Article 13 of the Shanghai Residential Property Management Regulations stipulates that residential units for sale shall provide the necessary property management service rooms in the property management area in accordance with the regulations, and the property rights belong to all owners in common. Article 7 of the "Interpretation of the Application of Certain Opinions on the Implementation of the Shanghai Property Management Regulations" stipulates that with regard to the property management rooms, the property management rooms in the residential property management areas completed between July 1, 1997 and August 31, 2003 shall be provided in accordance with the standards configured in the planning; if not configured in the planning, they shall be provided in accordance with the actual use of the property management areas. Provide. There was a prior case in Shanghai, when the owner claimed the right to the original registered property owner of the property management room (a private property company established by the developer's restructuring) through civil litigation, and the judgment of the retrial confirmed that the original registered property owner was not entitled to the property management room in the district, i.e., the initial registration of the property management service room in the district was wrong.

Similar disputes are different from the general litigation on the confirmation of real estate registration. For one thing, for such cases, the plaintiff, despite the large number of parties, is required to follow the provisions of Article 278 of the Civil Code (owners double voting rules), and in practice the plaintiff's rights are difficult to start, and the ability to litigate is weaker than the general civil subject, which objectively leads to the public interest of the owners to suffer continuous damage because of the lack of control, and no one is in charge. Consideration should be given to seek more efficient and fair judicial remedies outside of civil litigation. Secondly, there is no civil legal act between the party claiming the right and the registered owner of the property management room, and the accuracy of the registered information actually depends on whether the registration authority fulfills its duty of reasonable examination, and the result of the examination and registration directly affects the owner's sovereign interest, which has nothing to do with the effectiveness of the civil legal act. The result of the review and registration directly affects the interests of the owners and has nothing to do with the validity of the civil legal act. To confirm the rights through civil litigation, it is a waste of the cost and valuable judicial resources of all owners to defend their rights.

In view of this, according to the Administrative Procedure Law and the Regulations of the Supreme People's Court on Several Issues Concerning the Trial of Housing Registration Cases, the owners of the district with similar dilemmas can try to file an administrative litigation method with the real estate registration authority to request the correction of the wrong real estate registration of the property management service room. In this article, we analyze the administrative lawsuit against the Shanghai Natural Resources Registration Bureau (hereinafter referred to as the "registration authority") for the correction of the wrongly registered property management rooms in a subdistrict through administrative lawsuits, with the help of the case of Shanghai Dabang Law Firm in November 2021. The case analyzes the path and dilemma for the district owners to claim the property rights of the district facilities through administrative litigation, and suggests that the administrative public interest litigation by the procuratorial organs should cover such public interest cases to protect the public rights of the district owners.

Case introduction:

The property management room in the district in question was built in May 1999 by the developer of the district (formerly a state-owned enterprise) as a "supporting facility" for the district, and the land was allocated. "Office". Thereafter the red line map of the plot of land publicized showed that the building monolith was outside the red line of the district. Later, as the district replaced the property company through a democratic process, but as the property company refused to return the property management room to the owner, the district owners voted democratically through administrative litigation to request the registration authority to correct the registration of the property management room ownership of the district in question after the mediation by the competent part of the district was unsuccessful. The case was heard in the first instance by the Shanghai Railway Transport Court, which rejected the petition. The court of first instance held that according to the provisions of 15.1.3 of the Technical Provisions of Shanghai Real Estate Registration (Shanghai Planning Resources Regulations [2021] No. 1), the interested party shall unilaterally apply for the correction of the wrong attribution of rights recorded in the real estate register with the valid legal documents (which is similar to the civil confirmation judgment introduced earlier), the property owners' committee should first seek relief through civil confirmation of rights. The court of second instance held that the act of real estate registration is only a record and public notice of the relevant rights of real estate rights holders. The attribution of real estate rights still depends on the civil legal relations of sale, purchase, common ownership, gift, mortgage, marriage and inheritance, which are the basis of the real estate registration act. The Shanghai Third Intermediate People's Court in the second instance, citing Article 8 of the Regulations of the Supreme People's Court on Several Issues Concerning the Trial of Housing Registration Cases, upheld the first instance judgment and rejected the owner's committee's appeal request.

Reflections on the legitimacy of administrative litigation remedies:

In the judicial practice, there are cases in which the registration of real estate is preceded by civil rights, but all of them are due to the fact that the accuracy of the real estate registration is invalidated or revoked by the judicial confirmation of the "previous" civil act. The administrative litigation is based on the results of the civil judgment and then the trial judgment, but the root cause of the civil confirmation of rights in such cases is the administrative act, which depends on the identification of the legality of the change of civil rights attribution, the plaintiff in the case requested the registration authority to make the registration act belongs to the "transfer registration" under Article 3 of the Provisional Regulations on Real Estate Registration ", rather than "corrective registration".

