In my previous article, I wrote "Statistics and Analysis of Residential Special Maintenance Fund Dispute Cases in Nanning City in 2019." That article primarily used the "Alpha Case Database" as its foundation, collecting and organizing 162 effective judgments from residential special maintenance fund dispute cases tried by the courts in Nanning City and its surrounding counties in 2019. Based on this data, I performed statistical data analysis regarding the distribution of the number of residential special maintenance fund dispute cases, the distribution of case numbers across trial levels, the characteristics of the litigation subjects involved, and the judgments rendered in these cases.

Next, I will bring you the "Analysis Report on Residential Special Maintenance Fund Dispute Cases in Nanning City in 2019." This article mainly summarizes the judgment rules involved in residential special maintenance fund dispute cases in Nanning City in 2019 (special maintenance fund return dispute cases after the rescission of the "Commercial Housing Sales Contract" and special maintenance fund dispute cases in which property service enterprises claim from owners), and seeks paths for the prevention and handling of residential special maintenance fund disputes.

Article 2 of the "Measures for the Management of Residential Special Maintenance Funds" (hereinafter referred to as the "Management Measures") promulgated by the Ministry of Construction (now abolished) and the Ministry of Finance on February 1, 2008, stipulates that: "These measures shall apply to the deposit, use, management and supervision of special maintenance funds for commercial housing and after-sale public housing. The residential special maintenance funds mentioned in these measures refer to the funds specifically used for the maintenance, renewal and renovation of the common parts and common facilities and equipment of residential buildings after the expiration of the warranty period." The "Management Measures" stipulates the deposit, use, management and supervision of special maintenance funds, but there are no provisions on how to handle special maintenance funds after the rescission of the commercial housing sales contract. How to handle the special maintenance funds after the rescission of the commercial housing sales contract? I have classified and sorted out the judgment rules of several cases for your reference.

(1) Judgment Rule 1: After the rescission of the "Commercial Housing Sales Contract", the special maintenance fund paid by the home buyer should be returned, but it does not need to claim the return separately, and can be offset against the payment payable by the home buyer in this case, and then the real estate developer will return it to the home buyer

[Court's Decision] The defendant Li Naixia paid the plaintiff a special maintenance fund of 8878.10 yuan on January 28, 2016, and paid the plaintiff a down payment of 177699 yuan on January 30, 2016.

[Court's Opinion] 6. Regarding the refund of the payment made by the defendant Li Naixia. According to the evidence such as the real estate sales invoice and receipt submitted by the plaintiff, the defendant has paid the plaintiff a special maintenance fund of 8878.10 yuan and a down payment of 177699 yuan. The third party ICBC Minzu Branch also issued a bank loan of 530,000 yuan to pay for the defendant's house purchase. So far, the defendant has paid the plaintiff a total of 716577.1 yuan for all the house payments and special maintenance funds. According to Article 97 of the "Contract Law of the People's Republic of China", "After the contract is rescinded, if it has not been performed, the performance shall be terminated; if it has been performed, the parties may request to restore the original state, take other remedial measures, and have the right to claim compensation for losses according to the performance and the nature of the contract." Since the commercial housing sales contract involved in the case has been rescinded, the plaintiff shall refund the aforementioned amount of 716577.1 yuan paid by the defendant to the plaintiff, but the defendant does not need to claim the refund separately, and can be offset against the payment payable by the defendant in this case, and then the plaintiff shall refund it to the defendant.

[Judgment Item] 7. The plaintiff Guangxi Jiahe Real Estate Group Co., Ltd. shall refund the defendant Li Naixia a special maintenance fund of 8878.10 yuan, a down payment of 177699 yuan, and a bank loan of 530,000 yuan, totaling 716577.1 yuan; the payment payable by the defendant Li Naixia determined in the above items 3, 4, 5, and 6 shall be offset against the refund payable by the plaintiff Guangxi Jiahe Real Estate Group Co., Ltd. determined in item 7.

[Case Index] Nanning Xingning District People's Court (2019) Gui 0102 Minchu No. 4285 First-Instance Civil Judgment

(2) Judgment Rule 2: In the case of rescission of the "Commercial Housing Sales Contract" in which the home buyer is the defendant, the court will not deal with the special maintenance fund that the home buyer has already paid

[Court's Decision] On the day the defendant Liu Yan signed the contract, he paid the plaintiff a total of 10537 yuan for special maintenance funds, advance registration fees, and property registration fees.

[Court's Opinion] The court's opinion does not have a decision on the handling of the special maintenance fund.

[Judgment Item] The judgment items do not have any judgment content on the handling of the special maintenance fund.

