Precedent No. 51/2021/AL

On determining ownership of the parking area of ​​an apartment building

Adopted by the Council of Judges of the Supreme People's Court on November 25, 2021 and promulgated under Decision No. 594/QD-CA dated December 31, 2021 of the Chief Justice of the Supreme People's Court.

Source of case law:

Judgment No. 82/2020/DS-PT dated March 6 + 23, 2020 of the People's Court of Hanoi City on the case " Request to declare the service contract invalid, request to recognize ownership of the basement " between the plaintiff, S Urban Development and Construction Investment Joint Stock Company, and the defendant, the Management Board of the mixed-use building H; the people with related rights and obligations include 03 people.

Location of case law:

Paragraph 22 of the “Court's Opinion” section.

Overview of case law:

- Case law:

The apartment's car parking area is built according to standards and is not included in the apartment's selling price in the apartment purchase contract.

- Legal solutions:

In this case, the Court must determine that the apartment building's car parking area belongs to the private ownership of the investor.

Legal provisions relating to precedents:

- Article 70 of the 2005 Housing Law (corresponding to Article 100 of the 2014 Housing Law);

- Point b, Clause 1 and Point c, Clause 2, Clause 3, Article 49 of Decree No. 71/2010/ND-CP dated June 23, 2010 of the Government detailing and guiding the implementation of the Housing Law;

- Circular No. 02/2016/TT-BXD dated February 15, 2016 of the Ministry of Construction on promulgating regulations on management and use of apartment buildings.

Keywords of case law:

“Apartment building”; “Basement for car parking”; “Private ownership of the investor”.

CASE CONTENT:

According to the petition and statements during the settlement of the case, the plaintiff and the plaintiff's authorized representative stated:

S Urban Development and Construction Investment Joint Stock Company (hereinafter referred to as Company S) was licensed by the competent authority to be the investor of the H Mixed-use Building project, located at km 10, A Street, B Ward, C District, Hanoi (now No. 131, A Street, B Ward, C District, Hanoi).

According to the project's legal documents approved by the competent State agency, the building consists of 34 floors (excluding the technical floor and roof floor) and 02 basements. Of which, the commercial service area and offices from the 1st to the 8th floor are directly operated or leased by Company S. The building was started from the end of 2008 and completed by the end of 2010; The area of ​​02 basements and the commercial service floors of the building are privately owned by the Company and are included in the investment real estate portfolio for depreciation according to regulations; The construction costs of the basement area and the commercial service area are calculated separately and not allocated to the selling price of the apartment area of ​​the building. Since November 2008, the Company has opened for sale apartments and at the end of 2010, the building was officially put into use.

After coming into operation, Company S hired a professional unit to manage and operate the building, then assigned the H Housing Project Management Board, a unit under Company S, to carry out the work. Since August 2016, the H Housing Project Management Board has been transformed into D Service Management and Business LLC to meet the requirements for building management and operation in accordance with the provisions of Circular No. 02/2016/TT-BXD on promulgating regulations on management and use of apartment buildings.

On September 26, 2016, Company S and the building owners held the first Apartment Building Conference to elect the Building Management Board and promulgate the operating regulations of the Building Management Board of the H mixed-use building. Accordingly, the members of the Building Management Board have 05 members, including 03 representatives of the residential block, 01 representative of the commercial and office block and 01 representative of the Investor. The Building Management Board is organized and operates according to the model of the Board of Directors of the Cooperative. The Building Management Board is recognized by the People's Committee of Ha Dong District under Decision No. 10974/QD - UBND dated November 15, 2016.

After the building management board was established, D Service Management and Trading Company Limited continued to be the unit to manage and operate the building. However, on August 24, 2017, the building management board represented by Mr. Do Thai S1 - Head of the Management Board signed the apartment building management and operation service contract No. 01/2017/HDDV with the new apartment building management and operation service provider, G Joint Stock Company, but did not comply with the provisions of law, which are:

- The building management board has not yet held a meeting and drawn up minutes to reach consensus of at least 75% of the members of the building management board on the proposal to change the management and operation unit as prescribed in Article 25 of Circular No. 02/2016/TT-BXD;

- The building management board has not yet organized a meeting of the apartment building conference to reach consensus from at least 50% of the building's owner representatives on agreeing to change the apartment building management and operation service provider as prescribed in Article 14 of Circular No. 02/2016/TT-BXD;

- The content of the operation management service contract signed between Mr. Do Thai S1 - Head of the Building Management Board and Joint Stock Company G on August 24, 2017 has a clause that infringes on the ownership rights of the Investor, specifically: The Building Management Board has arbitrarily decided on the property belonging to Company S without the Company's consent: at point n, clause 1, Article 3 of the Service Contract between the Management Board and Joint Stock Company G, the two parties have agreed on the parking service in the 2 basements of the building, which are privately owned by Company S.

In the Apartment Sale Contract as well as in all related documents, there is no provision stating or showing that the basement for parking cars and motorbikes and the floors from the 1st to the 8th floor are jointly owned by the building. However, the Building Management Board has arbitrarily hired Company G and Company Y to occupy and illegally collect parking fees at the 2 basements from September 2017 to present. The Building Management Board has hired people to build a wall to block the supermarket warehouse door on the 1st floor behind the building, thus obstructing the business activities and escape routes of Mediamart Thanh Xuan supermarket from October 2017 to present.

