涉外法律┃Brief on Owners'' Voting Rights

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Brief on Owners' Voting Rights

Gaoyang Law Firm,Issac Tan

Owner is the product of urbanization. The Legal concept of owner earliest appears in May 17,1952 from the Letter by Supreme People's Court in Answering the Question how to handle  the cases of house owners exercising the right of preemption,which is called former owner. It was first specified that the owner is the title holder of a house,in accordance with the Regulations on Realty Management in 2003. The Owners' voting Rights in this article is reflected in the management rights over common areas of the building and describes a scene that the owner voting in the house-owner convention. Combs and simple analysis were given in two aspects of the identification of owner and the Validity of owners' vote based on Real Rights Law of the People's Republic of China and other related law and regulations.

Chapter1:

the Identification of Owner

The scope of the owner has been extended from the title holder of a house, which is pursuant to Regulations on Realty Management,to those who obtain ownership of a part of a building exclusively owned by it through registration in accordance with the law in the Interpretation of Several Issues Concerning the Specific Application of the Law in Disputes over the Division of Ownership of Buildings. The meaning of the owner go further and is enlarged to a party who obtain ownership of a part of a building by the succession or donation,which on the basis of Regulations of Sichuan Province on Realty Management. This increase depends on the age. The owners' voting is a kind of civil legal act essentially and concerns whether the owner has the capacity for civil conduct necessarily. The owner without civil capacity or limited civil capacity shall exercise his voting rights through his guardian. Meanwhile the Commission in the General Principles of the Civil Law applies to the right of owners to vote.

Chapter 2:

the Validity of owners' vote

It sets limits in the Real Rights Law that owner should satisfy the condition about number and the area of an exclusively-owned part. It provides in the Interpretation of Several Issues Concerning the Specific Application of the Law in Disputes over the Division of Ownership of Buildings that the number of owners shall be calculated based on the number of exclusively-owned parts,at a ratio of one person per exclusively-owned part. However,the parts not yet sold by the developer,parts sold but not yet delivered as well as exclusively-owned parts numbering one or more owned by one buyer shall be calculated based on one person. In a respect of the area of an exclusively-owned part,from mentioned judicial interpretation,the area of an exclusively-owned part shall be calculated based on the area recorded in the immovable property registry;if registration of rights in rem has not yet been carried out,the area shall provisionally be calculated based on the area actually measured by the surveying institution;if the actual measurement has yet to be taken,the area shall provisionally be calculated based on the area recorded in the premises sale and purchase contract.

A.The limits of number.

The fore mentioned judicial interpretation says that the owner who owned one part of exclusively-owned part could have one vote only, on matter he has married or has any cohabitant.The number of owner shall be calculated one person even though he owned more than one part of exclusively-owned part because of which to prevent the monopoly by big-owner who owned more than one part of exclusively-owned part.In practice, there are the following doubts：

1、It is no doubt that the vote shall be calculated as one when the owners had one part of exclusively-owned part expressed the same opinion in the different votes. If those owners had different opinion in the different votes,these votes shall not be valid due to they are over the limit.

2、Whether one party in a spousal relationship could apply for revocation on grounds of unauthorized disposal,if one party disagrees the opinion from the other one and does not vote when both husband and wife have a part of exclusively-owned part? My answer is no because any party in a spousal relationship could represent the other in the management of common affairs and the third party has reasons to believe that vote voted by both husband and wife. Meanwhile voting is not a disposition of property and does not belong to the scope of unauthorized disposal,whose object is property.

3、Whether one owner in the relationship of several possession could apply for revocation because of unauthorized disposal,if one disagrees the opinion from others and does not vote?In addition to the above opinions, owner in the relationship of several possession could settle the dispute by filing another lawsuit when he suffers any damage as a result of voting, rather than by exercising the revocation right.

4、Whether the owner has the right of voting if this owner has one part of exclusively-owned part and has been revoked or canceled company registration authority, in the case of a limited liability company? I think it depends on the results of company registration. A company has no right to vote when it has been canceled as subject qualification existing according to our laws. On the contrary,a company even revoked has right to vote and shall vote by authorizing its employee.

