Analysis of the legal system of the joint management right of the divided ownership of buildings in the Chinese mainland - the legal framework and practical guidelines with the Civil Code as the core
Author | Attorney Wang Feng
Legal Foundations and the System of Norms
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In China, the system of co-management rights in building condominium ownership is centered on the Property Law section of the Civil Code, with the Regulations on Property Management and judicial interpretations serving as its implementing rules. Its core basis is:
1. Civil Code:
(1)Article 271:Establish the co-ownership and joint management rights of the owners over the common areas.
(2)Article 278: Clearly define the scope of matters requiring joint decision-making by all owners and the corresponding voting rules.
(3)Article 286: Confers upon the owners’ assembly and the owners’ committee the authority to manage matters of common interest.
2. Judicial Interpretation:
Articles 1–3 of the “Interpretation of the Supreme People’s Court on Several Issues Concerning the Application of Law in the Trial of Disputes over Condominium Ownership” (as amended in 2020) clearly define the scope of “owners” and the criteria for determining the distinction between exclusive-use and common areas.
3. Administrative regulations:
The Regulations on Property Management stipulate the procedures for establishing the owners’ assembly, its rules of procedure, and the selection of property management service providers.
The Subjects and Objects of Co-management Rights
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1. Scope of the subject:
(1)Owner:A civil subject that has lawfully obtained ownership of the exclusive portion of a property or has registered a change in its property rights, including natural persons, legal persons, and non-corporate organizations.
(2)Exceptional circumstances:A person who does not hold registration but actually occupies and uses a house based on civil legal acts such as purchase or sale, if meeting the requirements of structural independence and other relevant criteria, shall be recognized by judicial interpretation as having the status of a property owner (see Article 1 of the Supreme People’s Court’s Interpretation).
2. Object of the right:
(1) Common areas:Includes roads and green spaces within the property development area (excluding those designated as municipal public spaces or explicitly owned by individuals), property service premises, public facilities and equipment, as well as ancillary facilities such as elevators, refuge floors, and equipment floors.
(2) Scope of management authority: The repair, use, distribution of income, and decision-making on major matters concerning the common areas.
Mechanism for Exercising Joint Management Rights
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1. Autonomy Framework:
(1) Homeowners’ Association:The supreme decision-making body, responsible for formulating rules of procedure, selecting and hiring property service enterprises, managing repair funds, and other related matters.
(2) Homeowners’ Committee:The executing agency represents the owner in signing contracts with the property management company and oversees contract performance.
2. Voting Rules:
(1) Double majority rule:More than two-thirds of the owners by exclusive-use area and more than two-thirds of the owners by headcount must participate; for major matters (such as renovation or reconstruction), “double-majority” approval is required among the participating owners—more than half by both area and number of owners.
(2) Prohibition of the abuse of voting rights:Resolutions shall not infringe upon the exclusive ownership rights of other owners or the public interest (Article 280 of the Civil Code).
3. Special Restrictions:
Issue of restricting voting rights due to overdue payments:The provision in local regulations that “failure to pay property management fees results in the loss of voting rights” (as found in certain local ordinances) violates Article 207 of the Civil Code, which enshrines the principle of equal protection of property rights. The Legal Work Committee of the National People’s Congress has explicitly mandated its removal (see “Review Opinions of the NPC Legal Work Committee on Restrictions on Owners’ Voting Rights”).
Controversies and Key Points of Judgment in Judicial Practice
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1. Typical Case of Rights Conflict
(1) Case of installing a cooling tower on the roof:A certain company installed facilities on a shared rooftop without the owners’ consent. The court determined that this constituted an infringement of the co-owners’ right to common management and ordered the removal of the installations (China Court Annual Cases, 2018, Case No. 56).
(2) Dispute over the ownership of underground parking spaces:If a developer agrees to retain ownership of parking spaces but fails to register the division of property rights, the court will rule that such spaces are jointly owned by all property owners (Article 275 of the Civil Code).
2. Principles of Judgment
(1) Co-ownership takes precedence over commercial use:Commercial activities must comply with statutory procedures and shall not impair the common interests of all owners.
(2)Legality review of the procedure:The legality of a resolution adopted by the owners’ assembly is subject to compliance with procedural requirements, including proper notification and voting thresholds; otherwise, the resolution may be revoked (Article 278 of the Civil Code).
Frontier Developments and Practical Recommendations
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1. Changes in the Era of the Civil Code
(1) Transparency of public revenue: The allocation of income from common areas (such as advertising fees and venue rental) must be made public and shall be subject to the management of the repair fund or decisions by the owners’ assembly.
(2) Simplified procedures for the use of emergency repair funds:Clearly stipulates that the voting procedure may be omitted in emergency situations.
2. Guidelines for Legal Practice
(1) Review of the compliance of parliamentary procedures:Ensure that the procedures for convening and voting at the owners’ assembly comply with statutory quorum requirements and public notice obligations to prevent resolutions from being invalidated.
(2) Documentation of ownership rights for common areas:Review and organize planning documents, property ownership certificates, and as-built survey reports in advance to clearly define the scope of common areas.
(3) Dispute Resolution Path:First, seek resolution through the owners’ self-governance procedures; where necessary, file a lawsuit to rescind the infringing resolution or claim damages for infringement.
Conclusion
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China’s system of condominium ownership is centered on the protection of owners’ common rights and interests, with the right to joint management serving as a key mechanism for balancing individual and collective interests. In practice, it is necessary to strike a balance between procedural fairness and substantive rights, and, in light of judicial interpretations and evolving case law, to provide precise legal support for owners’ self-governance.
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