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When the original business committee of the community expires and the new business committee is not elected for various reasons, the members of the original business committee are generally unwilling to manage the affairs of the community, and the community management has entered a vacant state. If a property takes this opportunity to sign a property contract with the original developer and starts to serve in the community, is this contract valid? Also, can the original business committee still perform its duties? The following case study answers both questions.
In 2020, the Shanghai Jiading District International Electromechanical and Hardware City Community Industry Committee sued Shanghai Kun'an Property Company, requesting that the property be ordered to withdraw from the community.
The defendant property submitted: In April 2018, Wangkai Property, the original property of the community, had been listed as a dishonest person subject to execution and could not provide property services for the community. In 2019, the term of office of the members of the Owners Committee expired, the operation of the Owners Committee was paralyzed, and the defendant had no way to find the Owners Committee when he was stationed, so he signed a property contract with the developer to rectify the chaos in the hardware city, and had actually provided property services to the owners, constituting a de facto property service relationship.
After the trial, the Shanghai Jiading District Court ascertained: on April 22, 2009, the Owners Committee was registered with the Shanghai Jiading District Land Bureau, and the Rules of Procedure of the Community Owners' General Assembly were determined in Item 8 of Article 21Until a new owners' committee is elected, the original owners' committee will continue to perform its duties.
The court held that the property management of the community should enter into a written contract with the property committee in accordance with the law, and the defendant property only signed a property contract with the developer, and the property area under the developer's name did not reach more than 50% of the total property area of the community, so the defendant property signed a property contract with the developer and provided property services to the community, which did not comply with the law. At present, the new business committee of the community has not yet been elected, and the original business committee can still continue to perform the relevant duties of the hardware city industry committee. The judgment was made for the defendant's property to withdraw from the management services of the community. ((2020) Hu 0114 Min Chu No. 996).
This case solves two problems that plague the development of the community, as long as the community has established an owners' committee, regardless of whether the owners' committee's performance expires or not, the property must sign a contract with the owners' committee before it can settle in the community to serve. Moreover, the judgment made it clear that before the new business committee is formed, the original business committee can still continue to perform its duties and serve the community!
Previously, an article was published entitled "Can the Owners' Committee still perform its duties after the expiration of its term of office?" The article cites the judgment of the Shanghai Pudong People's Court, which found that the original business committee could still perform its duties because the responsibility for the failure of the new business committee was the sub-district office. In this case, the Jiading Court directly held that the new business committee was not elected, and the original business committee could still perform its duties. The judgments of the courts in both places directly reflect the principle that the community owners committee is managed by the owners autonomously.
The judgment of the Shanghai Jiading Court is of great significance. When the tenure of many district owners' committees expires, it is often difficult for the new owners' committees to give birth due to various reasons, and the management of the community has entered a gap period, and even becomes very chaotic. Some ill-intentioned property owners and neighborhood offices have taken this opportunity to set up obstacles everywhere, postponing the convening of owners' meetings, questioning the candidates for the new owners' committee, and not announcing the election results, so that the new owners' committee has not been able to be formed, and at the same time, the neighborhood office has determined that the original owners' committee has expired and has no right to perform its duties again, resulting in the community being temporarily unmanaged, and the new property may take advantage of the situation to enter, and the neighborhood office may replace the owners' committee to perform its duties.
The judgment of the Shanghai Jiading Court clearly affirmed that before the formation of the new business committee, the original business committee still has the right to perform its duties, which completely breaks the illusion that some people want to deliberately create a gap in community management to achieve a certain goal, and is very beneficial to the normal general election of the community business committee and the promotion of community development and construction.
As long as the new owners committee is not elected, the original owners committee should continue to perform its duties, and its duties and obligations are still there, and it should continue to serve the owners of the community.
Owners & Properties