5、Could owner who does not pay property fee or damages public property vote? The owner’s right to vote could be restricted in the owners’ Convention Management or the Rules Regarding the Owners’ Congress if one owner does not pay property fee or damages public property vote in line with the Regulations of Chengdu on Realty Management. So the owner even could not vote if he does not pay property fee or damages public property provided by valid Convention Management or the Rules Regarding the owners’ congress,which is also in line with the autonomy principle and value orientation of property management.It should be noted that such a restriction shall be subject to the Convention Management or the Rules Regarding the Owners’ Congress and to satisfy the statutory requirement for a majority vote.

B.The limits of building area.

The area of an exclusively-owned part and the total building shall be calculated based on the statistics recorded in the immovable property registry in accordance with the Interpretation of Several Issues Concerning the Specific Application of the Law in Disputes over the Division of Ownership of Buildings. If registration of right in rem has not yet been carried out,the area shall provisionally be calculated based on statistics measured by the surveying institution and recorded in the premises sale and purchase contract in order.

C.The effect of voting rights.

Voting which is the product of the Convention Management or the Rules Regarding the Owners’ Congress forms a constraint on owners.That is to say, even if the owner did not vote or voted against the majority vote or was considered invalid voting, the owner should comply with aforementioned convention and rules. The question is whether those convention and rules  could stipulate penalty or liquidated damages clause to the owner who violates the convention and rules. Whether the convention and rules having penalty or liquidated damages clause comes into force on the owner who penalty or liquidated damages clause?

My opinion is it works for one voted validly and agreed with the convention and rules,as he has promised. Conversely speaking,it is not working to those who did not vote or voted against the majority vote or was considered invalid voting. The reason is there is no relevant laws and regulations to authorize punishment and no agreement formed,even though voting in the owners’ congress is democratic and fully respects the opinion of the majority. Meanwhile, the penalty or liquidated damages clauses in the convention and rules have exceeded the reasonable scope of obligations as The principle of rights and obligations reciprocity. So the convention and rules should avoid these disputability.

Various attempts and explorations in this field are worth encouraging as owners' voting Rights belongs to the category of private autonomy,if it does not violated relevant laws and regulations. Any mistake above all,please send email to me.

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附中文原文

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简述业主表决权

文/四川高扬律师事务所涉外法律服务中心  谭潇仪律师

“业主”这一概念是城市化的产物。我国法律意义上的“业主”最早出现是在1952年5月17日《最高人民法院解答关于处理房户行使优先购买权案件发生疑义问题的函》中，该函将原房主称为“前业主”。2003年的《物业管理条例》才第一次明确规定了业主的概念，即房屋的所有权人。本文中的业主表决权是业主基于建筑物内对共有部分的共同管理权的体现，更是对业主在业主大会上行使投票权的概括定义。将来随着业主自治制度的成熟和完善，业主表决的形式可能会增加举手、发言等形式，故本文中的投票将概括为业主表决权，以防止将来新表决方式出现而产生的定义上的不周延。本文将综合《物权法》等法律法规，从业主身份界定、投票的效力两方面对业主表决权进行梳理和简析。

一

“业主”的身份界定

《最高人民法院关于审理建筑物区分所有权纠纷案件具体应用法律若干问题的解释》将业主的范围从《物业管理条例》中的房屋所有权人增加到基于购买新房而合法占有建筑物专有部分但未办理产权登记的人，《四川省物业管理条例》更是在此基础上增加了因赠与、继承等法律关系而合法占有建筑物专有部分但未办理产权登记的情况。这种外延上的增加是顺应现实发展的。基于业主身份的表决，实质是民事法律行为，必然考量该业主是否具有民事行为能力。因此，业主为无民事行为能力人或限制民事行为能力人由其监护人代理其行使表决权。同时，《民法通则》中的委托也适用于业主表决权。

