Droit chinois copropriété
La Chine n'a pas de statut de la copropriété spécifique en dépit d'un marché immobilier en pleine croissance et d'une popularité croissante des copropriétés. Même si les appartements constituent le mode dominant de logements en Chine, ils sont encore mal réglementées. Dans les années 1990, la croissance de la copropriété en raison de la privatisation des anciens logements publics, l'obtention d'un titre de propriété s'est réalisé sans cadre législatif et institutionnel approprié, ce qui conduit à de nombreuses difficultés.
Je mets en lien un livre (The Making of Chinese Condominium Law: A Comparative Perspective with American and South African Condominium Laws (Ius Commune Europaeum) publié en 2010 par Mr
Chapter VI
Condominium Right of Property Owners
Article 70 Property owners shall enjoy ownership of the special parts within a building, such as the residential units and the units for business purposes and shall enjoy the right to share and jointly manage the common parts other than the special parts.
Article 71 An owner shall enjoy the rights of possession, use, benefiting from and disposition of the part exclusively owned by him within a building. In exercising his rights, the owner shall not endanger the safety of the building or infringe on the lawful rights and interests of other owners therein.
Article 72 An owner shall enjoy rights and fulfill obligations with respect to the common parts of a building other than the special parts, and shall not refuse to fulfill the obligations by forfeiting his rights.
When an owner transfers a residential unit or a unit for business purposes owned by him within a building, his right to share and jointly manage the common parts shall be transferred along.
Article 73 The roads in the district of a building shall be jointly owned by all the owners, with the exception of the public roads belonging to a city or township. The greens within the district of a building shall be jointly owned by all the owners, with the exception of the public greens belonging to a city or township, and the greens belonging to individual persons, as is clearly indicated. Other public spaces, public facilities and houses or rooms used for property management within the district of a building shall be jointly owned by all the owners.
Article 74 In the district of a building, the designed parking places and garages shall first be used to meet the need of the owners.
In the district of a building, ownership of the designed parking places and garages shall be decided on through agreement among the parties concerned, by such means as selling, giving away as gifts, and leasing.
The roads and other places commonly owned by all the owners which are used for parking vehicles shall be jointly owned by all the owners.
Article 75 The owners may form an owners' assembly and elect an owners' committee.
The department concerned of the local people's government shall give guidance and assistance to the formation of an owners' assembly and the election of an owners' committee.
Article 76 The following matters shall be decided on by all the owners:
(1) formation and revision of the rules of procedure of the owners' assembly;
(2) formation and revision of the rules and agreement on managing the buildings and the attached facilities;
(3) election of the owners' committee or replacement of its members;
(4) employment or removal of the property management service or other managers;
(5) raising and use of funds for the maintenance of a building and its attached facilities;
(6) renovation and reconstruction of a building and its attached facilities; and
(7) other major matters relating to joint ownership and joint management rights.
For decision on the matters specified in Subparagraphs (5) and (6) of the preceding paragraph, an agreement shall be reached by the owners whose ownership of the exclusive parts within the building in question accounts for two-thirds or more of the total construction area of the building and who account for two-thirds or more of the total number of the owners. For decision on the rest of the matters specified in the preceding paragraph, an agreement shall be reached by the owners whose ownership of the exclusive parts in the building accounts for more than half of the total construction area of the building and who account for more than half of the total number of the owners.
Article 77 No owners may, in violation of the relevant laws, regulations or the management rules and agreements, turn a residential unit into a unit for business purposes. If an owner intends to do so, he shall, in addition to observing the relevant laws, regulations and the management rules and agreements, obtain the consent of the interested owners.
Article 78 The decisions of the owners' assembly or the owners' committee shall be binding to all the owners.
If a decision made by the owners' assembly or the owners' committee infringes on the lawful rights and interests of an owner, the said owner may apply to a people's court for voiding of the decision.
Article 79 The funds for maintenance of a building and its attached facilities shall belong to all the owners, which, upon their common decision, may be used for maintaining and repairing the common parts such as the elevators and water tanks. The raising and use of such funds shall be made public.
Article 80 The apportioning of the expenses for a building and its attached facilities and the distribution of benefits therefrom shall follow the agreement reached; if there is no such agreement or the agreement is unclear, such apportioning and distribution shall be determined on the basis of the ratio of the area of the exclusive parts an owner owns to the total construction area of the building.
Article 81 Owners may manage the building and its affixtures by themselves, or entrust the matter to a property management service or other managers.
The owners shall, according to law, have the right to replace the property management service or other managers employed by the developer.
Article 82 The property management service or other managers shall manage the building and its affixtures within the district of the building, as entrusted by the owners, and shall be subject to supervision by the owners.
Article 83 Owners shall observe the relevant laws and regulations and the management rules and agreements.
With respect to a person who randomly discards garbage, discharges pollutants, makes noises, keeps animals in violation of regulations, erects structures against rules, occupies passages, refuses to pay property management fees, etc., thus infringing on the lawful rights and interests of another person, the owners' assembly and the owners' committee shall, according to the relevant laws and regulations and the management rules and agreements, have the right to require the person to discontinue such infringement, eliminate the hazards, clear away the obstructions and compensate the losses entailed. The owner whose lawful rights and interests are infringed on may bring a lawsuit to the people's court against such acts.