Li Guogang

Brief introduction of the case

Plaintiff XXX Co., Ltd. (hereinafter referred to as the developer)

Defendant Yu Moumou (hereinafter referred to as the owner)

On February 8, 2113, when the developer applied for the Construction Project Planning Permit for the Xiaoshan Meizhiyuan real estate developed by him, he paid in advance the property maintenance of more than 1,111 houses in the whole community. Since 2114, the owners, including the defendant, have successively signed the Commercial Housing Sales Contract with the developers to purchase commercial housing. When the house was handed over in 2115, the developer issued the Notice of Hand-over to the owners, informing each owner to pay the property maintenance fund ranging from several thousand yuan to more than ten thousand yuan. Some owners have gone through the handover procedures according to the Delivery Notice, and some owners think that the property maintenance fund has been included in the house price according to the document Xiao Jia [2113] No.76 of the competent government department, and they are unwilling to pay the property maintenance fund after taking over the house. The two sides then caused a dispute. In the case of unsuccessful negotiation, the developer filed a lawsuit against some owners, demanding that the owners bear the property maintenance fund.

in addition, after the developer sued the Xiaoshan District People's Court in Hangzhou for the case of property maintenance fund as plaintiff and owner, the owner's representative who paid the property maintenance fund also sued the developer in Xiaoshan District People's Court in Hangzhou, demanding that the developer return the property maintenance fund.

Controversy focus

Whether the developer collects the property maintenance fund from the owner is a repeated charge, that is, whether the property maintenance fund is included in the house price.

1. Main opinions of developers

1. Paying the property maintenance fund is the legal obligation of the owners; 2. The property maintenance fund is not included in the sales revenue and does not belong to the category of house price. The house price agreed by both parties does not include the property maintenance fund; 3. The property maintenance fund is a collection fee, and the owner shall pay the fee to the developer according to law.

II. Main viewpoints of the owner

1. Xiao Jia [2113] No.76 is a mandatory document of government functional departments, and the developer has not ruled out the application of this document, so it is the developer's obligation to implement it; 2. According to Xiao Jia [2113] No.76 document, the owner purchased the commercial housing with the market-adjusted price from the developer, and the one-time buyout price should be implemented, that is, the property maintenance fund has been included in the house price, and the owner has paid it, so there is no fact of "refusal to pay", so the developer has no right to ask the owner to pay the property maintenance fund again; 3. According to the trading habits and historical evolution of commercial housing in Xiaoshan District, the property maintenance fund is actually paid by the developer.

Third, the idea of agency

Lawyers are perennial legal advisers to developers. They should not only safeguard the interests of the developers in the consulting unit, but also prevent the legitimate interests of the owners from being damaged, so as not to cause social conflicts. It involves the vital interests of more than 1,111 owners, and by extension, it involves the property maintenance fund of all owners in Xiaoshan, Hangzhou and the whole province. For developers, because it involves tens of millions of households, it is a failure, a victory and a victory. Therefore, handling cases strictly according to law is the most important thing to balance the interests of all parties. The lawyer accepted the entrustment of the developer, participated in providing legal opinions on all aspects of the whole building, and represented the litigation in the first and second instance of this case, forming the following main agency opinions:

The property maintenance fund is not included in the sales income and does not belong to the category of house price. The unit price of the house agreed in the Commodity House Sales Contract signed by both parties does not include the fees collected and remitted by the property maintenance fund.

1. according to article 5 of the measures for the administration of maintenance funds for facilities and equipment used in residential areas, article 5 of the interim measures for the administration of special funds for property maintenance in residential areas in Zhejiang province, and article 2 (1) of the interim measures for the administration of property maintenance funds in Xiaoshan district of Hangzhou, the property maintenance funds are not included in the sales income of commercial houses. State Taxation Administration of The People's Republic of China's "Notice on Business Tax Related to Collection Fees of Property Management Enterprises" (1998), "Notice on Exemption of Business Tax for Special Housing Maintenance Funds" and other documents all exempt property maintenance funds collected by developers as development enterprises from business tax. If the property maintenance fund is included in the house price, business tax should be levied. Therefore, developers claim that collecting property maintenance funds from owners does not belong to sales revenue and does not belong to the category of house prices.

2. The owner thinks that the unit price of the house includes the property maintenance fund, and it is inconsistent with the law based on Article 3 of Several Provisions of the Construction Bureau of Xiaoshan District Price Bureau of Hangzhou Municipality on Further Regulating the Sales Behavior of Commercial Houses (hereinafter referred to as "Several Provisions").