Company S requests the Court to recognize the parking area according to the completion records at basement 1 with an area of ​​2,330m2 ^, basement 2 with an area of ​​2,050m2 ^under the ownership of the Investor. Force the Building Management Board and Joint Stock Company G to return this area to Company S; Declare the apartment building management service contract No. 01/2017/HDDV signed on August 24, 2017 between the Building Management Board and Joint Stock Company G and the Service Supply Contract No. 02/2019/HDDV/BQT-YB signed on February 1, 2019 between the Building Management Board and Apartment Building Management and Operation Company Y invalid; Require the Building Management Board and Joint Stock Company G to restore the original state of the back door of the first floor of Mediamart Thanh Xuan supermarket and compensate for damages caused by illegal encroachment, affecting the business activities of Company S.

During the process of resolving the case and at the first instance trial, the plaintiff withdrew the request for compensation for damages due to illegal encroachment on the parking area in the 2 basements affecting the business activities of Company S, reserving the right to file a lawsuit for compensation for these damages in another case.

Defendant: Management Board of mixed-use building H

- Mr. Do Thai S1 presented:

The Management Board of the H Complex Building was legally established and recognized under Decision No. 10974 dated November 15, 2016 of the People's Committee of Ha Dong District. According to this decision, the members of the Management Board include: Mr. Do Thai S1, Mr. Tran Van T, Mr. Nguyen Vu G1, Mr. Trinh Xuan T1, Mr. Nguyen Khanh T2. Around March 2017, Ms. Bui Thi N replaced Mr. Nguyen Khanh T2. On August 27, 2018, Mr. Nguyen Van L replaced Ms. Bui Thi N. Currently, the Management Board consists of 5 members: Mr. Do Thai S1, Mr. Tran Van T, Mr. Nguyen Vu G1, Mr. Trinh Xuan T1 and Mr. Nguyen Van L. Initially, when the apartment building was put into operation without a Management Board, the management and operation of the building was performed by a professional company hired by Company S but it was illegal. On November 15, 2016, when the Building Management Board was established, it hired Company G to operate and manage this building. The service contract performed by Company G was not in accordance with the contract, so the Management Board terminated the contract with Company G on March 23, 2019. Immediately after that, the Management Board continued to sign a building management and operation service contract with Y Apartment Building Management and Operation Company Limited.

Regarding the Plaintiff's request to declare the Operation Management Contract invalid, the Defendant disagrees because the Plaintiff does not have the authority to request to resolve this matter, the reason being that the building was only put into use at the end of 2010. According to Circular No. 02 of the Ministry of Construction, after 1 year of use, the investor is responsible for electing a Building Management Board. However, after the above deadline, the investor did not establish a Management Board according to the law. The Building Management Board was only established after 6 years, specifically on September 26, 2016. On August 24, 2017, the Management Board signed a service contract with Company G. During the contract implementation process, Company G fully and correctly implemented the provisions of the law, without any violations. On the other hand, up to this point, the Management Board has also terminated the contract with Company G. Furthermore, the investor's area is no longer in this Building, so it has no right to request the cancellation of the service contract with Company G.

Regarding the request to determine the parking area in the basement belonging to the investor. Based on the content of the contract, there is no provision stipulating that this basement is under the management and use of the investor, so the area of ​​these 2 basements is a common area. According to the financial report from 2010 to 2016 of the Company, there is no mention of the parking area of ​​the 2 basements. From 2016 to present, the Company has added this area to the report. The investor is requested to present a financial plan approved by the Department of Finance, including: the building construction documents approved by the Department of Construction and the completion documents approved by the state audit and the document of the Department of Finance. If these 3 units determine that the investor has invested capital to build 2 basements, according to the Housing Law 2015, the parking area of ​​the building is a parking area for residents, so it must be determined that it is a common property. Therefore, the parking area in these two basements will not be returned to the investor, but the value will be calculated to be paid to the investor.

Regarding the request to restore the original state of the back warehouse door of the first floor supermarket and request the Management Board to compensate for damages caused by the act of encroachment and illegal appropriation of the Company's property according to the provisions of law, the Management Board is not involved and did not perform these tasks, so it is not responsible for compensation or restoration of the original state.

- Mr. Trinh Xuan T1 and Mr. Tran Van T, members of the Board of Directors, presented:

Mr. T1 and Mr. T have the same opinion as Company S. Request the Court to declare the Apartment Building Management Service Contract No. 01/2017/HDDV signed on August 24, 2017 between the Building Management Board and Joint Stock Company G and the Service Provision Contract No. 02/2019/HDDV/BQT-YB signed on February 1, 2019 between Y Apartment Building Management and Operation Company Limited and the Building Management Board invalid; Recognize the parking area in basement 1 with an area of ​​2,330m2 ^, basement 2 with an area of ​​2,050m2 ^under the ownership of the Investor; Force the Building Management Board and Joint Stock Company G to return this area to Company S; Require the Building Management Board and G Joint Stock Company to restore the original state of the back door of the first floor supermarket and compensate for damages caused by illegal encroachment affecting the Company's business operations.

