The length of the article is long, which is divided into three parts, namely, the first part, the middle part and the second part. This is the middle part.

三、 According to the object, the condominium ownership in ownership is divided into exclusive right, joint ownership and joint management right

To solve the housing problem, many countries in the world, including China, have built high-rise buildings or multi-storey buildings. With the development of social life, there are more and more high-rise buildings, and more people live and work in buildings divided into several relatively independent areas. In this regard, many countries and regions have successively formulated laws on condominium ownership of buildings or revised civil codes to adjust the relationship between different owners. For example, the law of condominium ownership in France, the law of condominium ownership in Japan, the law of condominium ownership in Austria, the law of residential ownership in Germany, the federal condominium ownership law in the United States, and the housing law in Britain. Italy and Switzerland have stipulated the content of common ownership of buildings in their civil codes.

Since the promulgation of the French Civil Code in 1804, there have been monism, dualism and trialism in the theory and legislative style of what is the building condominium ownership, or what is the composition or meaning of the building condominium ownership. The monism theory can also be divided into the exclusive right theory and the joint ownership theory: the exclusive right theory was first proposed by French scholars in Article 664 of the French Civil Code on the "floor ownership", which holds that the building division ownership refers to the right that the division owner enjoys in distinguishing the exclusive parts of all buildings. The theory of joint ownership was first explained by French scholars Prudon and Rabe in Article 664 of the French Civil Code. On the basis of the theory of collectivity and commonality, they regarded the whole building of condominium ownership as the common ownership of all condominium owners. The theory of dualism was first put forward by French scholars after criticizing the theory and practice of monism. In terms of positive law, it was adopted by France's 1938 Law on the Common Ownership of Real Estate to Distinguish All Classes and 1965 Law on Hierarchical Ownership of Housing. The ternary theory was advocated by Behrman of Mainz University in Germany, which believes that the condominium ownership of buildings consists of the ownership of the exclusive part of the condominium, the share (share) right of the common part, and the membership right arising from the common relationship. In terms of positive law, it is completely adopted by the current German Housing Ownership Law.

Based on the above theories, it can be seen that the development and change of condominium ownership of buildings always revolves around how to effectively regulate the conflict of interests between individuals and groups of condominium owners. From monism to dualism and then to trialism, the evolution process clearly shows the profound impact of the change of jurists' perspective on legal theory. In the above theories, the ternary theory essentially reveals the inherent nature of the condominium ownership of buildings, which helps to adjust the contradictions between individuals and groups of condominium owners and coordinate their mutual relations, so it has become a popular theory in the academic world today. Article 271 of the Civil Code stipulates that: "The owner shall have the ownership of the exclusive parts of the building, such as residential houses and business houses, and the right to jointly own and jointly manage the common parts other than the exclusive parts."

Derivation: As for the "owner", in combination with the provisions of Article 1, paragraph 2 of the Judicial Interpretation of Disputes over the Distinctive Ownership of Buildings, the person who legally registers to obtain the ownership of the exclusive part of the building or obtains the ownership of the building in accordance with the provisions of Articles 229 to 231 of the Civil Code shall be deemed as the owner; Based on the civil legal act of commercial housing sales with the construction unit, the person who has legally occupied the exclusive part of the building but has not yet gone through the ownership registration according to law can be identified as the owner.

（一） Exclusive rights

Article 272 of the Civil Code stipulates that: "The owner has the right to occupy, use, benefit from and dispose of the exclusive part of the building. The owner may not endanger the safety of the building or damage the legitimate rights and interests of other owners when exercising his rights."

1、Scope of exclusive object

The definition of the object scope of exclusive rights relates to the scope of adjacent owners' rights to use, benefit, repair, etc., and indirectly affects the overall safety of the building, while prohibiting related activities that have a safety impact on the overall structure of the building. [4] With regard to the specific determination of the scope of exclusive parts, there are many theories in the civil law theory. Because Japan inherits the exclusive right theory of France in the monism of condominium ownership of buildings, Japan has done a lot of research on the object scope of exclusive rights: the center theory, represented by Japanese scholars Yukio Yamada and Komura, believes that the scope of exclusive parts of all buildings reaches the center of the thickness of walls, columns, ceilings and other boundary parts. The space theory, represented by Japanese scholars Yoshimoto and Zhouqiao Zhunyi, believes that the scope of exclusive parts is limited to the space part enclosed by walls (common walls), floors and ceilings. Finally, according to the theory of painting the surface, the exclusive part, represented by Japanese scholar Yutian Hongyi, includes the part painted on the surface of the wall and column. The theory of wall core and final painting surface, represented by Japanese scholars Ichiro Kawashima and Yingqi Maruyama, is the product of a comprehensive compromise of the above three theories and believes that the scope of exclusive parts should be divided into internal relations and external relations. In terms of internal relations, the exclusive part includes the part painted on the surface of walls, columns, floors, ceilings and other boundary parts; In terms of external relations, the exclusive part includes the centerline to the thickness of wall, column, ceiling and other boundary parts.

As far as the legislative practice of our country is concerned, the owners have exclusive rights to the exclusive part of their buildings. How should the exclusive part be defined? It is generally believed that the independence in structure and use should be taken as the standard. Proprietary parts must be independent in structure. In order to make the structural independence recognized, there must be facilities isolated from other parts. In order to make the independence of use recognized, this part must be recognized as an independent economic trading unit, and must be able to be used independently from other proprietary parts. According to Article 2 of the Judicial Interpretation on the Differentiated Ownership of Buildings, the exclusive part has the following conditions: it is structurally independent and can be clearly distinguished; It is independent in use and can be used exclusively; It can register the object called specific owner ownership.

2. Contents of exclusive rights

Other countries and regions have two kinds of provisions on the rights of exclusive parts: one is that they have the ownership of exclusive parts. For example, Article 13 of the German Housing Ownership Law stipulates that each housing owner, within the scope of not violating the law or the rights of a third party, can freely deal with the building parts within the special ownership, such as living, using, leasing or using in other ways, and exclude the interference of others. Article 9 of the French Building Partition Ownership Law stipulates that the partition owner has the right to freely use the exclusive part of the beneficial part. Article 1 of the Austrian Distinctive Ownership Law stipulates that the right of independent use and disposal set up by the co owners of real estate in a particular house and shop is residential ownership. Article 288 of the Civil Code of the Russian Federation stipulates that the owner of the house has the right to possess, use and dispose of the house belonging to him according to its purpose. The second is to provide for exclusive use of specific parts. According to the Swiss Civil Code, there is no exclusive part of the building, only the exclusive use part. Article 712 stipulates that the owner of the building has a special right to exclusive use and internal transformation of specific parts of the building. The division owner has the right to freely manage, use and decorate his own room.

