Property company do sth without authorization uses public section place to obtain accrual how to allocate
-- one quadrangle adjudicates Chongqing course of study of hundred years old and well-known family appoint can accuse owner of company of Yi Shinuo property shares authority issue record
Juridical argument
Property company agrees without owner congress, do sth without authorization uses public section to begin management activity place to reap profit, owner committee has authority to ask its give after deducting reasonable cost return still.
Details of a case
Began 2003, company of property of Nuo of Yi be an official suffers village of hundred years old and well-known family to build an unit to entrust, undertake to this village early days property serves. Village of hundred years old and well-known family established owner committee 2008. Begin from November 2008, property company is in Yi Shi Nuo to was not asked for so that owner congress is the same as the meaning, case that handles legal procedures to fall, do sth without authorization uses property of village of hundred years old and well-known family common ground, elevator undertook building parking space, release the gain activity such as advertisement, achieved communal earnings. On April 11, 2013, course of study of village of hundred years old and well-known family appoint meeting and company of property of Nuo of Yi be an official stopped property to serve a contract. During company of property of Nuo of Yi be an official is providing a service, have not announces the detail of items of an account of communal accrual, when exeunt also not communal accrual and course of study appoint can undertake having sex, be in course of study appoint can put forward to return when still requesting with main body accrual of prep above of unwell case, management cost, already crossed the reason such as effectiveness for a given period of time to give refuse. On September 10, 2014, course of study of hundred years old and well-known family appoint can mention this case lawsuit, company of property of Nuo of requirement Yi be an official returns communal still profit 814395 yuan compensate for capital to take up loss.
Judgment
Cognizance of classics of court of people of division of dam of Chongqing city sanded level ground thinks, do sth without authorization of property service company takes up, punish owner shares part, change its use a function to perhaps undertake management sexual activity, the accrual after owner committee requests property to serve an enterprise to will deduct reasonable cost gives those who pay owner commission, people court should grant to support, property serves an enterprise to assume quote responsibility to the defray of cost and its rationality. In this case, property company agrees without owner congress be about to owner shares a part to run parking space and ad, course of study appoint the accrual after can authority asks property company will deduct reasonable cost gives pay job appoint meeting, use at capital of compensatory and special maintenance or the other utility that owner decides jointly. Property company assumes quote responsibility to the defray of cost and its rationality. Property company counterplea weighs parking space, advertisement the viewpoint of accrual of management cost prep above supports without evidence and be contrary to with constant manage photograph, the court does not grant to collect a letter. But considering about 300 parking space and elevator advertisement establish, operation, maintain inevitable existence cost, all do not apply for judicatory to evaluate in both sides, below the circumstance of audit, the element such as current situation of trade of the case fact that forensic basis finds out, our region, ought to return property company return industry appoint the accrual of the meeting drinks to be 491602.8 yuan surely, namely the income amount that both sides affirms consistently 60% 819338 yuan. Accordingly, forensic court decision: Company of property of Nuo of Yi be an official is returned return industry of hundred years old and well-known family appoint can communal accrual compensates for capital 491602.8 yuan take up loss.
After first instance is adjudged, both sides all refuses to obey, appeal reachs Chongqing city court of the first intermediate people. After quadrangle classics tries, Chongqing made final judgment adjudicate on December 3, 2015: Reject appeal, maintain original judgement.
Review analyse
Public section belongs to all owner to share, if property company agrees do sth without authorization to use public section to develop gain activity without owner congress, owner lawfully dimension authority faces 3 problems:
Issue of seniority of 1. lawsuit main body. The owner commission decision according to owner congress, the suit that because property manages mobile happening,joins on behalf of all owner is arbitral perhaps. This case village of hundred years old and well-known family established line of business of hundred years old and well-known family on March 19, 2013 appoint meeting, was in Chongqing city on October 22, 2013 magnetism of area of dam of sanded level ground implement the mouth is street agency undertakes registering putting on record. Course of study of hundred years old and well-known family appoint can lift in cognizance showed owner congress resolution and owner sign, accredit course of study of hundred years old and well-known family appoint can mention to company of Yi Shinuo property the lawsuit that returns communal still profit, accordingly, course of study of hundred years old and well-known family appoint can authority mentions according to owner congress accredit this case lawsuit.
How does 2. accrual allocate. Property company do sth without authorization uses public section to undertake management sexual activity, course of study appoint the accrual after company of meeting request property will deduct reasonable cost is used at capital of compensatory and special maintenance or the other utility that owner decides jointly, people court should grant to support, property company assumes quote responsibility to the defray of cost and its rationality. In this case, the parking space of open air of public section open up that company of Yi Shinuo property uses village of hundred years old and well-known family, collection stops fare, use elevator to offer ad for ad firm collection advertisement cost, afore-mentioned accrual all belong to collectivity of village of hundred years old and well-known family owner is all, the accrual after company of property of Nuo of Yi be an official deducts reasonable cost should be returned return owner of hundred years old and well-known family.
Problem of 3. lawsuit effectiveness for a given period of time. According to the regulation of civil code general rule, the lawsuit that requests to protect civil rights and interests to people court is 2 years during effectiveness for a given period of time, law has formulary except additionally. During litigant effectiveness for a given period of time from know or ought to know the right by consideration has when enroach on. In this case, although communal accrual begins generation from 2008, but what the property service that company of property of Nuo of Yi be an official has has time to go up is successional, on April 11, 2013 with course of study appoint can remove the ability after the contract exits village of hundred years old and well-known family, when exiting not with course of study appoint meet those who have communal profit have sex, this time place ought to be maintained to know or ought to know the right by the time of enroach on. Accordingly, consideration should begin from April 11, 2013 during litigant effectiveness for a given period of time, course of study of hundred years old and well-known family appoint meeting on September 10, 2014 to forensic to lodge a complaint, did not exceed litigant effectiveness for a given period of time.
This record record date: (2014) the word at the beginning of Sha Famin the 08432nd, (2015) change one Sino-French civilian eventually word the 05661st
Case writes a person: Zhang Zhenhua of court of people of division of dam of Chongqing city sanded level ground