Persons with related rights and obligations:

1. G Joint Stock Company (hereinafter referred to as G Company) presents:

Company G is registered to do business in the field of apartment building management and operation. On August 24, 2017, the Company signed a Service Contract with the Management Board of the H Complex Building, represented by Mr. Do Thai S1, to provide operation services for the apartment building at 131 A Street, Ward B, District C. According to the agreement in the contract, it is effective from September 1, 2017 to December 30, 2019. The work under the contract is to provide security, cleaning, technical and other services... The contract is agreed to collect revenue and expenditure based on the unit price principle prescribed by the Management Board. The number of vehicles and m2 of ^service fees are provided by the Management Board. Company G collects money based on data provided by the Management Board and the Management Board regulates the fees for all types of services.

After signing the contract, Company G paid all initial investment costs such as: paying the electricity bill to Ha Dong Electricity in August; technical equipment for operation, smart parking lot... Up to now, the Company has not recovered all investment capital, still supporting this building project with about more than 100,000,000 VND. On January 15, 2019, the Company learned that the Management Board had signed a building operation service contract with another Company. The Management Board arbitrarily put another Company into operation of the building, unilaterally terminated the contract with Company G without discussion, and up to now, there has been no document on contract liquidation. In fact, since January 20, 2019, Company G has not operated management at this building.

Regarding the plaintiff's request to initiate a lawsuit: The Company is currently no longer managing and operating this building, is no longer involved, so has no opinion. The Company will request that any issues arising between Company G and the Building Management Board be resolved in another case.

2. Y Apartment Management and Operation Company Limited (hereinafter referred to as Y Company) presents:

Currently, Company Y is signing and implementing a Service Contract for Mixed-Use Building H from March 1, 2019. The Company has signed a contract with the Management Board, not with Company D. The Company has signed and implemented the contract in accordance with the provisions of law. When the Company comes to manage and operate the building, it does not have to invest in technical equipment such as card swiping machines.... Regarding the plaintiff's lawsuit request, Company Y requests to resolve it in accordance with the provisions of law.

3. M Vietnam Joint Stock Company (abbreviated as M Company) presents:

In September 2010, Company M signed a lease contract with Company S at Building H, address 131 A Street, Ward B, District C. Initially, the two parties signed a lease contract for the basement and floors from the 1st to the 5th floor of the building. By around 2014, Company M only rented floors 1, 2, and 3 of the building for business and office purposes. There were no problems during the contract implementation process. In 2017, after the building's Management Board was established, the Management Board continuously caused difficulties and damages to Company M's business. Now, Company S filed a lawsuit. Company M agreed with Company S's request to file a lawsuit, requesting the Management Board to stop obstructing Company M's business activities and demolish the surrounding wall behind the 1st floor.

In the first instance civil judgment No. 40/2019/DSST dated October 31, 2019 of the People's Court of Ha Dong District, Hanoi, it was adjudicated:

1. Partially accept the lawsuit request of S Urban Development and Construction Investment Joint Stock Company.

- Determine and recognize the car parking area in basement 1 as 942.5m2 ^and the car parking area in basement 2 as 1,882.5m2 ^owned by S. Urban Development and Construction Investment Joint Stock Company.

- Declare that the Building Management Service Contract No. 01 dated August 24, 2017 between Mr. Do Thai S1 - Head of the Building Management Board and G Joint Stock Company and the Service Supply Contract No. 02/2019/HDDV/BQT-YB dated February 1, 2019 between Y Apartment Management and Operation Company Limited and Head of the Management Board of Mixed-Use Building H are invalid.

- S Urban Development and Construction Investment Joint Stock Company has the right to dismantle and restore the original state of the back door on the first floor of the H Mixed-Use Building according to the design documents approved by the competent state agency.

2. Suspend the request to force Company G and Mr. Do Thai S1 to compensate for damages of S Urban Development and Construction Investment Joint Stock Company.

In addition, the judgment also declares the court fees, the right to appeal and the obligation to execute the judgment of the parties.

Disagreeing with the decision of the first instance judgment, on December 2, 2019, Mr. Do Thai S1 appealed as a representative of the defendant - the Management Board of the mixed-use building H and argued that the Court of First Instance was not objective in its judgment, did not comply with the provisions of the law, and cited provisions not included in the legal documents issued by competent State agencies, seriously infringing upon the legitimate rights and interests of the building's residents. Proposal:

- Cancel the entire first instance judgment;

- Determine and recognize the entire area of ​​the two basement parking floors as belonging to the common ownership of the mixed-use building H.

- Clarify ownership of 03 commercial floors of mixed-use building H, including the wall behind the 1st floor that the investor is leasing to another unit for business.

- Request the plaintiff to settle and hand over maintenance costs, hand over building documents, complete and hand over fire prevention and fighting systems, hand over and count building equipment, hand over common and private areas to the Management Board representing residents in accordance with the provisions of law.

At the appeal hearing, the plaintiff maintained the original claim and agreed with the first instance judgment.

The defendant maintains the appeal request, disagrees with the first instance judgment and requests that the plaintiff's lawsuit be dismissed.