According to the analysis of the basic principles of the Property Law and the comparative law, the owner's right to the exclusive part is the same as that enjoyed by the general owner, which is absolute, permanent and exclusive, that is, the owner can freely use, benefit from and dispose of the exclusive part within the scope of legal restrictions, and exclude the interference of others. In addition, in order to achieve their residence, business and other purposes, and can be leased to collect rent, or set up a burden on it, and transfer it.

3. Restrictions on the exercise of exclusive rights

The owner's exercise of rights shall not endanger the safety of the building. Each proprietary part of the owner is closely stacked on the same building, and each owner has a common interest in the safety and maintenance of the whole building. The owner shall use the proprietary part according to the purpose or regulations of the building and shall have the obligation to maintain the firmness and integrity of the building, and shall not damage or arbitrarily change the structure of the building.

The owner's exercise of rights shall not prejudice the legitimate rights and interests of other owners. The exercise of the ownership of the owner's exclusive part is also subject to the restriction of the owner of the exclusive part of other buildings. Since all parts of all buildings are combined to form a close three-dimensional adjacent relationship, the use, benefit or disposal of proprietary parts by owners should be strongly constrained by each other. The common interests of all owners must be taken into account, and the ownership of proprietary parts should not be abused to damage the interests of other owners.

（二） Co ownership

Article 273 of the Civil Code stipulates that: "The owners shall enjoy the rights and assume the obligations for the common parts other than the exclusive parts of the building; they shall not fail to perform their obligations on the ground of giving up their rights. When the owners transfer the residential and commercial buildings in the building, their joint ownership and joint management rights for the common parts shall be transferred together." Dominance of exclusive rights. The owner's ownership of exclusive rights is the premise of joint ownership and membership rights.

The joint ownership of the common parts by the condominium owners of buildings refers to the property rights jointly enjoyed by the condominium owners on the common parts of buildings, the right to use the base, the public places and public facilities of the community, etc. in accordance with laws, contracts and the stipulations between condominium owners. In nature, this co ownership right is neither a share in the traditional co ownership nor a common ownership. It is a special kind of co ownership.

1. Scope of co ownership object

To distinguish the common part of all buildings and appurtenances, it is really the other parts of the building except the exclusive part . In combination with the Civil Code and the Judicial Interpretation of Building Division, the specific contents are as follows:

2. Content of co ownership rights

The co ownership rights enjoyed by the owners on the common parts include the rights of possession, use, income and disposal. However, the rights of use and income are mainly involved in real life. The right to use the common part is a basic right of the condominium owner as the common owner, which is the right of the condominium owner in the internal relationship. As for the way of exercising the right of use of the common parts, countries generally divide the use of the common parts into joint use and alternate use. That is, according to the use function of the common parts, if the common parts can be used at the same time, they can be used together; if the common parts cannot be used at the same time, they can be used in turn. The usufruct of the common part refers to the right to hold the common part determined by the management regulations or the exclusive ownership enjoyed by the divisional owner, and the right enjoyed by the joint owner to obtain the interests arising from the common part.

The owners also have a simple right of repair, improvement and property claim for the common part. Based on the needs of living or other purposes, the owner can simply repair and improve the common parts of the building without affecting or damaging the inherent nature of the common parts, rather than changing the repair and improvement. At the same time, the owner has the right to request the return of the shared property, the right to request the exclusion of obstruction and the right to request the prevention of obstruction.

3. Co ownership exercise restrictions

(1) The Owner shall exercise its rights legally and legally

According to the first paragraph of Article 286 of the Civil Code, the owners shall abide by laws, regulations and management protocols, and the relevant behaviors shall meet the requirements of resource conservation and ecological environment protection.

(2) The owner's exercise of rights shall not prejudice the legitimate rights and interests of other owners

According to the reverse interpretation of the second paragraph of Article 286 of the Civil Code, the owner shall not discard garbage, discharge pollutants or noise, feed animals in violation of regulations, build channels in violation of regulations, or occupy passages. According to Article 15 of the Judicial Interpretation on the Distinctive Ownership of Buildings, harming the legitimate rights and interests of other owners also includes harming the load-bearing structure of the house, harming or using electric power, gas and fire fighting facilities against rules, placing dangerous and radioactive substances in the building to endanger the safety of the building or hinder the normal use of the building; Destroy or change the shape and color of the outer wall of the building to damage the appearance of the building; Violation of regulations in house decoration; Build or rebuild in violation of regulations, occupy or excavate public passages, roads, sites or other common parts.

(3) The Employer shall not fail to perform its obligations on the ground of waiver of rights

According to the third paragraph of Article 286 of the Civil Code, the owner shall not, in order to refuse to pay the cost of maintenance and repair of the jointly owned property, waive the right to the jointly owned property, or refuse to pay the cost on the grounds that it is not "actually used". For example, the owner shall not refuse to pay the property fee for not actually living, refuse to pay the elevator maintenance fee for not using the elevator, and refuse to pay the heating fee for not living here in winter.

（三） Co management

1. Meaning of joint management

The owner's joint management right, also known as the owner's membership right, refers to the rights and obligations that the owner enjoys and assumes as a member of a building's group organization based on the inseparable common relationship in the construction, ownership and use of a building. It is a kind of right independent of exclusive right and common right. The right generated based on the common relationship between owners is a kind of sustainable right, which is closely combined with exclusive right and common right and is inseparable. The membership right has both the nature of "material law" and "human law". Its "property of material law" features mainly in its management of differentiated buildings, such as the maintenance, repair and improvement of buildings; Its characteristics of "human law" are mainly manifested in the restriction of the rights and obligations of each divisional owner, such as the effectiveness of the resolutions passed by the majority of divisional owners and the management of the improper use and damage of buildings by the minority of divisional owners.