[Case Index] Nanning Xingning District People's Court (2019) Gui 0102 Minchu No. 6219 First-Instance Civil Judgment

(3) Lawyer's Summary

The above two cases are the judgment rules on how to handle special maintenance funds after the rescission of the "Commercial Housing Sales Contract" in this case analysis report. The two cases reflect the inconsistent judgment standards of the court's special maintenance fund handling methods. I carefully analyzed and compared the similarities and differences between the two cases. The similarities mainly include: 1. The courts and presiding judges of the two cases are the same; 2. The facts of the two cases are basically the same, including but not limited to the same real estate developer suing the home buyer to rescind the commercial housing sales contract, and the home buyers have paid special maintenance funds, etc.; the main differences are: In the first case, the court made a decision and handled the special maintenance fund after the rescission of the "Commercial Housing Sales Contract", that is, after the rescission of the "Commercial Housing Sales Contract", the special maintenance fund paid by the home buyer should be returned, and it does not need to claim the return separately, and can be offset against the payment payable by the home buyer in this case, and then the real estate developer will return it to the home buyer, and the court confirmed it in the court's decision and judgment part of the judgment; In the second case, the court did not make a decision and handle how to handle the special maintenance fund after the rescission of the "Commercial Housing Sales Contract", that is, it was not confirmed in the court's decision and judgment part of the judgment.

I will not discuss and explore the reasons for the similarities and differences between the two cases here. Judging from the results of the judgment, it can be concluded that: In the case of rescission of the "Commercial Housing Sales Contract" in which the home buyer is the defendant, if the judgment does not recognize that it can be offset or the judgment item does not order the return, the home buyer needs to file a separate lawsuit to claim the special maintenance fund that has been paid.

Based on the aforementioned conclusion, in the case of rescission of the "Commercial Housing Sales Contract", from the perspective of the home buyer, in order to avoid litigation fatigue, the home buyer can file a counterclaim or raise a defense of offset in the court hearing for the special maintenance fund that has been paid. However, in view of the actual situation of the aforementioned two cases, it is recommended to take the method of counterclaim to be more prudent.

In the process of providing property services for the community, whether the property service enterprise has the right to collect special maintenance funds from the owners, and whether the owners can refuse to pay special maintenance funds to the property service enterprise, I have classified and sorted out the judgment rules of several cases for your reference.

(1) Judgment Rule 1: Property service enterprises may claim outstanding public maintenance funds from owners according to the agreement.

1. Judgment Rule: Property service enterprises may claim outstanding public maintenance funds from owners according to the pre-property service agreement.

[Court's Opinion] 2. Regarding the issue of whether the defendant should pay the plaintiff's property management fees, public maintenance funds, shared water and electricity fees, elevator operation and maintenance fees, and liquidated damages. According to the agreement, the defendant should fully pay the plaintiff's property management fees and public maintenance funds as agreed. However, the defendant failed to fully fulfill the payment obligations, owing the plaintiff 562.8 yuan for property fees and 112.8 yuan for public maintenance funds from January 1, 2016, to December 31, 2016, totaling 675.6 yuan; owing 562.8 yuan for property fees and 112.8 yuan for public maintenance funds from January 1, 2017, to December 31, 2017, totaling 675.6 yuan; owing 562.8 yuan for property fees and 112.8 yuan for public maintenance funds from January 1, 2018, to December 31, 2018, totaling 675.6 yuan. The defendant should pay the above fees to the plaintiff.

[Case Index] Long'an County People's Court (2019) Gui 0123 Civil First Instance No. 745 Civil Judgment

2. Judgment Rule: If the pre-property service contract stipulates that the owner should pay the special maintenance fund in advance to the property service enterprise, the owner shall pay.

[Court's Opinion] The court of first instance held that: Regarding the property fee, maintenance fund, and liquidated damages, according to Article 6 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Property Service Dispute Cases": "If the owner refuses to pay the property fee without justified reasons after being urged in writing, or still fails to pay within a reasonable period of urging, the people's court shall support the property service enterprise's request for the owner to pay the property fee." According to the agreement between the two parties in the "Pre-Property Management Service Agreement" regarding the property fee, maintenance fund, and liquidated damages, and Tongde Property urged Zhang Youqi in writing by letter, but Zhang Youqi still refused to pay, then Zhang Youqi should pay Tongde Property a property fee of 4417 yuan (101.54㎡×0.5 yuan×87 months) and a maintenance fund of 883.4 yuan (101.54㎡×0.1 yuan×87 months).

The Second Instance Court held that: The appellant argued that the appellee had no right to collect the special maintenance fund belonging to the owner. However, the pre-property service contract stipulated that the appellant should pay this fee in advance to the appellee. Although the fee belongs to all owners, the appellee should use the fee according to the procedures and purposes stipulated in the pre-property contract, but this cannot exempt the appellant from the obligation to pay in advance. The appellant should pay the appellee in advance according to the pre-property service contract. Whether the appellee uses it as agreed is beyond the scope of this case.