The lawyer protecting the plaintiff's legal rights and interests, after presenting his viewpoint on protecting the plaintiff's legal rights and interests, requested the appellate court to reject all of the defendant's appeal requests; uphold the decision of the first instance judgment, accept the plaintiff's lawsuit request to claim legal ownership of the parking area in the two basements and cancel two apartment building management and operation service contracts signed between the Management Board and Joint Stock Company G and Apartment Building Management and Operation Company Y, at building 131, Street A, Ward B, District C, Hanoi.

Representative of Hanoi People's Procuracy expressed his opinion:

Regarding proceedings: Those conducting proceedings and those participating in proceedings must comply with the provisions of the Civil Procedure Code;

Regarding the content: After analyzing the content of the case and reviewing the defendant's appeal, the representative of the Hanoi People's Procuracy stated:

Basis for determining ownership of part of the area in two basements of building 131, street A, ward B, district C, Hanoi:

- At the time of buying and selling apartments from the end of 2008 - 2010, there were no regulations on common and separate ownership rights, so the apartment sale and purchase contract with residents did not clearly state the common and separate areas. Pursuant to Official Dispatch No. 279/BXD dated October 18, 2017 of the Ministry of Construction guiding Company S; Pursuant to Decision No. 12 dated April 25, 2008 of the Board of Directors of Company S on approving the investment project to build the mixed-use building H; Pursuant to Official Dispatch No. 2.0005/18/CV-AC dated November 6, 2017 and Official Dispatch No. 2.0014/18/CV-AC dated January 18, 2018 of E Auditing and Consulting Company Limited, confirming: "Revenue and expenses from the business of 2 basements have been accounted for and declared for value added tax and corporate income tax annually. The construction cost of mixed-use building H allocated to 2 basements is 30,229,191,000 VND, recorded as an increase in the Company's fixed assets, not allocated to the cost of the apartment building" . There is sufficient basis to determine the parking area in the two basements 1 and 2 of mixed-use building H under the management of Company S.

However, according to the provisions of Point c, Clause 2, Clause 3, Article 49 of Decree 71/2010/ND-CP on the common ownership of apartment buildings, the parking area (bicycles, bicycles for the disabled, two-wheeled motor vehicles) is determined to be the common ownership of the apartment building. As for the car parking area, because it is not allocated to the apartment selling price, it is reasonable to say that it is the private ownership of the investor.

- Regarding the Apartment Building Management Service Contract No. 01/2017/HDDV signed on August 24, 2017 between the Building Management Board and G Joint Stock Company and the Service Provision Contract No. 02/2019/HDDV/BQT-YB signed on February 1, 2019 between Y Apartment Building Management and Operation Company Limited and the Building Management Board. According to the provisions of Article 14, Article 25, Clause 2, Point a of Circular 02/2016/TT-BXD dated February 15, 2016 of the Ministry of Construction and the Regulations on the operation of the Management Board, the Management Board is allowed to sign a contract for apartment building management and operation services with a company with the function of managing and operating apartment buildings but must comply with the prescribed legal procedures. However, when signing the service contract with the above two companies, the Management Board did not comply with the prescribed procedures and order, arbitrarily changed the management and operation company but did not organize the Apartment Building Conference, did not have at least 50% of representatives of the owners of the apartments who had received the handover attending the conference agree; did not organize a meeting of the Management Board members, did not have at least 75% of the members of the Management Board of the apartment building; the content infringed on the rights of the investor (managing both basements). Therefore, the Court of First Instance accepted the Plaintiff's request to declare the two above-mentioned management and operation service contracts invalid.

- Regarding the determination of ownership of 3 commercial basements of mixed-use building H, including a wall built behind the 1st floor. Pursuant to Decision No. 461 dated March 4, 2008 of the People's Committee of Ha Tay province on approving the investment project to build mixed-use building H; Official Dispatch No. 6606 dated December 6, 2010 of the People's Committee of Hanoi on changing the function of floors 6, 7, 8 from apartment function to office function; Official Dispatch 7494 dated November 5, 2014 of the People's Committee of Hanoi on changing floors 4, 5 from commercial function to office function, the content shows: Mixed-use building H project has 34 floors above ground, 02 basements, in which floors 1 to 8 are service, commercial and office areas. In compliance with regulations, the Company has sold and leased the area in the building according to its intended use. Therefore, there is a basis to determine that the 3 commercial floors of the mixed-use building H belong to the investor. The first-instance judgment has decided that the S Urban Development and Construction Investment Joint Stock Company has the right to dismantle and restore the original state of the rear door on the 1st floor of the mixed-use building H according to the design documents approved by the competent state agency.

- Regarding the defendant's request for the plaintiff to settle and hand over maintenance costs, hand over building records, complete and hand over the fire prevention and fighting system, hand over and count building equipment, hand over common and private areas to the Management Board representing residents. However, during the settlement of the case at the first instance stage, the defendant did not have a counterclaim, so there was no basis for requesting the appellate court to consider.

From the above analysis, it can be seen that the defendant's appeal is not acceptable.

However, the first instance judgment did not clearly identify the location of the car parking space and the motorbike parking space, leading to difficulties in the enforcement of the judgment. We request that the appellate panel, based on Clause 2, Article 308 of the Civil Procedure Code, amend the first instance judgment and add the determination of the location of the car parking space and the motorbike parking space as the basis for enforcement of the judgment.