In combination with Article 280 of the Civil Code and Articles 6 and 7 of the Property Management Regulations, the joint management rights and obligations of the owners are summarized as follows:

2. Joint management: self management or entrusted management

According to the provisions of Article 284 and Article 285 of the Civil Code, the owner can manage the building and its ancillary facilities by himself, or entrust the property service enterprise or other managers to manage. Self management: the owner executes the management business himself or forms a management team to execute the management business. When the number of owners is small, they can be directly managed by the owners. When there are a large number of owners, most of them adopt entrusted management. The property service enterprise or other managers manage the buildings and ancillary facilities within the building area according to the entrustment of the owners, accept the supervision of the owners and answer the owners' inquiries in a timely manner. According to the Measures for the Administration of the Qualifications of Property Management Enterprises, property management enterprises with different qualification levels can only undertake different property management projects according to their own qualification levels. This method will be abolished in 2018. In accordance with the principle of combining owner self-management with social services, we will actively promote the integration of property management into the community governance system. Whether self management or entrusted management, in principle, the owners' congress and the owners' committee need to make decisions and implement.

According to the provisions of Article 277 of the Civil Code, the owners may establish an owners' assembly and elect an owners' committee. According to the Property Management Regulations, the owners' assembly is an autonomous organization of the owners based on the exercise of the owners' condominium ownership, and is the management organization of the buildings and their ancillary facilities within the building area. The owners' assembly may hold regular meetings and interim meetings to make ordinary resolutions and majority resolutions. The owners' meeting is composed of all owners in the property management area. The owners' assembly shall represent and safeguard the legitimate rights and interests of all owners in the property management activities in the property management area. A property management area shall establish an owners' meeting. The specific measures shall be formulated by the provinces, autonomous regions and municipalities directly under the Central Government according to the actual situation of each region. The interested readers can search the local laws and regulations on property management of each region by themselves.

If there are many owners in the building area, the owner committee can be established. The owners' committee is composed of the owners' representatives elected by the owners in the property management area. It is the executive body of the owners' meeting and performs management responsibilities according to the decisions of the owners' meeting. The first owner committee is usually elected by all owners of the community; After that, the owners' committee will be elected according to the rules agreed in the rules of procedure of the community owners' meeting, and the number of people is usually an odd number of 5-11. After the establishment of the owners' committee, it shall report to the real estate administrative department of the district or county people's government where the property is located, the neighborhood office and the township people's government for the record. See Article 31 of the Guiding Rules for the Owner's Congress and the Owner's Committee and Article 35 of the Property Management Regulations of the Ministry of Housing and Urban Rural Development for the specific responsibilities of the Owner's Committee.

The owners' congress is an autonomous organization of the owners, and its establishment shall be prepared and organized by the owners themselves. However, in a building area, the owners move in from different places and do not know each other. The time of moving in is also in order. Therefore, it is difficult for the owners to establish the owners' congress and elect the owners' committee. The "two sessions" are related to how the owners exercise their rights, safeguard their legitimate rights and interests, relate to the vital interests of the majority of owners, relate to the stability and unity of the building area, and even relate to the stability of the society. In this regard, the relevant departments of the local people's government and the residents' committee should give guidance and assistance to the establishment of the owners' congress and the election of the owners' committee.

3. Matters under common management

The content of ownership building management mainly includes "management of things" and "management of people". "management of things" refers to the physical management of the preservation, improvement, utilization and disposal of buildings, bases and ancillary facilities. In principle, it is limited to the common parts of buildings, exclusive parts are not included. "Human management refers to the community management of the living relationship of the owners in groups. Its object is not limited to the behavior of the owners who live in the partitioned buildings, and the behavior of people who come in and go out of the partitioned buildings should be included. Its content can generally be divided into the management of improper damage to buildings, the management of improper use of buildings, and the management of life impairments." 

Article 278 of the Civil Code stipulates that the following management matters shall be decided jointly by the owners, and stipulates the specific rules of procedure for participation and voting:

The joint decision of the owners shall be made by the owners who account for more than two-thirds of the area of the exclusive part and more than two-thirds of the number of owners. The decision on the matters specified in Items 6 to 8 of the preceding paragraph shall be subject to the consent of more than three fourths of the owners who vote on the area of the exclusive part and more than three fourths of the owners who vote. The decision on other matters mentioned in the preceding paragraph shall be subject to the consent of more than half of the owners who vote on the area of the exclusive part and more than half of the owners who vote. In addition, in accordance with the provisions of Article 279 of the Civil Code, the change of residential buildings into commercial buildings shall be unanimously agreed by the interested owners.

As for the calculation of "area", according to Article 8 of the Judicial Interpretation on the Differentiated Ownership of Buildings and Article 23 of the Guiding Rules of the Owner's Congress and the Owner's Committee, the area of the exclusive part can be calculated according to the area recorded in the real estate register; If the property right has not been registered, the area measured by the surveying and mapping institution shall be temporarily calculated; If the actual measurement has not been carried out, it shall be temporarily calculated according to the area recorded in the housing sales contract. The total building area shall be counted and calculated according to the preceding paragraph. At the same time, Article 18 of the Property Management Regulations gives owners autonomy in the rules of procedure. The rules of procedure of the owners' assembly shall agree on the discussion methods, voting procedures, the composition of the owners' committee and the term of office of the members of the owners' committee.

As for the decisions made in accordance with the above regulations, the first paragraph of Article 280 of the Civil Code stipulates that "the decisions of the owners' assembly or the owners' committee shall be legally binding on the owners." At the same time, in order to protect the rights and interests of the owners, the second paragraph stipulates: "If a decision made by the owners' assembly or the owners' committee infringes upon the legitimate rights and interests of the owners, the aggrieved owners may request the people's court to revoke it". In addition, a new article 287 is added to the Civil Code: "The owner has the right to request the construction unit, property service enterprise or other managers and other owners to bear civil liability for acts that infringe upon their legitimate rights and interests." For public management and owners' rights and interests, it is necessary to effectively balance the relationship between them.

Typical case: Mr. Huang sued a property service company for a dispute over the right to health, which is the fourth case among the typical cases (the first batch) issued by the Supreme People's Court for the implementation of the Civil Code by the People's Court.

