Analysis of residential parking spaces ownership16314.doc

analysis of residential parking spaces ownershipkeywords: parking spaces / owners / priority right to use the summary: the draft property law draft to determine the owners of the sixth district of parking spaces have priority use rights, respect for the interests of landlords and developer interests. but the ownership of parking spaces as a priority use of contractual form of the choice of means, though expression of the meaning of autonomy, but not conducive to protecting the interests of owners, the priority should be the legal way to supplement agreement. area parking spaces, in the draft property law known as the garage, its determination of ownership related to the property owners, developers, the rights and interests, residential property owners live and work within the convenience and safety. for a long time, our legislation does not provide, even though the provisions of chinas draft property law, construction division, the planning for the parked car parking spaces, garage, should first meet the owners needs. parking spaces, garage attribution, there is agreement, in accordance with agreement; there is no agreement or the agreement is not clear, belongs to the owners there. this provides a partial solution to the old problems of the program, but still flawed. so i engage in a further explored. the author believes that residential parking spaces in the first instance to satisfy the needs of property owners under the premise should be clear that it belongs to all the owners together there, because this provision is conducive to resolving ownership of chinas current residential parking disputes, and foreign cases consistent with the legislative and in line with the interests of the civil code regulate the relationship between the type of adjustment. first, the status quo of chinas ownership of residential parking spaces ownership of residential parking spaces, from the time can be divided into two categories: ownership of parking spaces for the initial ownership, such ownership for all developers. the second category is the successor title, refers to all housing developers will be sold to owners, the ownership of parking spaces. this is two different types of ownership, should not be confused with each other. in real life, the first group ownership is not in dispute, the disputed ownership of the second type of ownership. from our perspective the current status quo, the district of parking spaces, there are three forms. the first form: in the residential construction within a special parking facilities, which walls are separated from each other, the surrounding area clear, with a separate entrance, has become differentiated and housing, independent of specific objects. 1 whose ownership can be registered, the owners only purchase or lease of the parking spaces only after the ownership or use rights; if no special agreement, ownership of the construction of parking facilities owned by all developers. of such parking spaces, we call it garage, the developer of these 26 categories of parking spaces for sale, usually bundled sales or marketing approach to sell, respectively, about a particular parking spaces linked to specific housing units, one sold to the owners or developers of residential units and underground parking as a separate sale and purchase of the subject matter of sales, respectively. the difference between the two sales methods: bundling parking spaces will be an adjunct as a specific unit sold, while sales will be, respectively, as an independent subject matter of parking spaces to sell. the similarities between the two is that this type of parking spaces is determined by prices paid for the corresponding quarters of the owners of individuals. the second form: yes, on a plot of ground set aside by the districts property companies dedicated parking spaces. such parking spaces are not developers specialized in sales, take more share sell approach. their input is extremely limited due to developers, and which have been included in pooled area to sell, so the developers will sell houses, the result of land use rights within the district have been placed all of the owners of all, so the land use rights on the of parking spaces owned by all owners to enjoy. in real life, usually by stopping those who pay user fees to property companies, while property companies that use the charge as part of the property management fee for the use of all the interests of owners. the third form: plot of each of the building under the first layer or a layer of the construction of underground parking spaces. for this case, developers take the sales practices of three scenarios: share sale, tie-in sales, or sales methods, respectively. share sales means developers can not provide one parking space for each unit cases, sales of parking spaces to all owners, each owner according to their part of the floor area of residential exclusive sharing of parking spaces for the purchase price. in real life, there are two to determine the method of assessment: a method of the contract indicate that the contract for the sale of housing indicate the scope of residential garage are pooled for the apportionment of sale, otherwise the respective sales; the other is the cost calculation method that the residential garage costs to housing prices for the share sale, only clear that housing prices do not include the cost of a residential garage sales, respectively. in the share sale in the way, and many more owners share the cost of construction is to judge, if the sharing of the cost of all the owners, then the parking spaces owned by all the owners of common there, or else go to all developers. 