JUDGMENT OF THE COURT:

[1] After studying the documents in the case file, examined at the trial and based on the results of public debate at the trial, the Trial Panel determined:

[2] Regarding litigation:

[3] The defendant filed an appeal within the statutory time limit and paid the advance appeal fee, so it is considered valid.

[4] Regarding the absence of persons with related rights and obligations who have not filed an appeal, although they have been duly summoned by the Court but are absent from the trial without reason. Pursuant to Article 296 of the Civil Procedure Code, the Court shall conduct the trial in accordance with the provisions of law.

[5] Regarding the content: Considering the defendant's appeal request

[6] Basis for determining ownership of parking area in two basements:

[7] S Urban Development and Construction Investment Joint Stock Company was licensed by the competent State agency as the investor of the H Mixed-use Building project, located at 131 A Street, Ward B, District C, Hanoi. This project has 34 floors (not including the technical floor and roof floor) and 2 basements, of which floors 1 to 8 are service, commercial and office areas. The company has sold and leased the area in the building according to its intended use. On September 26, 2016, at the first Apartment Building Conference, the Regulations were issued and the Management Board of H Mixed-use Building was established, consisting of 03 representatives for the residents, 01 representative for the investor and 01 representative for the commercial and office areas. The building management board is organized and operates according to the model of the Board of Directors of the Cooperative and is recognized by the People's Committee of District D under Decision No. 10974/QD - UBND dated November 15, 2016 (subsequently amended twice). According to the operating regulations of the management board, there must be a building management and operation company. D Service Management and Business LLC, which is currently the management and operation company, continues to be the unit implementing the management and operation of the building. On August 24, 2017, the building management board signed the apartment management and operation service contract No. 01/2017/HDDV with the new apartment management and operation service provider, Joint Stock Company G. In February 2019, the management board signed another apartment management and operation service contract with Company Y.

[8] Plaintiff - Company S claims that the Management Board has violated the ownership rights of Company S by occupying the parking area in the two basements and building a warehouse door behind the supermarket on the first floor. The Management Board's signing of the apartment building management and operation contract did not comply with the provisions of Article 14 and Article 25 of Circular No. 02/2016/TT-BXD: There was no consensus of at least 75% (4/5) members of the building's Management Board on the proposal to change the management and operation unit; there was no consensus of at least 50% of representatives of the building's owners; The content of the management and operation service contract violated the ownership rights of the investor (self-determination of the parking area in the two basements).

[9] Considering that the time the Company was approved for the investment project to build the H Complex Building as well as the time the Company implemented the project and signed the Apartment Sale and Purchase Contract with customers was from the end of 2008 - 2010. Pursuant to the 2005 Housing Law and Decree 71/2010/ND-CP dated June 23, 2010 detailing and guiding the implementation of the Housing Law, at Point b, Clause 1, Article 49 stipulates: " The area owned by the investor (the investor retains, does not sell and does not allocate the value of this privately owned area to the apartment selling price for the apartment owners)" ;

[10] Point c, Clause 2, Clause 3, Article 49 of Decree No. 71/2010/ND-CP stipulates the common ownership of apartment buildings as follows:

[11] “Parking areas (bicycles, vehicles for the disabled, two-wheeled motor vehicles) are built according to construction standards and can be arranged in the basement or on the first floor or in other areas inside or outside the apartment building.

[12] For car parking areas, they must be built according to construction standards, but the investor decides whether they belong to the common ownership of the apartment owners or to the private ownership of the apartment owners....

[13] The private ownership and common ownership of the apartment building as prescribed in this article must be clearly stated in the apartment sale and purchase contract.”

[14] Point c, Clause 8, Article 4, Decision No. 01/2013/QD-UBND dated January 4, 2013, deciding on the promulgation of regulations on management and use of apartment buildings in Hanoi city. In the explanation of terms (Implementing Article 70 of the Housing Law, Article 49 of Decree No. 71/2010/ND-CP, Article 4 of Decision No. 08/2008/QD-BXD) (According to Decision No. 01 of the Hanoi People's Committee explaining the terms of this Decree: For the car parking area in the basement decided by the investor, it belongs to the common ownership of the apartment owners or to the private ownership of the apartment owners; In case the car parking area in the basement is allocated to the apartment selling price for the apartment owners, it belongs to the common ownership, in case it has not been allocated to the apartment selling price, it belongs to the private ownership of the investor".)

[15] In Official Dispatch No. 279 dated October 18, 2017 of the Ministry of Construction sent to S Urban Development and Construction Investment Joint Stock Company (BL370), it is quoted: “...according to the attached documents, in the apartment sale and purchase contract signed between the Company and the customer, there is no agreement on common ownership and private ownership. Therefore, the investor needs to have documents to prove that the construction investment costs for the basement area and commercial service area have not been allocated to the apartment selling price. In case the documents prove that the investor has not included the construction investment costs for the above area in the apartment selling price for the buyer, this area belongs to the investor's private ownership, and the investor must ensure the proper use and design of these areas according to the project documents approved by the competent authority as well as relevant regulations in the sale and purchase contract with the customer.