Basic case: The defendant's property service company is a property manager in Hedong District, Tianjin. The plaintiff, Mr. Huang, came from Shanghai to visit his grandmother in the community on June 10, 2020. At that time, the epidemic of neo coronal pneumonia occurred in some parts of China. The relevant departments of Tianjin issued an emergency prevention and control notice, requiring strict implementation of community entrance and exit duty, and strengthening the epidemic prevention and control measures such as code checking, code lighting, and registration. At about 9:00 on June 19, 2020, Mr. Huang rode a shared bike into the community, and the security guard of the property company immediately called for him to stop to accept the epidemic prevention and control inspection measures such as light code and registration. After hearing someone shouting, Mr. Huang looked back and then accelerated to ride forward. The security guard on duty rode to catch up with the plaintiff, and when he reached out to touch the plaintiff's back, the vehicle lost control and fell down. Later, Mr. Huang sued the property company to the court, demanding compensation for various losses such as medical expenses, transportation expenses, nutrition expenses, nursing expenses, and lost time expenses totaling 57501.3 yuan.

Judgment result: The effective judgment holds that, according to Article 286 of the Civil Code, the owners shall cooperate with the property service enterprises or other managers in implementing the emergency response measures and other management measures implemented by the government according to law. At the time of the incident, it was a critical period of the spread of the epidemic and the serious situation of prevention and control. A property service limited company, in accordance with the relevant policy requirements, sent personnel to watch, check the code and register, and blocked the rush of posts, which is a reflection of the performance of duties and responsibilities. Its behavior is not fault, and it should not be liable for compensation. Huang accelerated his riding while the property management personnel shouted, and finally caused a fall, so he should bear the corresponding consequences, so he decided to reject Huang's claim.

Typical significance: The Civil Code clearly stipulates that owners should cooperate with property service enterprises to implement emergency response measures and other management measures implemented by the government according to law, providing a clear legal basis for property enterprises to perform their epidemic prevention and control responsibilities. This case is a typical case in which the people's court handled civil disputes involving epidemic prevention and control measures according to law and provided strong judicial guarantee for the community to implement emergency response measures according to law. At present, the situation of epidemic prevention and control is still serious. The community is the first line of joint prevention and control of the epidemic, and an important battlefield to contain the spread of the epidemic. We must implement detailed prevention and control measures. Although code checking adds some trouble to residents' daily travel, it is a necessary measure to prevent and control the epidemic, which is of great significance. Every citizen should actively cooperate. In this case, the trial court strictly grasped the principle of liability fixation of tort liability, distinguished right from wrong, clarified attitude, and supported the community to perform its epidemic prevention duties according to law, which helped guide the public to consciously abide by the epidemic prevention order, and highlighted the role of judicial services and safeguarding the overall situation.

四、 According to relationship, ownership is divided into adjacent relationship and common ownership

The above relationship of condominium ownership of buildings is not only reflected in the relationship of rights and obligations in the property law, but also involves the community formed by the owners, such as the owners' assembly and the owners' committee. In the ownership, there is a special relationship that relies on each other and complements each other. From the perspective of physical space, there is a neighboring relationship, and from the perspective of ownership domestication, there is a common or co ownership relationship.

（1） Adjacency

1. The concept of adjacency

Article 288 of the Civil Code stipulates: "The neighboring obligees of immovables shall correctly handle the neighboring relationship in accordance with the principles of facilitating production, facilitating life, solidarity and mutual assistance, fairness and reasonableness."

(1) Definition

Adjacent relationship refers to the relationship of rights and obligations arising from the exercise of ownership or usufructuary right by the adjacent parties of the real estate. Adjacent relationship refers to the extension or restriction of rights exercised by the obligee of adjacent real estate. The obligee of real estate who provides necessary facilities to the other party is the party whose rights are restricted, and the obligee of real estate who obtains necessary facilities is the party whose rights can be extended. This extension is necessary for the exercise of ownership and use rights.

(2) Features

The object of the neighboring relationship is the real estate right, and the subject is two or more real estate owners, usufructuary rights or occupiers; The real estate owned or used or occupied by the subject of the adjacent relationship is adjacent; The exercise of the neighboring right must be limited to obtaining necessary convenience from the obligee, and the legitimate rights and interests of the neighboring obligee shall not be damaged by exercising the neighboring right.

Although the neighboring relationship traditionally mainly refers to the relationship of rights and obligations between the owners of neighboring real estate (especially land), because China implements public ownership of land, the neighboring relationship is mostly manifested as the relationship of rights and obligations in the specific use of real estate such as land; Although there is also the relationship between neighboring real estate owners, it is often more manifested as the relationship between land contractual management right holders, construction land use right holders, homestead use right holders, building use right holders and other people who use land or buildings specifically. Therefore, the subject of the adjacent relationship is described as "real estate obligee".

(3) Principles

The principle of favorable production. We should promote style, take the overall situation into consideration, support production and construction with practical actions, and do not let small things outweigh large ones; It is also necessary to settle disputes and resolve conflicts, and to minimize the impact on production.

The principle of convenient life. Adhere to the people-oriented principle, and fully consider the convenience of life of neighboring obligees. Resolute measures should be taken to stop acts that seriously endanger the health and normal life of neighboring obligees.

The principle of solidarity and mutual assistance. Neighbouring parties are equal civil subjects. They should cooperate with each other, adhere to the principle of being good to their neighbors, mutual benefit and win-win results, and oppose seeking self-interest at the expense of others and beggar thy neighbor. Adjacent parties need to think from a different perspective to help neighboring obligees.

The principle of fairness and reasonableness. Adhere to the principle of equality of rights and obligations, and no one can only exercise their rights and not perform their obligations. All parties shall jointly maintain the facilities for common use and benefit, and neither party shall arbitrarily change the use or take them as its own.

(4) Basis

Article 289 of the Civil Code stipulates: "Where laws and regulations have provisions on the handling of neighboring relations, such provisions shall prevail; where laws and regulations have no provisions, local customs may prevail." This article can be the concretization of Article 10 of the Civil Code in the property right. According to the provisions of this article, different methods should be adopted to apply the law in different situations: when laws and regulations have provisions on a certain neighboring relationship, they can be applied together; In the absence of provisions on neighboring relations in laws, regulations can be applied separately; When several laws and regulations have provisions on the same adjacent relationship, it shall be applied comprehensively, which applies to both this chapter and other laws and regulations.