(1) The western area of Meizhiyuan developed by the developer is an auction land, which is a commercial house with market-regulated price. The one-time buyout price in Several Provisions should be understood as the unit price of the house agreed by both parties to the contract will not be changed. "Several Provisions" in the one-time buyout price or pre-sale price should refer to the housing unit price.

(2) Article 3 of Several Provisions stipulates that "the settlement price (house price) will not be refunded more and the house price will not be replenished less when the commercial house is delivered for use" should be understood as applicable to the sale by suite, but it is not applicable to the house price settled according to the construction area selected by the owner of this case. There will be differences between the contract area and the property right area, which are recognized by the law and the agreement between the two parties, and in fact, the settlement of house payment caused by the area difference has been dealt with.

(3) Article 3 of Several Provisions stipulates: "The agreed price includes all kinds of equipment and facilities related to the use function of commercial housing and all kinds of legal and compliant agency fees (including property maintenance funds, etc.). Without the approval of the price department, no other fees may be charged to the buyers." This provision is illegal for the following specific reasons: setting administrative licensing and examination and approval procedures without authorization, which violates the relevant provisions of the Administrative Licensing Law; Conflicts with many superior local regulations, administrative rules and administrative regulations; It does not belong to administrative regulations or normative documents and has no legal status. This part of the "Several Provisions" is in contradiction with the Interim Measures for the Management of Property Maintenance Funds in Xiaoshan District of Hangzhou, which came into effect on March 22, 2114, because of its lack of legitimacy, which restricts the parties' freedom of contract. According to the provisions of Article 6 of the Interim Measures for the Management of Property Maintenance Funds in Xiaoshan District of Hangzhou, this part of the provisions has been abolished, and it was actually included in the scope of clearing invalid documents and abolished.

(4) Several Provisions are neither an integral part of the contract between the two parties, nor a single or unilateral obligation of the developer, nor are they legally binding. The owner thinks that the unit price of the house includes the property maintenance fund, and there is no legal or factual basis.

3. The unit price of the Commodity House Sales Contract signed by both parties does not include the fees collected and remitted by the developers such as the property maintenance fund.

(1) Both owners have agreed to pre-sell the house, Room 312, Unit 2, Building 14, and the pricing method and price in Article 4 of the Commodity House Purchase and Sales Contract. According to the construction area, the unit price of the commodity house is RMB 4,973.11 yuan per square meter, with a contract area of 114.21 square meters, with a total price of RMB 4,973× 114.21 = 518,236 yuan. The content agreed by both parties does not violate any mandatory or prohibitive provisions of laws and administrative regulations, and shall be valid.

(2) the meaning of the unit price of commercial housing, according to the provisions of Zhejiang Commodity Housing Price Composition and Price Behavior Code, which was implemented by Zhejiang Price Bureau on April 1, 1999, the price of commercial housing consists of the following items: ① land use right acquisition fee; ② Housing development cost; ③ Expenses during residential development; 4 profit; 5 taxes; ⑥ Price difference of commercial housing. The fees collected and remitted by the property maintenance fund, coal management fee, IC card function fee, stamp duty, deed tax, and property certificate fee are not in the price range of commercial housing stipulated in this document, so the unit price of commercial housing agreed by both parties does not include the fees collected and remitted by the property maintenance fund.

(3) The owner has paid off the collection and remittance fees not stipulated in other contracts, and only thinks that the property maintenance fund is included in the unit price of the house. According to the logic of the owner, other paid collection and remittance fees have been included in the unit price of the house and should also be borne by the owner, which is contrary to the facts and obviously absurd.

trial judgment

this case has been tried in the first and second instance, which all supported the main point of view of the agent.

judgment of first instance

on February 6, 2116, Xiaoshan district people's court made a civil judgment (2115) Xiao min yi Chu zi No.4169.