[16] Determining whether the investor has allocated or not allocated the construction investment costs for the basement area and commercial service area into the apartment selling price is based on the project content approved by the competent authority and the audited financial report.

[17] In Official Dispatch No. 2.0018/19/CV/KTTV dated October 23, 2019 of E Auditing and Consulting Company Limited Branch in Hanoi sent to Ha Dong District People's Court stated:

[18] “1. The construction cost of the mixed-use building H allocated to 2 basements is VND 30,229,191,000, recorded as an increase in fixed assets of S Urban Development and Construction Investment Joint Stock Company, not allocated to the cost of the apartment.

[19] 2. The Company's annual audited financial statements show the taxes the Company must pay to the state, including: VAT, corporate income tax, personal income tax, business license tax, land rent... including:

[20] - VAT and corporate income tax related to the business of parking services at two basements declared and paid by S Urban Development and Construction Investment Joint Stock Company are shown in the annual financial statements from 2017 and earlier. The Company's financial statements for 2018 and the first 6 months of 2019 no longer reflect this business activity.

[21] - Land tax for the construction area of ​​mixed-use building H, Urban Development and Construction Investment Joint Stock Company S paid according to the notice of the Tax Department of Ha Dong district is 23,850,000 VND/year."

[22] Based on the regulations and written responses of the Ministry of Construction and the Branch of the E Auditing and Consulting Company mentioned above, it is determined that the area under the common ownership of the apartment building owners is the parking area (bicycles, bicycles for the disabled, two-wheeled motor vehicles) . As for the car parking area in the basement, the investor decides whether it is under the common ownership or the private ownership of the apartment building owners. According to the Apartment Sale and Purchase Contract, the car parking area in the basement is not allocated to the apartment sale price, so it is determined to be the private ownership of the investor. Therefore, the Court of First Instance partially accepted the lawsuit request of Company S regarding the recognition of the ownership of the car parking area in basement 1 and basement 2 of the mixed-use building H located at 131 A Street, Ward B, District C, Hanoi under the private ownership of the investor, which is reasonable.

[23] According to the construction drawing design documents approved by the Company in Decision No. 32 QD/CT-KT dated March 27, 2009; As per the completion drawing dated December 31, 2010 and the plaintiff's presentation, the parking area of ​​basement 1 is 2,330m2 ^, including 26 parking spaces for cars and 555 parking spaces for motorbikes. However, due to the fact that the location of the generator in basement 2 was not guaranteed during the design and construction, Company S moved the generator from basement 2 to basement 1. The detailed drawing shows that the generator is located in a parking space for 16 motorbikes, located within the range from axis A to axis B on the outermost side of axis 1, extending from axis 1, with an area of ​​about 42m2 ⁽ adjacent to the ventilation technical area), and the parking space for 16 motorbikes is located in two parking spaces for cars (lots 12 and 13) located within the range from axis C to axis D, from axis 5 to axis 6. Thus, the actual parking space for cars in basement 1 can only accommodate 24 cars;

[24] The parking area of ​​basement 2 is 2,050m2 ^, including 68 parking spaces for cars and 67 parking spaces for motorbikes;

[25] In order to have a basis to determine the location of car parking and motorbike parking, after the debate at the appeal hearing on March 6, 2020, the Hanoi People's Court temporarily suspended the hearing to conduct a review, appraisal, and determine the location of the parking lot as a basis for resolving the case. However, on March 19, 2020, when the Hanoi People's Court arrived at the basement of the building to conduct a review and appraisal according to the Decision to temporarily suspend the hearing on March 6, 2020, the defendant summoned many people who were not parties in the case to attend the review and appraisal session. These people obstructed and did not allow the Court to carry out the review and appraisal, so the review and appraisal could not be carried out, the fault lies with the defendant.

[26] Therefore, in order to have a basis to determine the location of the car and motorbike parking spaces, after listening to the parties' presentations at the trial; reviewing the plaintiff's explanatory documents with detailed drawings, the Trial Panel found it consistent with the construction design drawings and completion drawings provided by the plaintiff at the first instance stage, on that basis determining the location and area of ​​the car and motorbike parking spaces in the two basements of this building as the basis for resolving the case.

[27] Pursuant to Decision No. 26/2004 dated November 2, 2004 of the Minister of Construction on promulgating TCXDVN 323:2004 " High-rise buildings - design standards "

[28] - Standard car parking area is 25m2 ^/ car;

[29] - Parking space for motorbikes and scooters: 2 motorbikes/household with standard area from 2.5m ² /bike to 3.0m ² /bike and 1 bicycle/household with standard area 0.9m ² /bike.

[30] Mixed-use building H has 228 apartments x 2 motorbikes/household = 456 motorbikes x 2.5m ² / motorbike = 1,140m ² and 01 bicycle/01 household = 228 motorbikes x 0.9m ² = 205.2m ² . The total area arranged for parking motorbikes and bicycles is 1,345.2m ² . According to the design drawing and completion documents, the parking area in basement 1 is 555 motorbikes; basement 2 is 67 motorbikes, a total of 622 motorbikes x 2.5m ² / motorbike = 1,555m ² (more than the parking area for 228 apartments).