Some scholars believe that the provisions of the Civil Code on neighboring relations are general provisions, and other laws and regulations that provide otherwise shall prevail; If there are other local customs and they do not violate the prohibitive provisions of the law and public order and good customs, they shall prevail. If there are special laws and regulations to regulate specific types of neighboring relationships, they should be correctly applied in accordance with the applicable rules of the law; However, for "local customs", it should be noted that they can only be applied in the absence of relevant laws and regulations.

2. The rights and obligations of the real estate obligee in the neighboring relationship

(1) Convenient water and drainage

The first paragraph of Article 290 of the Civil Code stipulates that "the real estate obligee shall provide necessary facilities for the neighboring obligees to use water and drain water". Adjacent relationship occurs between adjacent parties, and the subject of obligation of adjacent water use and drainage relationship is not unchangeable. Sometimes they are both obligees and obligors, but in most cases, the obligee of the real estate upstream of the current is the obligor. The so-called "necessity" refers to that the normal production or life of neighboring obligees will be affected if such convenience is not provided to neighboring obligees. The provision of convenience shall not exceed the capability of the real estate obligee. If the neighboring obligee suffers from damage due to water use and drainage, it shall bear civil liabilities such as removal of obstacles and compensation for losses.

The second paragraph of Article 290 of the Civil Code stipulates: "The utilization of natural water shall be reasonably distributed among the neighboring obligees of the real estate. The discharge of natural water shall respect the natural flow direction." Natural flowing water is an important part of water resources. China's water resources (surface water and groundwater) belong to the state, that is, the whole people. The water in ponds and reservoirs owned by agricultural collective economic organizations belongs to collectives. Natural flowing water includes the flowing water of rivers, lakes and reservoirs.

The State formulates a long-term water supply and demand plan in accordance with the principles of coordinated supply and demand of water resources, comprehensive balance, ecological protection, strict conservation, and rational open source. In the development and utilization of water resources, we should adhere to the combination of promoting benefits and eliminating disasters, take into account the interests of upstream and downstream, left and right banks and relevant regions, and give full play to the comprehensive benefits of water resources; Insist on giving priority to domestic water, taking into account the needs of agriculture, industry, ecological environment and shipping; If there is an agreement on water use and drainage, it shall be handled in accordance with the agreement. If there is no agreement, it shall be handled in accordance with the downstream principle of "near before far, from high to low". If the loss of neighbors is caused, the beneficiaries shall make reasonable compensation.

(2) Convenient access

Article 291 of the Civil Code stipulates that: "The real estate obligee shall provide necessary facilities for neighboring obligees who must use their land due to passage, etc." The right of way in adjacent areas has three characteristics: first, the right of way in adjacent areas is generally long-term, and there is no fixed and comprehensive possession of the place where the road passes, but only a passing nature. Second, the right of way in neighboring areas generally does not need to be contracted. Third, the right of way in neighboring areas is generally free of charge, unless it causes losses to the real estate obligee.

There are also certain restrictions on the right of way in adjacent areas. First, the most economical and reasonable route should be chosen when passing through the adjacent areas. If there is an old way, the neighboring obligees shall not widen it at will; If there is no old road to go through, the new passage shall be limited to passable. If passing through adjacent land seasonally, no fixed road can be left. Second, we should pay attention to protecting the property in the neighboring land. When passing through neighboring land, they should be careful not to trample on young crops or damage attachments to the land. Third, when the road can be changed due to changes in the objective environment, other more economical routes should be used. Fourth, if losses are caused to the real estate obligee due to passage, compensation shall be made.

(3) Ease of construction, repair and pipeline laying

Article 292 of the Civil Code stipulates: "If the real estate obligee has to use the adjacent land and buildings for building and repairing buildings and laying wires, cables, water pipes, heating and gas pipelines, the obligee of the land and buildings shall provide necessary convenience." The use of adjacent land in this article includes two situations: one is the temporary use of adjacent land due to the construction and repair of buildings; The second is to install pipelines on adjacent land.

The use of adjacent land shall meet the following conditions: First, it shall be convenient if necessary. If the neighboring obligees do not suffer losses in the process of providing convenience, the provision of convenience should not normally be paid. If it is really necessary to temporarily use adjacent land and buildings due to construction, pipeline laying, etc., the adjacent obligee shall allow it, and shall not refuse it on the ground that it has caused some inconvenience or loss, nor deliberately create difficulties or obstruct it. The second is to exercise the neighboring right of use carefully and protect the interests of neighboring obligees. Try to reduce the impact on neighboring right holders during construction (such as traffic, dust, noise, strong light, radiation and air pollution). To this end, both parties may agree on the scope, purpose and duration of using the land and buildings of the neighboring obligees. After use, the site shall be cleaned and restored in time.

3. The duty of care of the obligee of the real estate in the adjacent relationship, and the protection of the rights of the adjacent person

(1) Do not interfere with the ventilation, lighting and sunshine of adjacent buildings

Article 293 of the Civil Code stipulates: "When building, it shall not violate the relevant national engineering construction standards, and shall not interfere with the ventilation, lighting and sunshine of adjacent buildings." Ventilation, lighting and sunshine are one of the important standards to measure a person's living quality. With the rapid development of modern industrial civilization and the acceleration of urbanization, the urban environment is becoming increasingly intensive, and the land use is highly three-dimensional. The rights and obligations arising from the proximity of buildings are increasingly valued, which gradually develops and improves, becoming an important adjacent relationship system parallel to the adjacent relationship of land.

According to the provisions of this article, in China's system of building adjacency, the standards for obstruction of sunshine, ventilation and lighting are based on the contents of relevant national engineering construction standards. If the construction of a building violates the relevant national engineering construction standards, it shall be deemed that it exceeds the tolerance of ordinary people, and the victim may claim to remove the obstruction and compensate for the loss. On the contrary, if it conforms to the national construction standards, it shall be deemed that it does not exceed the tolerance limit even if it causes some interference to the ventilation, lighting and sunshine of the adjacent buildings, and the owner or user of the adjacent buildings shall bear the tolerance obligation.

The state adjusts the rights and obligations between adjacent buildings with the public law document of administrative norms, which also reflects the interlaced characteristics of the adjacent relationship between public law and private law in modern society. In 2012, the Ministry of Housing and Urban Rural Development issued the national standard Standard for Daylighting Design of Buildings, and in 2018, the Ministry of Housing and Urban Rural Development issued the national standard Standard for Planning and Design of Urban Residential Areas.

