the selection or renewal of employment at any time during this period. 2023, the "Guangdong Province Property Management Regulations" revised this to "the original property service contract continues to be valid, but the service period is irregular". The legislative spirit is the same as the method of determining the validity of the "House Lease Contract" after the expiration of the term. It balances the free choice rights of both the owners' assembly and the property service company, and embodies the principle of fairness.
2009 Regulations of Guangdong Province on Property Management |
2023 Regulations of Guangdong Province on Property Management |
Article 70 The term "common parts" as mentioned in these Regulations refers to the main load-bearing structural parts of the house (including foundations, internal and external load-bearing walls, columns, beams, floors, roofs, etc.), corridors, stairwells, elevator shafts, property service rooms, and exterior walls of the house that are shared by the owners. The term "shared facilities and equipment" as mentioned in these regulations refers to water supply and drainage pipelines, water tanks, pressurized water pumps, elevators, antennas, lighting facilities, power supply lines, gas (natural gas) pipelines, fire-fighting facilities, ditches, pools, wells, public welfare sports and other facilities and equipment in the property area. |
Article 70 The common parts referred to in these Regulations refer: (I) common parts, common facilities and equipment of buildings within the building area, including basic structural parts such as foundation, load-bearing structure, exterior wall and roof of the building, public access parts such as passages, stairs and lobbies, auxiliary facilities and equipment such as fire fighting and public lighting, and structural parts such as refuge floor, equipment floor or equipment room; (II)Roads within the building area, except those belonging to urban public roads. The green space within the building area, except those that belong to the urban public green space or those that are expressly owned by individuals. Other public places, public facilities and property service houses within the building area; (Ⅲ)Occupying parking spaces on roads or other sites shared by the owners for parking cars; (Ⅳ)Other places and facilities within the building area that are not the exclusive part of the owner, the municipal public part or other rights holders. The land within the building zone shall be jointly enjoyed by the owners in accordance with the law, except for the planned land occupation of the entire building or the land occupation of urban public roads and green spaces that belong to the owners. Where laws and administrative regulations provide otherwise, such provisions shall prevail. |
The provisions on the "common part" of the owner in the Civil Code are scattered in Article 261, which stipulates that "the owner shall have the ownership of the exclusive part of the building, such as the residence and the business house, and the common part other than the exclusive part shall have the right of common ownership and joint management". Article 274 stipulates that "the roads within the building area shall be owned by the owners, except those belonging to the urban public roads. The green space within the building division belongs to the owners, except for those that belong to the urban public green space or that expressly belong to individuals. Other public places, public facilities and property service rooms within the building area shall be owned by the owners" and Article 275, paragraph 2, stipulates that "the parking spaces occupied by the roads or other places shared by the owners for parking cars shall be owned by the owners", without systematic provisions.
2009 The two concepts of "shared parts" and "shared facilities and equipment" are used to cover the common parts of the owners in the Guangdong Province Property Management Regulations. There are at least two shortcomings. One is that the two concepts of "shared parts" and "shared facilities and equipment" are not consistent with the "common parts" in the original "Property Law" and the current "Civil Code; second, the two concepts of" common parts "and" common facilities and equipment "do not fully cover all categories of common parts of the community in practice.
The concept and connotation of the common part are further enriched and perfected 2023 to the Regulations of Guangdong Province on Property Management. First of all, in 2023 with Article 70, paragraph 1, of the Guangdong Province Property Management Regulations, the real right of the common part is defined, specifically including the deletion and adjustment of the original Article 70 of the 2009 Guangdong Province Property Management Regulations as Item 1 of Article 70, paragraph 1, of the 2023 Guangdong Province Property Management Regulations. The relevant provisions of the Civil Code on the "common part" of owners are systematically sorted out, as items 2 and 3 of paragraph 1 of article 70 of the 2023 "Guangdong province property management regulations"; Item 4 of paragraph 1 of article 70 of the 2023 "Guangdong province property management regulations" defines "places and facilities" excluded from specific ownership as components of common parts by "exclusion method + bottom-up method. Secondly, in 2023 with Article 70, paragraph 2 of the property Management regulations of Guangdong Province, it is clear that the owners jointly enjoy the right to the use of construction land for the land within the common part of the building area. Finally, 2023 to the provisions of Article 70, paragraph 3, of the Guangdong Province Property Management Regulations, "if there are other provisions in laws and administrative regulations, from their provisions", it fundamentally solves the problem of the application of this local regulation when there is a conflict with the laws and administrative regulations above it. The 2023 "Guangdong Province Property Management Regulations" provides a more complete combing and definition of the concept and connotation of the common part, which is conducive to the settlement of relevant property and property rights disputes within the scope of Guangdong Province. It is worth mentioning that the 2023 "Guangdong Province Property Management Regulations" and "Shenzhen Special Economic Zone Property Management Regulations" (2019 edition) define the common parts, the content of the text is different, but the connotation is basically the same.