二

业主投票的效力

《物权法》对业主决议需满足人数上和专有部分建筑面积上的限定。关于人数，《最高人民法院关于审理建筑物区分所有权纠纷案件具体应用法律若干问题的解释》规定：业主人数，按照专有部分的数量计算，一个专有部分按一人计算。但建设单位尚未出售和虽已出售但尚未交付的部分，以及同一买受人拥有一个以上专有部分的，按一人计算。关于专有部分面积，该司法解释规定：专有部分面积，按照不动产登记簿记载的面积计算；尚未进行物权登记的，暂按测绘机构的实测面积计算；尚未进行实测的，暂按房屋买卖合同记载的面积计算。

1、人数上的限定。

上述司法解释规定一个专有部分的业主可投一票。当一个专有部分仅登记在一人名下时，不管其是否已婚、是否有其他共同居住人，其投票均为一票。同一业主拥有多个专有部分的，其视为一人，这是为防止大业主对表决权的垄断。实践中，有如下疑问：

1）一个专有部分的共有人投出相同表决内容的票，无疑可以视为一票；一个专有部分的共有人投出不相同内容的票，我认为超过要求的票数，应视为无效票。

2）一个专有部分为夫妻共有，一方投票但另一方不同意且未投票的，另一方可否基于无权处分而撤销该方的投票？我的答案是不可以。一方面，夫妻作为一个家庭，在共同事务管理上，一方有权代表另一方行使表决权，第三方有理由相信该表决是夫妻共同作出；另一方面，无权处分的客体是财产，而表决不是对财产的处分，不应当属于无权处分的范畴。

3）一个专有部分为数人共有，各共有人意见不一致，其中一人未投票可否基于无权处分而撤销表决人的表决？除上述意见外，各共有人基于其共有基础法律关系，如果因表决而遭受损害，可以通过另行诉讼予以解决，而不需要通过撤销权予以解决。

4）一个专有部分为非自然人的，如有限责任公司，出现公司吊销或者注销的，是否依然享有表决权？我认为，直接以工商登记状态来区分。注销的，公司的主体资格已经消亡，遂不享有表决权；吊销的，其主体资格尚存，由其授权人员表决。本处不考虑清算问题，是因为清算往往涉及公司对内对外的债权债务，而表决权基于其业主身份，将其与清算撇开，更简单有效。

5）不缴纳物业费或者破坏公共财物的业主是否可以投票？《成都市物业管理条例》规定“业主拒付物业服务费、不缴存建筑物专项维修资金的，管理规约、业主大会议事规则可以对其在物业管理中投票权的行使予以约束”。故不缴纳物业费或破话公共财物的业主经过有效管理规约或议事规则约定，不参与投票。这也是符合自治内涵和物业管理价值取向的。值得注意，这种约束需以管理规约或议事规则约定且已经满足法定过半表决条件为前提。

2、建筑面积上的限定。

《最高人民法院关于审理建筑物区分所有权纠纷案件具体应用法律若干问题的解释》对专有部分进行了规定。而专有部分的面积及建筑物总面积以不动产登记簿记载面积（测绘机构实测面积、买卖合同记载面积）计算。

3、表决权的效果。

表决的产物——业主大会管理规约或者议事规则将对全体业主形成约束力。也就是说，即使业主未投票、持反对票的、被视为无效票的，均应遵守。但是否管理规约是否可以约定对不遵守管理规约的业主进行“罚款”或者主张“违约金”呢？是否对未投票、持反对票的、被视为无效票的业主形成约束力呢？

我认为，如果业主在表决中有效投票且赞同该规约，代表该业主任诺，当然对其可形成约束力。如果业主在表决中反对、未投票或投票被视为无效的，我认为不应对该业主形成约束力。虽然业主表决是民主下充分尊重多数人的意见，但相关法律法规未授权业主大会或业委会享受处罚权，也不能基于该业主的表决而形成契约，同时，权利与义务应对等，管理规约约定处罚或违约金已经超过了义务的合理范围。因此，管理规约应避免易产生纠纷的约定。

业主表决属于私法自治的范畴，如未违背相关法律法规，那么对于这一领域的各种尝试和探索都是值得鼓励的。以上意见，如有错误，敬请指正。