Reference case: (2016) Su 01 Min Zhong No. 20 Chen sued a company in Nanjing for a neighboring relationship dispute. The plaintiff claimed that the Zifeng Building developed and constructed by the defendant covered the sunshine of its house and claimed compensation. The defendant argued that the lighting of the plaintiff's house met the national standard, and the lawsuit request exceeded the time limit. The defendant, as a developer, had sold most of the houses but was only one of many owners, and the lawsuit for 100000 yuan had no factual and legal basis. The court held that after the building developed by the defendant was completed, the sunshine time of the plaintiff's house was significantly reduced, which was lower than the national standard; The defendant is the owner of the building when it was built, and is one of the current owners, and belongs to the debtor of the plaintiff's indivisible debt of the consequences of the damage to the sunshine right; Sunshine is very important to life, and the right to sunshine should be protected by law; Considering the degree of sunshine reduction of the house and the impact of sunshine reduction on family life and house value, it is reasonable for the plaintiff to require the defendant to compensate 100000 yuan. The judgment upheld the plaintiff's claim. This case reflects that the court should take the relevant building codes as the basis for determining the facts and advocate the value orientation of protecting citizens' right to life when hearing the adjacent right dispute cases such as obstruction of sunshine right.

(2) Do not pollute the environment or destroy the ecology

Article 294 of the Civil Code stipulates that "the holder of a real estate may not, in violation of State regulations, discard solid waste, discharge harmful substances such as air pollutants, water pollutants, soil pollutants, noise, light radiation and electromagnetic radiation". This clause is the specific embodiment of Article 9 of the Civil Code, "Saving resources and protecting the ecological environment". In modern society, the quality of people's living environment is increasingly valued by the society. Governments of all countries are increasing their efforts in environmental protection, and one of the important measures is to strengthen the legislation on environmental protection. However, environmental protection can not only rely on environmental protection law, but also should be regulated and regulated by civil law in the aspects of the neighboring relationship related to the environment and the civil liability for infringement of the environment.

This article draws lessons from the system of infringement of non weighing objects in the continental law system, and at the same time, it stipulates that non weighing objects such as noise, light radiation, electromagnetic radiation, etc., and substantive pollution such as solid waste, water pollutants, soil pollutants, etc., expand the scope of adjustment compared with the system of infringement of non weighing objects in the continental law system. The so-called "intrusion of non weighing substances" refers to the intrusion of gas, steam, hot gas, odor, smoke, ash, noise, vibration and other similar substances into adjacent real estate. The civil law of most countries or regions in the continental law system stipulates how to adjust and deal with the adjacent relationship between the two sides when the non measurable substances invade the adjacent real estate, but the discussion angle is different. Characteristics of non weighing objects: difficult to measure, hazardous to a certain extent, subordinate.

There is no real right claim system in the sense of continental law system in Anglo American law, and the situation of immeasurable infringement is regulated by "illegal nuisance" or "nuisance" in tort law, which belongs to a type of tort. According to the foregoing analysis, the comparison between the German system of infringement of non measurable objects, the French system of neighbor obstruction and the British and American system of obstruction of private interests has made full use of the principle of interest measurement, introduced a conciliatory relief mechanism, and promoted the solution of the infringement of non measurable objects.

Reference case: (2017) J03 Minzhong No. 5642 Jia, Wang and others sued Xia for neighboring relationship dispute.

Basic case: Jia and Wang are husband and wife, while Jia and Jia are the eldest and second sons of Jia and Wang. Jia and his wife bought a house in the north of Xilujiao Village in 1997. In the second half of 1998, Mr. Xia was approved by the village committee to build four chicken houses in the northwest of the house purchased by Mr. Jia for raising chickens. In 2006, Mr. Xia expanded 15 chicken houses in the east of the four chicken houses. Around 2010, Jia Moumou, Wang Moumou, Jia Mouyu and Jia Moumou were approved to build a new two-story house on the north side of the original house. The east end of the chicken house of Xia Moumou is opposite to the new house on the second floor, which is about seven or eight meters away. Xia piled chicken manure in the open air on the east side of the east end of the chicken house. Jia Moumou, Wang Moumou, Jia Moufa and Jia Mouyu sued Xia Moumou to stop the infringement, remove the obstruction and compensate for the loss based on the cause of neighboring relationship.

The gist of the judgment: First of all, the chicken house is close to the upwind of Jia's house, which emits stench, breeds mosquitoes and flies and produces noise all the year round, which obviously has seriously affected the health and normal living; Secondly, although there are certain historical reasons for Xiamou to operate the chicken house, it is not consistent with the overall planning and layout of the future rural houses and the concept of environmental development; Thirdly, from the perspective of whether the abandoned value can be obtained by other rational alternative ways, it is ordered to stop raising chickens in the original site, and still can maintain their livelihood by moving the chicken farm to another site away from the residential area; Finally, although the relevant government departments have not yet issued a clear opinion on whether Xia's chicken raising meets the relevant standards, it does not affect the judgment and handling of whether Xia's chicken raising behavior constitutes an obstacle in civil disputes in neighboring relations.

Reference significance: The sequence of land use and whether the act of injuring has been approved by the administrative authority cannot be the key factors to judge whether it is an obstacle to the neighboring parties, and do not affect the victim's claim of rights in the civil dispute of the neighboring relationship. If it is still impossible to choose between multiple values after determining the basic rank order of interests, the following three points should be considered: first, choose the best interests and the least disadvantages to analyze the choice; Second, whether the abandoned value can be obtained by other rational alternative methods; Third, when conflicting interests cannot be taken into account, consideration should be given to compensating and balancing the abandoned interests appropriately.

(3) Do not endanger the safety of adjacent real estate

Article 295 of the Civil Code stipulates: "The holder of a real estate may not endanger the safety of adjacent real estate by excavating land, constructing buildings, laying pipelines and installing equipment." This article is an obligatory provision on maintaining the security of adjacent real estate, that is, the real estate obligee has the right to carry out project construction within the scope of the land he has the right to use, but he should pay attention to the security of adjacent real estate to avoid causing undue damage to adjacent real estate.