2 relatively speaking, the tie-in sales or marketing methods, respectively, of its relatively clear attribution of ownership. in real life, since it is difficult to ascertain whether the construction cost-sharing developers, sales, and in our district at the present stage of parking spaces does not meet the needs of all owners of residential, some developers will sell this type of parking spaces to a person other than the owners, giving rise to disputes. the current beijing commercial housing pre-sale contracts and property service contract (model version) in the corresponding provisions of this problem description. document stipulates that both sides of the parking fee to be agreed in advance, buyers who purchase contract will be signed with a decision whether to buy or rent a parking space and stopped the price of parking spaces with developers, property companies agreed in the contract. reposted elsewhere in the paper for free download http:/ second, drawing on comparative law for the public district, the parking spaces directly related to the vesting of ownership of property owners and residents of the immediate interests of the entire district. thus, countries or regions of the legislation, the provisions of both this issue, chinas property law legislation should be to absorb and learn from. (1) german law germany, july 30, 1973 as amended home ownership laws article 3, paragraph 2 provides that in order to indicate the persistence scope of landmark parking lot, considered to be independent of the room. 3 therefore, in germany the garage as a stand-alone objects, their ownership can be freely sold to residential developers, the owners, rather than as from the objects directly owned by all owners. the advantage is to protect the developers and district residents do not need to garage the interests of owners, which can not pay the garage cost-sharing. should be clear that, even if the plot belongs to all parking spaces within the co-owners there, to enjoy the exclusive right to use the parking spaces can also be owners of property owners within the district to transfer its right to use freely. 4 (b) japan and france in japan, the distinction between all the buildings attached to the car park is divided into two categories: one for the outside parking lot, usually in the building base to draw clear boundaries formed; the other is inside parking lot, means the distinction between all the buildings set the parking lot, generally located in the distinction between the ground floor of all buildings or a two-story, but there are also located on the roof platform. parking lot right outside the judicial practice and legislation in japan are sharing it as part of, and may have to distinguish between a specific distinction between the owner or person other than the owner to set access rights, and that the exclusive right to use and should be publicized. ownership of the house parking lot in japanese academia remains controversial court rulings, one son. supreme court of japan in showa 56 years, june 18 ruling in some of the views that support the proprietary position, making it the judicial practice in japan to gain the absolute mainstream. however, his academic critics, that the referee can not resolve the following issues: first, where the distinction between all the buildings attached to the car park facilities may take some features, its lack of independence in the use of; secondly, if the in the parking lot in the existence of certain common facilities and other proprietary artificial distinction between the use of these shared facilities, into other peoples proprietary rights in the area under the. 5 (c) the french and france in france, the construction of new apartments are a statutory obligation to bear: in the building base, according to a standard of a space designed for residents parking. the academic and judicial practice, that the distinction between all the buildings of the residential areas and parking areas for the respective real estate, that parking spaces must be purchased separately; and that the distinction between the occupants of all buildings other than the person, they can buy the base of the parking spaces. (d) american law u.s. law within the garage of the residential system design, follow two basic principles, one does not allow anything other than residential property owners who have ownership of the garage within the district, the second district is not allowed within the garage as a separate part of the exclusive separate sale and purchase. 6 we can see that the rules of u.s. law designed with germany france, france and france different. first, the u.s. law clearly does not allow residential property owners within the district other than the people have ownership of the garage to avoid the residential property owners other than the one has a monopoly of ownership of the garage within the district to the owners charge exorbitant monopoly capital. second, do not allow a separate district within the garage sale, effectively avoiding the transfer of ownership to the owners of the garage outside the hands of others. of course, the united states are also available separately as a separate part of the trade or proprietary lease, mortgage garage, but it refers to in the residential district outside the scope of another construction, development and management, in itself a distinction between all of the specialized nature of the garage. (e) toronto, canada city of toronto is based on household bedroom configured as a standard parking spaces, and its statutory requirement is: developers must have a two-bedroom household configuration 1 parking spaces, to have three or more households in the bedroom configuration 2 parking spaces. it must also be the base on the distinction between ownership of every four artificial units, set up a car parking spaces for visitors to use. the ownership of its parking spaces attached to the housing within the district. (vi) the region of macau civil code macau civil code 1315 provides that: hierarchical structures within a parking space, as its share of the space is properly bound, and can be access from the access layer of a common part of the building or street who can think independently units, even if such spaces are not mutually distinction and separation between the person no exception. the space delimited by the appropriate means in order to not get rid of the mode split of the partition adjacent areas, which indicate the number or the name of its own. can be seen that the region of macau civil code and similar to germany and france, but also a portion of the garage as a separate matter. but apart from that particular parking space, the other types of parking spaces, macau civil code makes no special provision is generally believed that it belongs to all of the owners of common there. reposted elsewhere in the paper for free download http:/ (vii) in taiwan china and france chinas taiwan region will be based on different types of garage make different rules. its the garage is divided into three types: first, the statutory garage. such statutory garage, no independent right to form in order to share part of the families assigned to the lease shall be transferred together with the main buildings, but they can charge according to the agreement, by one family or household use some. second, the self-addition of the garage. this type of garage does not belong to distinguish between building ownership in the common parts, but rather a separate things. with independent property rights and the right of its shape, but its not violate the land use right transfer contract shall not breach of construction planning. third, the award additional garage. of their indep