On October 30, Beijing's Chaoyang District Court dispatched
about 100 bailiffs and judges to 13 residential districts to
enforce an earlier decision ordering the proprietors of 57
households to pay their property management fees. Sixteen house
owners who were already in arrears and refused to pay were detained
for 15 days.
For effect, the court invited television crew and journalists to
cover the event.
The repercussions of the event are still felt one month
later.
On November 26, the court enforced another decision in similar
fashion.
From November 25 to 29, Beijing News distributed 100
questionnaires to residents involved and received 82 valid
replies.
According to the survey results published in the paper on
November 30, 65.9 percent of respondents said they were not
satisfied with services provided by the property management
companies. Even after having been forced to pay the management fee,
73.2 percent of respondents said the companies didn't improve their
services, while 68.3 percent believed the incident worsened their
relationship with the management companies.
Beijing's real estate boom has seen a corresponding increase in
the number of lawsuits involving property management disputes. Of
some 7,000 such cases, property management companies won more than
90 percent. Dissatisfied with the companies' poor service, and
disregarding the "unfair" court decisions, many householders
continue to withhold payment of management fees in retaliation.
Although it can be said that the court was merely lawfully
enforcing a court order, questions have arisen with regard to its
reasonableness. The China Economic Times on November 23
published a discussion on the subject.
"The court made residents pay by force, making examples of them
as a warning to others," Zhang Ming, vice secretary-general of
Beijing Consumers' Association, was quoted as saying.
"This violates the principle of impartiality of the law. There
are many other instances where one could argue the courts ought to
use force: ordering employers to pay migrant workers their
salaries, for instance. But the courts haven't done so."
There are many ways to enforce a court order: freezing bank
accounts, for example. ?
"The Chaoyang court might have acted lawfully, but it was
inappropriate for them to have ordered residents to be dragged out
of their homes in full view of everyone, especially in the presence
of the media," Wang Zhong, vice president of civil court at
Beijing's No.1 Intermediate People's Court, said, commenting on the
controversial case.
Qiu Baochang, a lawyer from Beijing Jiahui Law Firm, points out
that court actions aren't necessarily a solution to the problem.
This is because the root of the problem lies in shortcomings of the
regulations in force.
A property developer decides on the property management company
for a particular project and determines the management fee
residents are to pay. A property management contract is then
drafted and presented to potential buyers as a supplement to the
sale contract. House-buyers have no say in the matter. Moreover,
there is usually no evaluation or supervision mechanism for the
services provided by the property managers.
The property management entrustment contract stipulates that
owners must pay the management fee regularly, but doesn't specify
under what circumstances they can refuse payment. It's an unfair
contract that sabotages residents' chances in court, according to
Li Renyu, dean of Beijing Technology and Business University's
School of Law.
"In terms of legal knowledge and proceedings, individual
proprietors are in weak bargaining position compared with the
well-organized property developers and property management
companies," Li said. "To tackle the problem at the root, the
current model of property management needs to be perfected in line
with a fair and reasonable principle to take into account the
interests of both sides."
China Youth Daily reported on November 15 that an open
letter written by Beijing lawyer Li Jingsong published on the
Internet urging Chaoyang court's president to take the blame and
resign, has received much public support.
It was revealed that residents were not informed in advance that
the court would be using such measures of enforcement. The court
claims they posted an announcement, but law experts argue that each
and every resident ought to have been notified; a circular ought to
have been delivered to every door.
According to property management regulations, residents are
theoretically at liberty to set up committees to oversee the work
of property management companies. They can even elect to appoint a
new one.
But, as China Newsweek revealed, residents of the 13
districts involved in the court case had been wrangling with their
property management companies for four years. Further, their
applications to set up residents' committees were repeatedly
refused by the authorities.
The China Economic Times reports that Beijing currently
has over 3,000 residential districts and 2,458 property management
companies. But because of poor organization and a lack of funds,
only 339 residents' committees were established in the first six
months of the year.
(China.org.cn by Shao Da, December 2, 2005)