Reference case: In the case of a daily office suing a company in Nanjing for damage compensation for neighboring relationship, the Supreme People's Court held that the defendant should have fully considered the safety of neighboring buildings when building a building adjacent to the plaintiff's factory, but the defendant violated the principle of legal treatment of neighboring relationship and started to open excavation without doing maintenance works, pumping out a large amount of groundwater. Although remedial measures were taken after problems were found at the initial stage, uneven settlement could not be completely prevented, resulting in settlement of the plaintiff's printing plant and equipment foundation and serious damage to the plant and offset press. The defendant should be fully responsible for this. The case reflects the judgment rule that the actor should bear the liability for compensation if the adjacent real estate suffers damage due to failure to perform the obligation of maintaining the security of the adjacent real estate.

(4) Avoid damage to neighboring real estate obligees

Article 296 of the Civil Code stipulates: "Where the obligee of a real estate uses the adjacent real estate for water, drainage, passage, pipeline laying, etc., he shall try his best to avoid causing damage to the obligee of the adjacent real estate." This article is about avoiding damage when using adjacent immovable property. Once the neighboring obligees cause damage to the neighboring real estate obligees, the provisions of the Civil Code on civil liability should be applied to investigate the legal consequences of their civil violations.

In the process of compiling the Civil Code, some opinions put forward that compensation should be made if damage is caused, which can be adjusted by the tort liability compilation, and no special provisions need to be made in this article. After study, the provisions of "compensation shall be made if damage is caused" have been deleted in the Civil Code (Draft) reviewed in August 2018. The deletion of this provision does not mean that no compensation is needed for the damage caused, but that if the damage is caused, compensation for the damage can be claimed according to the provisions of the Tort Liability Part of the Civil Code.

（二） Co ownership

1. Common concepts and classifications

(1) Common concept: owned by more than two subjects

Article 297 of the Civil Code stipulates that "immovables or movables may be jointly owned by two or more organizations or individuals." Co ownership is not the coexistence of several ownership rights. There is only one ownership in common ownership, not multiple ownership. Based on the exclusivity of ownership, there can be no more than one ownership on a thing, but a ownership can be shared by several subjects.

Civil law theory of continental law system holds that ownership can be divided in terms of quality and quantity. When part of the power of ownership is separated from the ownership rather than shared by the owner, it is the "quality" division of ownership, such as "superior ownership" and "subordinate ownership" in the German law, and the establishment of construction land use right, land contractual management right, homestead use right, easement or mortgage right, pledge right, etc. on the ownership, all belong to the "quality" division of ownership; When two or more plural persons share the ownership of the same property, it is the division of "quantity" of ownership, and "co ownership" is the result of the division of "quantity" of ownership (not ownership).

From the perspective of the evolution of ownership, ownership has gone through the development process from "joint ownership" to "separate ownership". As the formation, development and expansion of modern capitalist mode of production contributed to the revival of personal property awareness and right awareness, the position of the common tangible state of ownership in economic life has been reversed from that of separate ownership.

(2) Classification of common ownership: shared ownership and common ownership

Article 297 of the Civil Code stipulates that "joint ownership includes joint ownership by shares and joint ownership" According to Article 298 of the Civil Code, the co owners in shares shall enjoy the ownership of the jointly owned real estate or movable property according to their shares. The cause is based on the intention of the parties or legal provisions; According to Article 299 of the Civil Code, the joint owners jointly enjoy the ownership of the jointly owned real estate or movable property. It can be divided into husband and wife joint ownership, family joint ownership, joint ownership (jointly inherited property) before inheritance division, and partnership joint ownership. For specific systems, see Marriage and Family, Inheritance and Contract.

There are the following differences between joint ownership by shares and common ownership: the foundation is different, joint ownership by shares is not based on common relations, and common ownership must be based on common relations; The rights and obligations are different. The joint ownership by shares shall enjoy the rights and obligations according to the share, and the joint ownership shall enjoy the rights and obligations regardless of the share; With different powers and functions of disposition, joint ownership by shares can be freely disposed of, and joint ownership is not free disposed of; The restrictions on division are different. If the shares are jointly owned, the joint owners can request division at any time. Joint ownership can only be divided unless the common basis is lost or major reasons really require division; The duration of joint ownership is different, and the duration of joint ownership is temporary.

2. Disposal of common property

(1) Management of common property

Article 300 of the Civil Code stipulates: "The co owners shall manage the jointly owned immovables or movables in accordance with the agreement; in the absence of an agreement or unclear agreement, each co owner shall have the right and obligation to manage." This article stipulates that the management basis of the joint owners for the common property is agreement management and joint management. The content of management in the conventional sense is the preservation, improvement and utilization of common property.

Article 302 of the Civil Code stipulates: "If the co owners have an agreement on the management expenses and other burdens of the jointly owned property, the agreement shall prevail; if there is no agreement or the agreement is unclear, the co owners shall bear the expenses according to their shares, and the co owners shall bear the expenses jointly." The term "administrative expenses" refers to the expenses incurred for the preservation, improvement and utilization of the common property. The "other burdens" mentioned in this article refer to various public or private burdens such as taxes, insurance premiums, damages payable by others caused by common property.

(2) Division of common property

The division of common property refers to that the joint owners end the joint ownership relationship by means of physical division or value division of the common property. Joint ownership by shares is temporary in nature. Joint ownership is based on the change or end of mutual relationship, and the joint owners actively or passively request the division of the common property.

For the cause of division, Article 303 of the Civil Code stipulates that: "If the co owners agree that they shall not divide the commonly owned realty or chattel in order to maintain the relationship of joint ownership, the agreement shall be followed, but if the co owners have significant reasons to divide, they may request the division; if there is no agreement or unclear agreement, the co owners by shares may request the division at any time, and the co owners may request the division when they lose the basis of common ownership or have significant reasons to divide. If the division causes damage to other co owners Shall be compensated. " For major reasons, Article 1066 of the Civil Code stipulates that one of the husband and wife requests to split the common property during the marriage relationship, and Article 4 of the Judicial Interpretation of the Bankruptcy Law (II) stipulates that the people's court declares the debtor bankrupt for liquidation, which is the legal reason for the split of the common property.

For the division method, Article 304 of the Civil Code stipulates that: "The co owners may determine the method of division through consultation. If no agreement can be reached, and a commonly owned realty or chattel can be divided without impairing its value due to the division, the physical object shall be divided; if it is difficult to divide or the value will be impaired due to the division, the price obtained from the conversion, auction or sale shall be divided. If the realty or chattel obtained from the division by the co owners is defective, the other co owners shall share the loss."