[31] However, the Court of First Instance only took the total parking area of ​​the two basements minus the motorbike parking area. The remaining area was determined to be the investor's car parking area, which was inaccurate and inconsistent with the design drawings and completion records, making it difficult to enforce the judgment. Therefore, the Court of Appeal revised this part to be consistent with the actual area and location of the parties' car and motorbike parking spaces.

[32] Regarding the request to declare the two Apartment Building Management Service Contracts No. 01/2017/HDDV signed on August 24, 2017 between the Building Management Board and Joint Stock Company G and the Service Provision Contract No. 02/2019/HDDV/BQT-YB signed on February 1, 2019 between Apartment Building Management Company Y and the Building Management Board invalid, it is found that:

[33] The Management Board of the H Complex Building was elected by the Apartment Building Conference and recognized by the People's Committee of Ha Dong District according to Decision No. 10974 dated November 15, 2016 (first change on April 3, 2018 and second change on August 27, 2018). According to the provisions of law, the Management Board is allowed to sign a contract for apartment building management and operation services with a Company with the function of managing and operating apartment buildings but must comply with the prescribed legal procedures. However, when signing the service contract with the two above-mentioned management and operation companies, the Management Board did not comply with the procedures prescribed in Circular No. 02/2016/TT-BXD dated February 15, 2016 of the Ministry of Construction and the Regulations on the operation of the Management Board, arbitrarily changing the management and operation company; not holding a condominium conference, not having at least 50% of representatives of apartment owners who have received the handover attending the conference agree; not holding a meeting of the members of the Management Board, not having at least 75% of the members of the Management Board of the condominium; The defendant presented that it had terminated the contract with Company G, but Company G presented that in fact it had terminated the management and operation of the building since February 2019 until now, but the two parties have not yet had a contract termination document. The Management Board's continued signing of a service provision contract with Apartment Management and Operation Company Y when it had not yet terminated the contract with Joint Stock Company G is not in accordance with the provisions of law. The two management and operation service contracts mentioned above still exist in reality. The content of the contract infringes on the rights of the investor (managing both basements). Therefore, the Court of First Instance accepted the plaintiff's request to declare the two management and operation service contracts mentioned above invalid.

[34] However, because the parties did not request to resolve the consequences of the invalid contract in this case, the Court of First Instance did not consider it in accordance with the provisions of law. In case of failure to reach an agreement, the parties have the right to initiate another civil lawsuit upon request.

[35] Regarding the determination of ownership of 3 commercial floors of the mixed-use building H, including the wall built behind the 1st floor. Pursuant to Decision No. 461/QD-UBND dated March 4, 2008 of the People's Committee of T province on approving the investment project to build the mixed-use building H; Official Dispatch No. 9906/UBND-XD dated December 6, 2010 of the People's Committee of Hanoi on converting the functions of floors 6, 7, 8 from apartment function to office function; Official Dispatch No. 7495/VP-QHKT dated November 5, 2014 of the People's Committee of Hanoi on converting the functions of floors 4 and 5 from commercial function to office function. This is the basis for determining that 3 commercial floors in the mixed-use building H belong to the investor. The investor has sold and leased according to the correct usage function. On that basis, in addition to determining ownership, the Court of First Instance decided that S Urban Development and Construction Investment Joint Stock Company has the right to dismantle and restore the original state of the rear door on the first floor of the mixed-use building H in accordance with the design documents approved by the competent state agency.

[36] Regarding the defendant's request that the investor must settle and hand over maintenance costs, hand over building records, complete and hand over fire prevention and fighting systems, hand over and count building equipment, hand over common and private areas to the Management Board representing residents... Considering that, during the process of resolving the case at the Court of First Instance, the defendant did not have a counterclaim, the person with related rights and obligations did not have an independent request, so the Court of First Instance did not consider and resolve it in accordance with the provisions of law, the Court of Appeal had no basis to accept the defendant's appeal on this content.

[37] Regarding the plaintiff's partial withdrawal of the lawsuit request, requesting Mr. Do Thai S1 and Company G to compensate for damages caused by illegal infringement affecting the business activities of Company S. The partial withdrawal of this request is completely voluntary, the Court of First Instance's suspension is in accordance with the law.

[38] However, in the section citing the provisions of the law, there are some contents cited by the Court of First Instance that are incomplete and inaccurate. The defendant's appeal against this content is well-founded, and the Court of Appeal needs to revise it to comply with the provisions of the law. The defendant's other appeal contents are unfounded, so the Court of Appeal has no basis to accept them.

[39] The statement of the Lawyer protecting the legitimate rights and interests of the Plaintiff and the proposed viewpoint of the representative of the Hanoi People's Procuracy are well-founded and should be accepted.

[40] Regarding court fees: The Management Board of the H Complex Building must pay court fees according to the provisions of law. S Urban Development and Construction Investment Joint Stock Company had part of its lawsuit accepted, so it must pay the first instance civil court fees for the part of the lawsuit that was not accepted;

For the above reasons,

DECISION

Pursuant to Clause 2, Article 308 of the Civil Procedure Code.

Pursuant to Articles 163, 164 and 169 of the 2015 Civil Code;

Pursuant to the Housing Law 2005;

Pursuant to Decree 71/2010/ND-CP dated June 23, 2010 of the Government;

Pursuant to Resolution No. 326/2016/UBTVQH14 dated December 30, 2016 of the Standing Committee of the National Assembly regulating the collection, exemption, reduction, collection, payment, management and use of court fees and charges.

