· Document Number：No.7 [2009] of the Supreme People’s Court

· Area of Law： Civil Law

· Level of Authority： Judicial Interpretation

· Date issued：05-14-2009

· Effective Date：10-01-2009

· Issuing Authority： Supreme People's Court

· Status： Effective

Announcement of the Supreme People's Court
The Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Disputes over Partitioned Ownership of Building Areas, which was adopted at the 1464th meeting of the Judicial Committee of the Supreme People's Court on March 23, 2009, is hereby promulgated, and shall come into force on October 1, 2009.
May 14, 2009
Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Disputes over Partitioned Ownership of Building Areas
(No.7 [2009] of the Supreme People's Court)
To correctly hear the disputes over partitioned ownership of building areas and protect the legitimate rights and interests of the parties concerned, this Interpretation is formulated according to the Real Right Law of the People's Republic of China and in light of the civil trial practices.
Article 1 Persons who have acquired ownership over the exclusive parts of a building by registration or under Section 3 of Chapter II of the Real Right Law shall be the owners mentioned in Chapter VI of the Real Right Law.
Persons who have legally possessed the exclusive parts of a building based on the civil juristic act of commercial house trading with the construction entity but have not registered their ownership can be determined as the owners mentioned in Chapter VI of the Real Right Law.
Article 2 Any premise, parking space, booth or any other specific space meeting the following conditions within the building area shall be determined as an exclusive part mentioned in Chapter VI of the Real Right Law:
1. it has an independent structure and can be clearly distinguishable;
2. it can be used independently; and
3. it can be registered under the name of a specific owner.
Terrace or any other space that has been planned as an exclusive part of a specific premise and has been listed by the builder in the purchase contract of the premise shall be determined as a component part of the exclusive parts mentioned in Chapter VI of the Real Right Law.
The term “premise” as mentioned in the Paragraph 1 of this Article includes a whole building.
Article 3 In addition to the common parts specified by laws and administrative regulations, the following parts within the building area shall also be determined as the common parts mentioned in Chapter VI of the Real Right Law:
1. the foundation, bearing structure, external walls, roofs and other basic structures of the building; passageways, staircases, lobbies and other parts for public passage; firefighting, lighting and other appurtenant establishments and facilities; and refuge stories, equipment stories or rooms and other structural parts; and
2. other places and facilities other than the exclusive parts of owners, municipal parts or those owned by other right holders.
Owners shall share the right to use the land used for building with regard to the land within the building areas, except for the land exclusively owned by specific owners in a whole building, urban public roads and green land.
Article 4 An owner's unpaid use of the roof or any other common part such as the external wall corresponding to his exclusive part for the purpose of meeting the reasonable demands of the specific functions of his exclusive part, such as his residential house or house used for business purposes, shall not be determined as a tort unless it violates any of the laws, regulations or the management stipulations or has injured the legitimate rights and interests of any other person.
Article 5 The builder's disposal of parking spaces and garages to owners in the form of sale, gift or lease according to the designated proportion shall be deemed as to “satisfy, above all else, the needs of the owners” as mentioned in Paragraph 1 of Article 74 of the Real Right Law.
The term “designated proportion” as mentioned in the preceding paragraph refers to a designated proportion between the parking spaces and garages designed for parking cars within the building are and the number of premises.
Article 6 In addition to those that are within the building area and planned for parking cars, the parking spaces that occupy any road or any other place commonly owned by owners shall be the parking spaces as mentioned in Paragraph 3 of Article 74 of the Real Right Law.
Article 7 The change of the purposes of the common parts, use of the common parts for business operations, disposal of the common parts and issues that shall be jointly decided by owners as decided by the owners' assembly or prescribed in the management stipulations shall be the “other important issues” concerning the common ownership and the right to common management as mentioned in Item 7, Paragraph 1 of Article 76 of the Real Right Law.
Article 8 The area of exclusive parts and the total area of the building as mentioned in Paragraph 2 of Article 76 and Article 80 of the Real Right Law shall be determined by the following methods:
1. the square meters of exclusive parts shall be computed by the square meters recorded in the real estate registrar, or by the actually measured square meters provided by the surveying and mapping agency for the time being if no realty registration has been made yet, or by the square meters stipulated in the house purchase contract if no actual measurement has been made yet; and
2. the total square meters of the building shall be the sum of the results from the above-mentioned method.
Article 9 The number of owners and the total number of owners as mentioned in Paragraph 2 of Article 76 of the Real Right Law can be determined by the following methods:
1. the number of owners shall be computed by the number of exclusive parts with each exclusive part for each owner, but the parts that have not been sold by the builder or have been sold but not delivered yet or the parts owned by a same buyer shall be computed under one owner; and
2. the total number of owners shall be the sum of the results from the above-mentioned method.
Article 10 Where an owner uses his house for business purposes without getting the permit of any other owner with an interest therein as mentioned in Article 77 of the Real Right Law, the request made by the owner for removing impairment, eliminating danger, restoring to the original state or compensating for losses shall be upheld by the people's court.
If the owner who uses his residential house for business purposes makes a claim under the pretext that he has acquired permit from a majority of owners with an interest therein, it shall not be upheld by the people's court.
Article 11 Where an owner uses his house for business purposes, the other owners of the building shall be the “owners with an interest therein” as mentioned in Article 77 of the Real Right Law. Any other owner of another building within the building area who claims that it has an interest relationship with him shall prove that it has exerted or might exert an adverse impact on the value of his house or quality of his life.
Article 12 An owner's request, under Paragraph 2 of Article 78 of the Real Right Law, to the people's court for repealing a decision made by the owners' assembly or the homeowners' association under the pretext that the decision has injured his legitimate rights and interests or violated the prescribed procedure shall be made within one year after he knows or should have known about the decision made by the owners' assembly or the homeowners' association.
Article 13 An owner's request for disclosing or consulting any of the following information that shall be disclosed to owners shall be upheld by the people's court:
1. information about the raising and use of the funds for maintaining the building and its appurtenant facilities;
2. the management stipulations, the rules of procedure for the owners' assembly, and the decisions and minutes of the owners' assembly or the homeowners' association;
3. the realty service contract, the use of common parts and the income therefrom;
4. information about the disposal of the spaces and garages for parking vehicles in the building area; and
5. other information that shall be disclosed to owners.
Article 14 Where the builder or any other person occupies or disposes of the common parts of owners, changes their functions or uses them for business operations without permit, any right holder's request for eliminating impairment, restoring to the original state, nullifying the disposition or compensating for his losses shall be upheld by the people's court.
If the common parts are used for business operations without approval as mentioned in the preceding paragraph, any right holder's request for the wrongdoer to use the income, after deducting the reasonable cost, for supplementing the special maintenance funds or any other purpose decided jointly by owners shall be upheld by the people's court. The wrongdoer shall bear the burden of proof for the cost and its reasonability.
Article 15 Any of the following acts committed by an owner or any other person in violation of any law, regulation, any of the relevant compulsory standards of the state, management stipulation or any decision made by the owners' assembly or the homeowners' association can be determined as an “act injuring the legitimate rights and interests of other persons” as mentioned in Paragraph 2 of Article 83 of the Real Right Law:
1. damaging the bearing structure of a premise, damaging or illegally using the electric power, fuel gas and firefighting facilities, or placing any hazardous or radioactive article in a building that endangers the safety of the building or disrupts the normal functioning of the building;
2. destructing or changing the facade such as shape or color of the external walls of a building in violation of the relevant provisions;
3. decorating or furnishing a premise in violation of the relevant provisions; or
4. expanding or rebuilding in violation of the relevant regulations, or trenching on or excavating any public passage, road, site or any other common part.
Article 16 Where any dispute over the partitioned ownership of building areas concerns the lessee, borrower or any other realty user of the exclusive parts, this Interpretation shall analogically apply.
The lessee, borrower or any other realty user of the exclusive parts shall enjoy their rights and fulfill their obligations according to laws, regulations, management stipulations, the decisions made by the owners' assembly or the homeowners' association according to law or the agreements reached with owners.
Article 17 The term “builder” as mentioned in this Interpretation includes an underwriter that purchases realty which has not been put for sale at the price stipulated in the exclusive sales contract and then sells the property in the underwriter's own name after the exclusive sales period expires.
Article 18 The people's courts shall, in the trial of cases about partitioned ownership of building areas, base their judgment on laws and regulations when solving disputes over real right ownership.
Article 19 This Interpretation shall come into force on October 1, 2009.
For cases of disputes over partitioned ownership of building areas resulting from acts committed after the Real Right Law comes into force, this Interpretation shall apply.
For cases for which a final decision has been made before this Interpretation comes into force, if the parties concerned apply for retrial or it is decided after this Interpretation comes into force that they shall be retried according to the trial supervision procedure, this Interpretation shall not apply.