[Case Index] Nanning Intermediate People's Court of Guangxi Zhuang Autonomous Region (2019) Gui 01 Civil Final No. 3691 Second Instance Civil Judgment

(2) Judgment Rule 2: Property service enterprises may collect special maintenance funds from owners based on the authorization of the owners' committee.

[Court's Opinion] Regarding the issue of special maintenance funds: The "Nanning Rome Garden Property Service Entrustment Contract" stipulates that if a special maintenance fund has not been established, the owners' committee entrusts the plaintiff to collect fees from the owners at a rate of 0.1 yuan/square meter of the property's construction area per month for use as a maintenance fund. The special maintenance fund is: 0.1 yuan/household·month × 114.06 square meters × 10.6 months = 120.9 yuan. Now the plaintiff claims that the defendant should pay a special maintenance fund of 120.8 yuan, which is exercising its rights within the scope prescribed by law and is not inappropriate. This court supports it.

[Case Index] Nanning Jiangnan District People's Court (2019) Gui 0105 Civil First Instance No. 5265 Civil Judgment

(3) Judgment Rule 3: The court will not support the portion of the special maintenance fund claimed by the property service enterprise that exceeds the agreed amount.

[Court's Opinion] 3. Regarding the issue of maintenance funds. According to Article 54 of the "Property Management Regulations", "Owners of residential properties, houses, non-residential properties in residential areas, or non-residential properties connected to the structure of a single residential building shall pay special maintenance funds in accordance with relevant national regulations. Special maintenance funds belong to the owners." The owner is the obligor and beneficiary of paying special maintenance funds, and the property service enterprise is only responsible for collecting and managing them on behalf of the owners. Moreover, the property service contract involved in this case stipulates that "the special maintenance fund shall be collected at 0.25 yuan/month per square meter of construction area." Therefore, the defendant should pay the plaintiff a special maintenance fund for the period from August 2014 to May 1, 2018, calculated as 360.1 yuan (89.96 square meters × 0.25 yuan/month·square meter × 44 months). Now the plaintiff claims that the defendant should pay a special maintenance fund of 360.1 yuan for the period from April 2017 to April 2018, which exceeds the aforementioned amount. This court will not support the excess portion.

[Case Index] Nanning Xingning District People's Court (2019) Gui 0102 Civil First Instance No. 2910 Civil Judgment.

(4) Judgment Rule 4: After the property service enterprise withdraws from the owner's community and no longer provides property services to the owner's community, the property service enterprise shall transfer the special maintenance fund to the owners' committee.

[Court's Opinion] 3. Regarding the issue of whether the plaintiff is qualified to claim special maintenance funds. The defendant argued that the special maintenance funds belong to the owners, and the plaintiff only has the right to manage the maintenance funds on behalf of the owners, and the plaintiff is not the subject of collecting special maintenance funds. According to Article 10 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Property Service Dispute Cases": "After the rights and obligations of the property service contract are terminated, the people's court shall support the owners' committee's request for the property service enterprise to withdraw from the property service area, transfer the property service rooms and related facilities, as well as the relevant materials necessary for property services and the special maintenance funds managed on its behalf." And the agreement on special maintenance funds in the "Pre-Property Management Service Agreement" between the two parties: "Article 7: Party B (defendant) shall start paying the special maintenance funds for the common parts and common facilities and equipment of the house to Party A (plaintiff) when the house is delivered for use." Combining the facts of this case, the plaintiff opened a special bank account as a special fund maintenance account, which complies with relevant legal regulations, and the plaintiff has the right to manage the special maintenance funds on behalf of the owners. Therefore, it is not inappropriate for the plaintiff to claim maintenance funds from the defendant. However, after the plaintiff withdraws from the defendant's community and no longer provides property services to the defendant's community, the plaintiff shall transfer the special maintenance funds to the owners' committee.

[Case Index] Binyang County People's Court (2019) Gui 0126 Civil First Instance No. 677 Civil Judgment.

(3) Lawyer's Summary

It can be seen from the aforementioned cases of property service enterprises claiming special maintenance funds from owners that: property service enterprises claim special maintenance funds of the agreed amount from owners based on relevant agreements, such as pre-property service agreements and property service agreements; owners need to pay property service enterprises special maintenance funds that comply with the agreement, and can refuse to pay the portion of special maintenance funds that does not comply with the agreement or exceeds the agreement; after the property service enterprise withdraws from the community service, it shall transfer the special maintenance funds to the owners' committee.