The decision on the matters specified in items 6 to 8 of the preceding paragraph shall be agreed by the owners with more than three-quarters of the area of the exclusive part and more than three-quarters of the number of owners participating in the voting.
Therefore, in practice, on the premise of unified standards, both It can be based on the building area or the use area.
Other matters in the preceding paragraph shall be decided, It shall be approved by the owners who participate in more than half of the area of the exclusive part and more than half of the number of votes.
However, we believe that this understanding is too mechanical, which actually confuses what standard the exclusive part should be registered according to (calculating the area of ownership enjoyed by the owners) There are two different problems: what standard should be used to calculate the owner’s voting right for the exclusive part and the exclusive part.
Does this practice comply with the legal provisions? A: regarding the exclusive part, the civil code Article 271 continues the expression of Article 70 of the property law (repealed), which stipulates that “the owner shall enjoy the ownership of the exclusive parts of the building such as residential houses and commercial houses, and the right to jointly own and jointly manage the common parts other than the exclusive parts”; the Supreme People’s court The first paragraph of Article 2 of the interpretation on Several Issues concerning the application of law in the trial of disputes over differentiated ownership of buildings (hereinafter referred to as the interpretation) stipulates that “houses that meet the following conditions within the building division, as well as specific spaces such as parking spaces and stalls, shall be recognized as the exclusive part referred to in Chapter 6 of Part II of the Civil Code: (1) It is structurally independent and can be clearly distinguished; (2) it is independent in utilization and can be used exclusively; (3) it can be registered as the object of specific owner ownership ” From the meaning of the above legal and judicial interpretation, the exclusive part should have structural independence, utilization independence and registrability, and the owner has independent ownership of the part.
Whether calculated on the basis of building area or usable area, the proportion of voting rights enjoyed by each owner will not change.
The problems to be solved in Article 271 of the civil code, paragraph 1 of Article 2 of the interpretation and paragraph 2 of article 278 of the civil code are different: Article 271 of the civil code and the interpretation The first paragraph of Article 2 aims to solve the former problem, which is to clarify that the owner has a separate ownership of the exclusive part and a joint ownership of the common part; civil code The second paragraph of article 278 aims to solve the latter problem, that is, the bargaining power of the owners, that is, the voting power of the owners on major matters.
It is based on this concept and considering that there is no uniform standard for recording the area of exclusive parts in various places, Article 8 of the interpretation stipulates: “The area of the exclusive part stipulated in the second paragraph of article 278 and article 283 of the civil code can be calculated according to the area recorded in the real estate register; if the property right has not been registered, it shall be calculated according to the measured area of the surveying and Mapping Agency temporarily; if the property right has not been measured, it shall be calculated according to the area recorded in the house sales contract temporarily.” it is not clearly and uniformly stipulated that it is applicable to the civil code Article 278 in the second paragraph of article 278, the standard for calculating the area of the exclusive part shall be left to the local owners to decide whether to use the building area or the use area as the calculation standard, as long as the same standard is adopted in the same building area…
Should the owner’s voting right be calculated based on the building area or the use area Q: for major matters within the building area, paragraph 2 of article 278 of the Civil Code stipulates: “For matters to be decided jointly by the owners, the owners with more than two-thirds of the area of the exclusive part and more than two-thirds of the number of owners shall participate in the voting.
From this point of view, when calculating the voting rights of the owners, it seems that it should be calculated according to the area of the exclusive part of the houses owned by each owner, that is, the area used in the suite, and should not include the area of the common part.
The expression “exclusive part” is also used in paragraph 2 of article 278 of the civil code, which is different from the civil code from the Perspective of systematic interpretation The “exclusive part” specified in Article 271 It should have the same meaning.
“In practice, for the voting rights of the owners, the area of the exclusive part is calculated according to the building area in some places, and the sum of the area of the exclusive part is the total area of the building.