However, the initial registration of the supporting facilities, including the property management room of the district in question, there is no "forehand" of civil legal acts, there is no transfer of rights attribution due to civil legal acts. In essence, the registration is an administrative act between the interested parties (all owners) and the registration authority, and the property owner recorded in the real estate register is the third party of the administrative act.

Procedurally, according to Article 6 of the Regulations of the Supreme People's Court on Several Issues of Hearing Housing Registration Cases (implemented on 2010.11.18), after the People's Court accepts the administrative case of housing registration, it shall notify the following interested parties who have not sued to participate in the administrative litigation as third parties: the right holders as stated in the housing registration books; the right holders of the registration of objections, corrective registration and advance registration being sued. Other interested parties that can be identified by the people's court shall be listed as third parties by the court according to law.

In substance, according to Article 2 of the Interpretation of the Supreme People's Court on the Application of the Property Rights Part of the Civil Code of the People's Republic of China (I) (Implementation Date: 2021.01.01), if a party has evidence to prove that the record in the real estate register does not correspond to the true state of rights and that he or she is the true right holder of the property rights of the real estate and requests to confirm his or her enjoyment of the property rights, the request shall be supported.

Reflections on Reasonable Definition of Formal Review Obligation of Real Estate Registration:

If the problem of wrong registration of community support facilities is resolved through administrative litigation, the rule of reversal of proof that the defendant (administrative organ) proves the lawfulness of the administrative act by itself in the administrative litigation law needs to be applied. Then, in the administrative litigation of real estate registration, the definition of the scope of the registration authority's obligation to review the registration application materials determines the completion of the registration authority's burden of proof or not and the judicial judgment of the legality of the administrative act.

According to Article 9 of the "Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Housing Registration Cases" (Fa Shi [2010] No. 15), the registration authority has the burden of proof for the legality of the real estate registration act. What is the requirement of proof for "legality"? According to the lawyer, the registration authority should conduct a "prudent and reasonable" examination of the application materials for the initial registration of the property management service room, including both the substantive examination of whether the application documents comply with the laws, regulations and normative documents promulgated and implemented at the time of the initial registration application, and the examination of the authenticity of the content of the application documents. For the existence of information that is clearly contrary to the provisions of the law, if only in the formal review of the availability of materials, can not meet the legal requirements of the legality of the review.

According to Article 23 of the Urban Planning Law, the development of new urban areas and the reconstruction of old areas must adhere to the principles of unified planning, reasonable layout, appropriate to local conditions, comprehensive development and supporting construction. Article 13 of the Shanghai Residential Property Management Regulations stipulates that residential units for sale shall provide property management service rooms necessary for the property management area in accordance with the regulations, and the property rights shall be shared by all owners; the proceeds of the property management service rooms shall be used for funding the activities of the owners' committee and supplementing the property maintenance fund.

According to the Provisional Regulations on Real Estate Registration (implementation date: 2014.11.24), Article 18 and 19, the real estate registration agency shall check whether the registration application violates the provisions of laws and administrative regulations when accepting applications for real estate registration. For the first registration of the ownership of buildings and structures such as houses, the real estate registration authority may conduct a field view of the real estate applied for registration (no adjustment was made in the 2019 amendment). The real estate registration authority shall substantially review the existence of illegal matters at the time of the original registration. The provisions of Article 9 of the Regulations of the Supreme People's Court on Several Issues Concerning the Trial of Housing Registration Cases (implementation date: 2010.11.18) stipulate that the registration authority shall bear the burden of proof for the legality of the housing registration act being sued.

If, at the time of the application for initial registration of supporting facilities (including property management rooms) in the district, all the aforementioned laws and regulations have been promulgated and implemented; the "supporting facilities" recorded in the table of construction projects attached to the Construction Project Planning License (one of the necessary registration materials) presented by the registration authority, and the "Confirmation of Land Use Realm" issued by the Rights and Cadastre Section of the Housing and Land Bureau in "The land use boundary confirmation letter issued by the Housing and Land Bureau records that the nature of the land is "allocated"; however, the right holder of the initial registration of the final property management service room is a private property company established by the developer's restructuring, and the use of the house is "office"; then, for the content of the application, it is not necessary to register the application. "; then, for the application content and purpose of the application materials there is an obvious contradiction, the registration authority's prudent and reasonable review of the duty of care should be higher than the formal review.

Reflections on the proposal for procuratorial administrative public interest litigation to cover such disputes:

To summarize, disputes over the ownership of property management rooms in small communities generally have a large time span of disputes, incomplete real estate registration data and complicated original registration data, and complicated procedures and facts, which can easily be settled and objectively damage the public interest of the society and even the national interest. The administrative litigation of real estate registration of subdivision supporting facilities, if it involves the initial registration of allocated land changed to a grant, there may be a problem of legal compliance of the grant of state-owned land use rights.