The division of common property often occurs in marriage and family disputes, inheritance disputes, demolition and relocation compensation disputes, and partnership disputes. While analyzing the specific legal norms and policies involved, the agent lawyer can not forget the basic principle and essential relationship of the division of common property. With this as a guide, there may be more ideas and efforts for handling.

(3) Disposal and transfer of common property

With regard to the disposal of jointly owned property, Article 301 of the Civil Code stipulates: "Where a commonly owned realty or chattel is to be disposed of, or the property or purpose of a commonly owned realty or chattel is to be significantly repaired, changed, or its nature or purpose is to be used, consent shall be obtained from the joint owners who hold more than two-thirds of the shares or from all the joint owners, unless otherwise agreed between the joint owners." For the disposal of jointly owned property, "majority decision" shall be adopted according to the share of jointly owned property, and "unanimous decision" shall be adopted for jointly owned property; Compared with Article 97 of the Property Law, "change of nature or purpose" is added to the resolution on the basis of major repairs.

For share transfer and preemption, freedom of transfer is one of the important attributes of ownership. Article 305 of the Civil Code stipulates: "A co owner in shares may transfer his share of the commonly owned immovable property or movable property. Other co owners have the right of first refusal under the same conditions.". This provision is not only to maintain the existing co ownership relationship, but also to promote the circulation of shares, which has the purpose of human integration in a certain sense. According to Article 9 and Article 10 of the Judicial Interpretation of the Civil Code Real Right (I), the right of first refusal applies to the paid transfer to the outside world, and the right of first refusal does not apply to the transfer of shares among the co owners by shares and the free transfer based on inheritance, legacy and other circumstances. As for the "equal conditions", it shall be determined by combining the factors such as the transfer price of the common shares, the way of payment and the time limit. As for the specific operation and steps of exercising the right of first refusal, Article 306 of the Civil Code stipulates: "If several co owners transfer their shares of jointly owned immovables or movables, they shall notify the other co owners of the transfer conditions in a timely manner. The other co owners shall exercise the right of first refusal within a reasonable period of time. If two or more other co owners claim to exercise the right of first refusal, they shall consult with each other to determine their respective purchase proportion. If consultation fails, they shall exercise the right of first refusal in accordance with their respective share of the joint ownership at the time of transfer."

Derivation: about the concurrence of the preemptive right of the co owner and the preemptive right of the lessee. According to the principle that property right is superior to creditor's right, it should be considered that the preemptive right of the joint owner is superior to the preemptive right of the lessee. The purpose of establishing the preemption right is to maintain the existing legal relationship and maintain the stability of the legal relationship. When both the co owner and the lessee can claim the preemption right, it indicates that there has been a dispute between the co owner and the lessee. If the lessee exercises the preemption right and then enters the joint ownership relationship, the dispute between the original co owner and the new co owner may escalate and intensify the conflict. If the lessee does not exercise the right of first refusal, it will not have a material impact on the lessee's lease relationship.

3. Internal and external relations arising from joint ownership

According to Article 307 of the Civil Code, the creditor's rights and debts arising from jointly owned immovables or movables may have external and internal relations. For example, claims and debts of tort nature, such as the third party's damage to the common property or the damage to others caused by the common property; Or contractual claims and debts incurred with a third party due to the repair of the common property. Under special circumstances, the creditor's rights and debts arising from jointly owned immovables or movables also include those arising from unjust enrichment and management without cause.

(1) External relations

The so-called "external relations" refer to the relationship between the co owners and a third party other than the co owners. In foreign relations, it is unnecessary to distinguish between shared ownership and common ownership. The co owners enjoy joint and several creditor's rights and assume joint and several debts, except where it is otherwise provided by law or the third party knows that the co owners do not have joint and several creditor's rights and debts.

(2) Internal relations

The so-called "internal relationship" refers to the relationship between co owners. Unless otherwise agreed by the co owners, the co owners shall enjoy the creditor's rights and assume the debts according to their shares, and the joint owners shall jointly enjoy the creditor's rights and assume the debts. If the repayment of debts exceeds his share, the several co owners shall have the right to claim compensation from other co owners.

4. Presumption of common ownership

(1) For the nature of the joint ownership relationship, if there is no agreement or the agreement is not clear, except for the existence of family relationship, it shall be deemed as joint ownership by shares

Article 308 of the Civil Code stipulates: "If the co owners have not agreed on the common ownership of a commonly owned realty or chattel or the agreement is not clear, unless the co owners have a family relationship, it shall be deemed as the joint ownership of a commonly owned realty or chattel."

(2) For the shares of several co owners, there is no agreement or no clear agreement. The shares shall be determined according to the amount of capital contribution. If the amount of capital contribution cannot be determined, it shall be deemed to be equal

Article 309 of the Civil Code stipulates: "Where there is no agreement or no clear agreement on the share of a joint owner of a commonly owned realty or chattel, the share shall be determined according to the amount of capital contribution; where the amount of capital contribution cannot be determined, it shall be deemed to be equal."

Derivation: quasi common

Article 310 of the Civil Code stipulates: "Where two or more organizations or individuals jointly enjoy usufructuary rights and security interests, the relevant provisions of this Chapter shall apply mutatis mutandis." For example, two or more people share the right to use construction land, the right to contract land management, the right to mortgage, the right to pledge, etc. It refers to "quasi joint ownership", that is, property rights other than shared ownership by several persons or joint ownership. The co ownership system in the title of real right is mainly stipulated for the co ownership of ownership, of course, it also includes the co ownership of usufructuary right and security interest. However, in real life, not only property rights can be shared, but also other property rights, such as equity, intellectual property and other property rights.

The quasi common ownership under the title of real right has the following characteristics: the subject matter of quasi common ownership is the property right beyond the ownership, including usufructuary right and security interest; The relevant provisions of joint ownership shall apply mutatis mutandis to quasi joint ownership. Whether the property other than ownership is jointly owned or jointly owned by shares shall be determined according to their joint ownership relationship; The premise of quasi joint ownership and quasi joint ownership is that there is no special provision in the law regulating the property rights. If so, the special provisions shall apply first. As for intellectual property, equity, etc., the provisions of this Article shall not apply. However, it is worth further studying whether intellectual property, equity, etc. can constitute common ownership.