Be a good ＂regulator＂ of property service disputes
All-Media Reporter Du Yang of Rule of Law Daily
In 2020, a residential property management company in Beijing sued Gu, the owner of the residential area, to the court, demanding that Gu pay more than 90,000 yuan of property service fees and late fees from 2016 to 2019. During the trial, Song Tong, Gu’s attorney and executive director of Beijing Songtong Law Firm, combined with the evidence, proposed that the property service actually provided by the property company to Gu was lower than the standard agreed in the contract, and advocated reducing the property service fee. In addition, because the property company did not provide services as agreed in the contract, Gu did not maliciously default on the property fee, so there is no need to pay the late payment fee. In the end, the court decided to reduce the cost of a property service of more than 10 thousand yuan, and there is no need to pay late fees.
At present, the masses have put forward higher demands and more expectations for property services, owners’ awareness of safeguarding rights according to law has been continuously enhanced, and disputes concerning the right to know and the price adjustment of property services have emerged constantly, showing a diversified and new trend.
"Lawyers’ participation in solving property service disputes can not only promote rational communication between the parties and the court, but also promote the functional integration of mediation and adjudication, realize the diversion of cases in litigation procedures, effectively save judicial resources, and effectively resolve property service disputes at the source." Liu Jingkun, a professor at China University of Political Science and Law, told the reporter of Rule of Law Daily.
With a clear legal basi
Are the problems such as the occupation of residential green space and the illegal construction by owners belonging to the category of property management? What is the boundary of management? Hong Bijing, a lawyer of Fujian Sanshan Law Firm, told the reporter that the above problems were controversial in the past, and now lawyers can directly solve the disputes according to the management obligations of property service enterprises stipulated in Article 942 of the Civil Code.
Bao Hua, a lawyer of Beijing Hairun Tianrui Law Firm, believes that there are many levels of legislation and a long time span in the field of property management. When lawyers intervene in related cases, they need to fully understand the legislative background and legislative purpose to carry out legal services.
In recent years, at the national and local levels, many "good laws" related to property management have been promulgated one after another, further clarifying the rights and obligations between owners and property service enterprises and optimizing the "weapons" for lawyers to maintain fairness and justice.
"For the first time, the Civil Code included the’ property service contract’ as a typical contract, and stipulated the conclusion, dissolution, termination and continued performance of the contract, which made up for some omissions in the past and played an important role in clarifying the boundaries of powers and responsibilities for all parties." Bao Hua said.
Hong Bijing told reporters that with the publication of normative legal documents such as "Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Laws in the Trial of Property Service Disputes", lawyers have a clearer legal basis when they participate in mediation of property service disputes.
Effectively promote source dispute resolution
"I don’t live in this house, why should I pay the property fee?" In December 2021, Yang, from Nanyu Town, Minhou County, Fujian Province, was sued by the property management company of a residential area for failing to pay the property service fee owed from March to August 2018 for a long time, and the late payment fee was more than 2,000 yuan.
After Hong Bijing intervened in this case, on the one hand, he suggested that Yang pay the arrears of property fees, and on the other hand, considering the defects in the selection process of the property company, he coordinated the property company to reduce some fees. After many times of communication and coordination, the two sides reached an out-of-court settlement.
At present, more and more lawyers are involved in the diversified mediation of property service disputes as legal experts, legal consultants and mediators, and have won the trust and recognition of the masses with their unique professional advantages and high-quality legal services, becoming a member of the social mediation pattern and playing an important role.
"Before the property service dispute enters the court, the establishment of a professional mediation mechanism involving lawyers can help the parties to clarify their legal responsibilities, clarify their respective rights and obligations, and promote the proper settlement of disputes." Liu Jingkun believes that for the court, with the help of the litigation source governance mechanism in which lawyers intervene in advance, the background of the case and the actual demands of the parties can be more clearly understood, and then the dispute resolution mechanisms such as mediation and adjudication can be more effectively integrated to ensure the legal and social effects of case handling.
"At present, all localities are using the power of lawyers to optimize the property service dispute resolution mechanism, and the role of lawyers involved in property service disputes and the ways to resolve disputes are gradually diversified." Bao Hua said that this requires lawyers not only to have a dual perspective of paying attention to the plaintiff and the defendant, but also to have the ability to clearly distinguish the boundaries of rights and responsibilities of owners, governments and managers, and to understand the practical operation in the field of property management, so as to propose a feasible mediation plan.
Song Tong said that while lawyers participate in resolving contradictions and disputes, they will also have more understanding and thinking about legal issues related to property service disputes, which is another virtuous circle.
"Lawyers are the’ regulators’ of property service disputes. Even if lawyers are involved, they may not be able to completely resolve contradictions and disputes, but in most cases, they can effectively avoid the escalation of contradictions and disputes." Hong Bijing added.
"Lawyers’ participation in the mediation and handling of property service disputes will help promote the establishment of a system of property management institutions." Liu Jingkun said that lawyers can give full play to their professional advantages, so that property management agencies can find the weak links in daily management in time, and then establish and improve relevant systems in a targeted manner to reduce the occurrence of property service disputes from the source.
Continuously improve the service level
"Thank you for your participation, so that the election norms of the industry committees can proceed smoothly."
In July 2021, the election of the owners’ committee was held in Shangjingyuan Community, Jiang Hao, Shanggan Town, Minhou County. Hong Bijing and his team of lawyers assisted as legal advisers of the town government, and they put forward perfect opinions and suggestions, which were well received by the owners.
In Hong Bijing’s view, lawyers can also optimize the source governance of property service disputes by helping the rule of law. "By participating in the election of the owners’ committee, providing corresponding legal advice and guidance, and promptly educating the owners about the rule of law related to property management, the fairness and justice of the election are ensured, and the rule of law literacy of the owners is also improved, so as to better prevent the occurrence of property service disputes from the source." Hong Bijing said.
"In the process of drafting property service contracts, formulating and implementing government policies, lawyers can play more roles and achieve better linkage with government departments and property companies." Song Tong told reporters that lawyers’ participation in the drafting of property service contracts and supervision of the performance of property service contracts will enable lawyers to have a more intuitive and comprehensive understanding when receiving feedback from the masses and achieve better solutions.
Bao Hua believes that the level of resolving property service disputes reflects the level of social governance to a certain extent, so lawyers should not only have legal knowledge and practical experience in property management, but also have knowledge and experience in community governance, so as to strengthen the social effect of mediating property service disputes.
"We should encourage and guide more lawyers to participate in the mediation of property service disputes." Liu Jingkun suggested that relevant departments should establish a special working mechanism. For common types of property service disputes, we can consider setting up a working procedure for lawyers to participate in mediation to improve the effectiveness of mediation.