Brief of the case

    A community is a commercial and residential dual-use community, which is invested by B company. The first to fourth floors of the building are commercial, belonging to Company B, the fifth floors are elevated, and the sixth to 32nd floors are residential, which were delivered to the buying owners in 2016.

   From the delivery of the community to 2020, the property management services will be provided by the property management company under B Company. During this period, Company B installed the central air conditioning outdoor unit on the 5th floor and built a dormitory on the 5th floor.

    In 2020, the Owners Committee of A residential area changed its property service company. In 2021, the owners' Committee conflicted with Company B over the ownership of the five elevated floors. After the negotiation was fruitless, the owners committee of A community sued Company B to the court, requiring Company B to pay the occupation fee of the 5th floor overhead floor site from 2016 to 2021, and restore the occupied area of the 5th floor overhead floor air conditioning unit to its original state.

    Company B argues that the rights of the construction area not included in the public share area agreed in the housing sale contract signed with the owner of A residential area belong to the seller, and the 5th floor elevated floor is not included in the public share area, so Company B enjoys the rights and interests of the 5th floor elevated floor.

    According to the relevant provisions of the Civil Code, the judicial interpretation for hearing disputes over the ownership of buildings, and the Regulations on the Transfer of Real Estate in the Shenzhen Special Economic Zone, the rights and interests of the parking lot and advertising in the community can be agreed by the developer, and the common parts of other buildings in the community should be owned by the owner.

Court hearing

    About the ownership of the elevated floor on the 5th floor of A community. The overhead layer does not belong to the part of the developer's agreed rights and interests, and it shall be identified as a common part of the owners and jointly managed by the owners. As a developer, Company B, in the house sale contract signed with the owner, agreed that the elevated floor which belongs to the owner is shared by the developer to enjoy the corresponding rights and interests. This agreement actually excludes the legal rights of joint management and joint decision of the owners, which is contrary to the above legal provisions, and is an invalid clause and does not have legal effect. Therefore, Company B's claim to the overhead floor right is groundless in law, and it should pay the ownership fee to the owners committee of the A community.

    About the restoration of the occupied area of the air conditioning host on the 5th floor overhead floor. A community is A commercial residential dual-use community, and Company B is the right holder of the commercial part of the community from the 1st floor to the 4th floor, as well as the owner of the community, and has the right to make reasonable use of the common part. In the case that no corresponding equipment installation space is planned from the 1st floor to the 4th floor, the air conditioning unit is a necessary equipment, and it is reasonable to install it on the overhead floor.

    In summary, the court ruled that Company B pays the owner committee of A community the occupancy fee of the overhead floor on the 5th floor of the community. The judgment has taken effect.

Judge's statement

    The elevated floor of the community is the same as the road, green space, stairs and other areas in the community, which belong to the common part of the owner. For the common part, the owners have the right to jointly enjoy and manage. The income generated by the common part is also owned by all the owners after deducting reasonable costs. At the same time, while enjoying the rights, the owner also has the obligation to share the management fee and maintenance fee of the common part. In this case, the owner of A community has the right to the overhead floor, and Company B should pay the occupancy fee.

    For real estate developers, construction should be strictly in accordance with the requirements of planning and design, timely delivery of public supporting facilities such as overhead floors, and shall not improperly infringe on the public interests of owners. For owners, when buying houses, they should carefully check the purchase contract and the planning drawings of the community, and clarify the planning use and equity ownership of special areas such as elevated floors. If it is found that the developer has unauthorized changes in the use of overhead floors and other acts that damage the rights and interests of the owners, it can seek legal ways to protect its rights in time through the owners committee.

    This article is transferred from the "Shandong High Law" wechat public number, here to express our thanks!