- Ting Wong Senior Partner Solicitor-
(Practice period: January 2012 to present)
[Practice background brief]Graduated from the Law School of Shenzhen University, currently a senior partner of Shengdian Law Firm, deputy secretary of the Shengdian Party Committee, head of the Shengdian bankruptcy administrator (second level), deputy editor of Shengdian Lawyer Review (Law Publishing House), Maoming Arbitrator of the Arbitration Commission, member of the Corporate Legal Professional Committee of the Guangdong and Shenzhen Lawyers Associations, and former member of the Business Development Committee of the Shenzhen Bankruptcy Administrators Association. Now it is China Coal Energy Group Co., Ltd. (a first-level state-owned enterprise of the State Council), Shenzhen Baoan District Investment Management Group Co., Ltd. (a first-level state-owned enterprise of Baoan District), Shenzhen Longgang Financial Investment Holding Co., Ltd. (a first-level state-owned enterprise of Longgang District), Shenzhen Water Planning and Design Institute Co., Ltd. (301038.SZ, a state-owned listed company), China Resources Property Technology Service Co, shenzhen Enterprise Evaluation Association (SZEEA), Shenzhen Dingcheng Technical and Economic Evaluation Center experts, with securities qualifications, private equity fund senior management qualifications, independent directors of listed companies.
[Principal Areas of Practice]Corporate legal affairs (including consultants, equity investment and financing and dispute resolution, shareholder/partner interest dispute resolution, commercial transactions, etc.), corporate compliance (including central enterprises, state-owned enterprises operating compliance, anti-commercial bribery, contract management, data and other compliance system construction), corporate bankruptcy liquidation (including reorganization, reconciliation, compulsory liquidation and debt restructuring), civil and commercial dispute resolution (including commercial contracts, foreign-related contracts, real estate rights, transactions and leases, securities misrepresentation, private equity funds, etc.).
[Property sector promotion]Lawyer Huang Ting has rich experience in the legal fields of property service, property dispute resolution, property right (house, parking space, land) confirmation and lease dispute, and has made remarkable achievements. In different periods, he has served as the legal consultant or attorney of the owners' meeting (industry committee), owner (owner representative), property management company and real estate development Co., Ltd., Familiar with the operating rules, interest demands and thinking mode of all parties. He has served as the perennial legal adviser of the property management company and the community industry committee for a long time, served as the special adviser for the owners to apply for the establishment of the owners' assembly and elect the first owners' committee in accordance with the law, and was employed to provide special legal services for the real estate development co., ltd.; he has been or is currently accepting the entrustment of the owners' assembly and the industry committee to act as an agent for parking space dispute [including the case, after the second trial (2021) and retrial (2022-2023), we won parking spaces in the residential area for all owners], disputes over owners' cancellation rights, and provided special services for updating old elevators in the residential area. Once or now entrusted by a property management company or a real estate development co., ltd. to act as an agent for property contract disputes; Accept the entrustment of the owner's representative to provide legal services for the delimitation of property management areas, and act against the industry committee and property management companies to file. He was entrusted by a state-owned enterprise (2017-2023) to act as an agent to confirm that the land lease contract was partially invalid for more than 20 years. After winning the case in the first instance and maintaining the original judgment in the second instance (discussed by the Trial Committee of the Intermediate People's Court), he successfully achieved the litigation goal through the execution procedure.
[Representative Honor Received]The "case of Xu Moumou's additional debtor company's withdrawal of capital contribution shareholders and the transfer of unfunded equity shareholders as the executed person" was named "2022 Shenzhen lawyer business typical case" by Shenzhen Lawyers Association in 2023 ". The "Shenzhen Beak Toe Yu Venture Capital Enterprise (Limited Partnership) Bankruptcy Liquidation Case" was rated as "Top Ten Enterprise Bankruptcy Typical Cases 2020-2022" by the Shenzhen Association of Bankruptcy Administrators in 2023 ". In 2023, it was named as an outstanding member of the 2022 Professional Committee (Company Legal Professional Committee) by the Shenzhen Lawyers Association. In 2022, he was named "Outstanding Young Lawyer" by the Shenzhen Lawyers Industry Committee of the Communist Party of China and the Shenzhen Lawyers Association ". In 2014 and 2021, he was awarded the title of "Excellent Communist Party Member" by the Shenzhen Lawyers Industry Committee of the Communist Party of China, and was awarded the title of "Excellent Party Worker" in 2016. It has been awarded the "Shenzhen Industrial Development and Innovative Talent Award" by the Shenzhen Human Resources Public Service Center four times ". He has been awarded Shengdian's "Outstanding Young Lawyer Award", "Professional Team Award" and "Professional Contribution Award" for many times, and was named "Professional Model" and "Dedication Model" at the celebration of the 20th anniversary of Shengdian's establishment ".
[Contact Information]
E-mail: huangting@shengdian.com.cn