According to Article 21(1) of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Public Interest Litigation Cases (2020 Amendment), the people's procuratorates, in performing their duties, find that the administrative organs with supervisory and management responsibilities in the fields of ecological environment and resource protection, food and drug safety, state-owned property protection and state-owned land use rights transfer have exercised their powers illegally or failed to If the people's procuratorate finds that the administrative organs responsible for supervision and management in the fields of ecological environment and resource protection, food and drug safety, state-owned property protection, state-owned land use and transfer have exercised their powers illegally or failed to act, resulting in infringement of state interests or social public interests, it shall make procuratorial suggestions to the administrative organs to urge them to perform their duties according to law. If the procuratorial organs can carry out administrative public interest litigation to supervise such cases, it will help to balance the unequal litigation status of public facilities rights holders and administrative organs, and help to settle such disputes, and fundamentally solve the consequences of continuous infringement caused by the wrong original registration to many rights holders, and maintain the public credibility of property rights.

A few tips on the maintenance of rights in such cases:

According to the existing judicial practice, for the district property management service room for the right to dispute is still mainly civil litigation, whether it can be resolved through administrative litigation or pending the results of the trial supervision procedures of the public interest agency cases, as well as the establishment of other types of cases. The attorney combined with the case processing, summarized the following tips for other rights owners to refer to.

I .  pay attention to the issue of legal retroactivity. According to the provisions of Article 2 of the Supreme People's Court on the trial of housing registration cases, the people's court shall not accept any administrative lawsuit filed by citizens, legal persons or other organizations against the housing registration act made by the housing registration agency before the administrative litigation law (October 1, 1990).

II .  pay attention to the issue of prosecution period. The provisions of the Administrative Procedure Law and the judicial interpretation of the prosecution period: Article 45 of the Administrative Procedure Law (the prosecution period for administrative reconsideration), Article 46 (the prosecution period for administrative acts), Article 47 (the prosecution period for applying to administrative organs to perform their legal duties to protect their personal rights, property rights and other legitimate rights and interests), etc. Article 64 of the Interpretation of the Supreme People's Court on the Application of the Administrative Procedure Law of the People's Republic of China stipulates that if an administrative organ does not inform a citizen, legal person or other organization of the time limit for prosecution when making an administrative act, the time limit for prosecution shall be calculated from the date when the citizen, legal person or other organization knew or should have known of the time limit for prosecution, but the maximum time limit shall not exceed one year from the date when the citizen, legal person or other organization knew or should have known of the content of the administrative act .

III .  pay attention to the administrative appeal through the letter and petition. In practice, such as administrative organs to respond to letters and petitions in the form of letters and petitions, the review of the letters and petitions for the opinion is "in the name of letters and petitions to respond to the administrative authority", fully with the basic characteristics of specific administrative acts can be sued, should be included in the scope of administrative litigation, through the judicial process for review.

IV .  pay attention to the laws and regulations at the time of registration of supporting facilities. Take the city as an example, "Shanghai residential property management regulations" was implemented on July 1, 1997, if the residential community planned and built before then cannot apply the provisions of Article 13 of the supporting housing.

V .  Pay attention to the difference in legal effect between the real estate register and the real estate title certificate. The real estate register is managed by the registration agency. The certificate of title to real estate is the proof that the right holder enjoys the property right of the real estate, and the matters recorded therein shall be consistent with the real estate register; if the records are inconsistent, the real estate register shall prevail unless there is evidence to prove that the real estate register is indeed wrong.

VI .  Pay attention to the differences in the types of real estate registration. According to the Provisional Regulations on Real Estate Registration, the registration of real estate refers to the act of the real estate registry recording the attribution of real estate rights and other legal matters in the real estate register according to law. Real estate registration is divided into first registration, change registration, transfer registration, cancellation registration, correction registration, objection registration, advance registration, seizure registration, etc. The real estate registry shall record all kinds of registration matters accurately, completely and clearly in the real estate register according to law. No one shall damage the real estate register, except for correction according to law shall not modify the registration matters. If the interested party believes that the matters recorded in the real estate register are wrong, he or she may apply for correction of the registration.

VII . pay attention to the issue of confirmation of the main qualification of the plaintiff in litigation. The owners' committee shall have the right to file a lawsuit after the owners have fulfilled the voting procedures in Article 278 of the Civil Code. In practice, the owner's committee may not exclude the process of seeking evidence and explanation from the business guidance department before the lawsuit is filed, and attention should be paid to the communication between the parties.

VIII .  Pay attention to the issue of litigation case acceptance fee. If in accordance with the civil rights in rem procedures, litigation fees in accordance with the amount of real estate assessment to determine, for downtown housing age in more than 20 years of the district, property management services for housing if the average price of the district housing prices accounting for litigation fees, case acceptance fees are not a small amount , objectively may increase the difficulty of owners to defend their rights to vote, whether there are other reasonable assessment of the subject matter, but also the civil case needs to be filed in advance Consideration of the issue.