the Xiaoshan district people's court of Hangzhou believes that the property maintenance fund is a reserve fund dedicated to large and medium-sized repair, renewal and reconstruction projects of property facilities and equipment after the warranty period expires, and it is not included in the income from commercial housing sales. In this case, when the developer and the owner concluded the commercial housing sales contract, they agreed on the unit price of the commercial housing, but did not agree on the collection method of the property maintenance fund, and the unit price of the commercial housing did not include the property maintenance fund; Now the developer has paid the fund to the relevant departments on behalf of the owner according to the relevant regulations, and the owner has obtained the relevant rights according to law. Following the principle of fairness and equal compensation, the owner should pay the property maintenance fund to the developer. The owner thinks that according to Xiao Jia [2113] No.76 document, the developer and the owner agreed in the Commercial House Sales Contract should be a one-time buyout price, but this document is not mandatory by the state, and the owner has not proved that the property maintenance fund has been included in the unit price of the commercial house, so the owner's argument is not based on enough evidence and will not be adopted. Accordingly, in accordance with the provisions of Article 4 of the General Principles of the People's Republic of China and the Civil Law of the People's Republic of China, it is decided that the owner shall pay the developer's property maintenance fund within ten days after this judgment takes effect.

the judgment of the second instance

the owner refused to accept the judgment of the first instance and appealed. On May 7, 2116, Hangzhou Intermediate People's Court made a civil judgment (2116) No.472.

The Hangzhou Intermediate People's Court held that the sales contract and related agreement concluded between the owner and the developer on the sale and delivery of the commercial housing involved were legal and valid, with proper subject, true intention and complete contents, and did not violate the prohibitive provisions of laws and regulations; The sales contract concluded by both parties adopts the model text (revised edition of Zhejiang Province in 2111) supervised by Zhejiang Provincial Construction Department and Zhejiang Provincial Administration for Industry and Commerce, and there is no agreement in this contract and related agreements that the house price (unit price or total price) includes the property maintenance fund, etc. The contents of the contract and agreement and the performance facts of both parties show that the two parties adopt the transaction mode of determining the unit price, estimating the housing area and total price at the time of pre-sale, and settling the house according to the actual construction area within 3% error, which is also preset in the contract model text. Although Article 3 of Xiao Jia [2113] No.76/Xiao Jianshe Fang [2113] No.143 "Several Provisions of Xiaoshan District Price Bureau and Construction Bureau of Hangzhou on Further Standardizing Commercial Housing Sales Behavior" issued by Xiaoshan District Price Bureau and Construction Bureau on May 23, 2113 stipulates that "the sale of commercial housing can be subject to one-time buyout price or pre-sale price. Where the market-regulated price of commercial housing is implemented, the one-time buyout price shall be implemented. After the price is agreed by both parties, the conditions for sale and purchase shall be stipulated in the purchase contract (agreement), and the rights and obligations of both parties shall be clarified in accordance with the principle of * * * *, and the settlement price (house payment) will no longer be refunded more and replenished less when the commercial housing is delivered. The agreed price includes all kinds of equipment related to the use function of commercial housing and all kinds of legal and compliant agency fees (including property maintenance funds, etc.). Without the approval of the price department, no other fees may be charged to the buyers. " However, the two bureaus made it clear in the letter of "Reply on Letters and Visits of Shunfa Meizhiyuan Property Maintenance Fund" on September 22, 2115 that "the property maintenance fund is a collection fee, and the specific collection method is determined by the construction unit and the purchaser." First of all, as the publisher of Xiao Jia [2113] No.76/Xiao Jianshe Fang [2113] No.143, it has been clearly stated in his reply letter that the collection method of property maintenance fund is agreed by the parties, not enforced by the administration; Moreover, the transaction mode and characteristics of "one-time buyout price" expressed in Article 3 of Xiao Jia [2113] No.76/Xiao Jianshe Fang [2113] No.143 are different from those shown in the transaction mode of this case, and the provisions of this article and related contents are not reflected in the contracts and agreements between the two parties; Therefore, the owner thinks that the transaction mode of both parties in this case is the view of "one-time buyout price" expressed in the regulations, which is not adopted by our hospital; Secondly, there is a legal basis for the developer to collect the property maintenance fund, which was also confirmed by the Price Bureau and Construction Bureau of Xiaoshan District, Hangzhou in the above reply letter; Thirdly, regarding the commercial housing transaction in this case, the owner has no evidence to prove that the property maintenance fund has been included in the agreed housing price. Therefore, the original judgment supports the developer's claim to ask the owner to pay the property maintenance fund, which is in line with the law and facts and is not improper; The owner's appeal request is not supported by our court. In accordance with Article 153, Paragraph 1 (1) of the Civil Procedure Law of the People's Republic of China, the appeal was dismissed and the original judgment was upheld.