Amending the First Instance Civil Judgment No. 40/2019/DSST dated October 31, 2019 of the People's Court of Ha Dong District, Hanoi City.

Verdict:

1. Partially accept the lawsuit request of S Urban Development and Construction Investment Joint Stock Company against the Management Board of H Mixed-Use Building regarding the recognition of the car parking area in basement 1 and basement 2 of H Mixed-Use Building located at 131 Street A, Ward B, District C, Hanoi City, owned by S Urban Development and Construction Investment Joint Stock Company.

- Determine and recognize the car parking area in basement 1 as 600m2 ^; the car parking area in basement 2 is 1,700m2 ^owned by S. Urban Development and Construction Investment Joint Stock Company.

Based on the detailed drawings (attached with the judgment) , determine the specific locations of car and motorbike parking spaces as follows:

* Basement 1 parking area is ^2,330m2 :

- Of which 600m2 ⁽ including traffic road) is divided into 24 parking spaces. The location of the parking space is determined from the length of axis E to axis F, from axis E to axis C, from axis 1 to axis 6 extended (numbered from 1 to 11 and from 14 to 26 in the detailed drawing, excluding the elevator core area).

- The motorbike parking area is 1,387.5m2 ⁽ including the traffic road) divided into 555 motorbike parking spaces. The motorbike parking location is determined from ½ the length of axis F to axis E, from axis F to extended axis G; from axis D to extended axis A and from axis 1 to extended axis 6 (excluding the area of ​​functional areas).

- The location for the generator is 42m2 ^, from axis A to axis B, the outermost side extends from axis 1.

The remaining area of ​​basement 1 is determined as: 2,330m2 ^- 600m2 ^- 1,387.5m2 ^- 42m2 ⁼ 300.5m2 ^, this is the investor's air space to create ventilation in basement 1.

* Basement 2 parking area is ^2,050m2 :

- Of which 1,700m2 ^is the car parking area (including the traffic road) divided into 68 car parking spaces. The car parking location is determined from ¾ of the length of axis F to axis G, from axis F to axis A extended and within the range from axis 1 to axis 6 extended (excluding the elevator core area and the area of ​​functional areas).

- The area for motorbike parking is 167.5m2 ⁽ including the traffic road) divided into 67 motorbike parking spaces. The motorbike parking location is determined from ¼ of the length of axis G extended to axis F plus axis G extended, within the range from axis 2 to axis 5 and within the range from ¼ of the length of axis 1 to axis 2 and axis G to axis D (excluding the area of ​​functional areas).

- The remaining area of ​​basement 2 is determined: 2,050m2 ^- 1,700m2 ^- 167.5m2 ⁼ 182.5m2 ^, this is the investor's air space to create ventilation in basement 2.

2. Declaration of the Building Management Service Contract No. 01/2017/HDDV signed on August 24, 2017 between Mr. Do Thai S1 - Head of the Building Management Board and G Joint Stock Company and the Service Provision Contract No. 02/2019/HDDV/BQT-YB dated February 1, 2019 between Y Apartment Management and Operation Company Limited and Head of the Management Board of Mixed-Use Building H are invalid.

In case the parties cannot reach an agreement on resolving the consequences of an invalid contract, they have the right to file a lawsuit in another civil case according to the provisions of law.

3. S Urban Development and Construction Investment Joint Stock Company has the right to dismantle and restore the original state of the rear door on the first floor of the H Mixed-Use Building according to the design documents approved by the competent state agency.
4. Partially suspend the request of S Urban Development and Construction Investment Joint Stock Company regarding the request to force Company G and Mr. Do Thai S1 to compensate for damages.
5. Regarding court fees: The Management Board of the H Complex Building must pay 300,000 VND in first-instance civil court fees and is not required to pay civil appeal court fees. The amount of 300,000 VND in advance for civil appeal court fees paid according to Receipt No. 0008476 dated December 5, 2019 at the Civil Judgment Enforcement Office of Ha Dong District, Hanoi City will be deducted from the amount of first-instance civil court fees payable. Confirm that the defendant has paid the court fees.

S Urban Development and Construction Investment Joint Stock Company must pay VND 300,000 in civil court fees at first instance for a part of the lawsuit that was not accepted. The amount of VND 300,000 in advance for civil court fees at first instance paid according to Receipt No. 0001681 dated July 30, 2018 at the Civil Judgment Enforcement Office of Ha Dong District, Hanoi City will be deducted from the amount of civil court fees at first instance to be paid. Confirm that the plaintiff has paid the court fees.

6. In case the judgment is enforced according to the provisions of Article 2 of the Law on Civil Judgment Enforcement, the person entitled to enforcement and the person subject to enforcement have the right to agree on the enforcement, the right to request enforcement, voluntarily enforce the judgment or be forced to enforce the judgment according to the provisions of Articles 6, 7, 7a, 9 of the Law on Civil Judgment Enforcement; the statute of limitations for enforcement is implemented according to the provisions of Article 30 of the Law on Civil Judgment Enforcement.

The appeal judgment is public and effective from the date of judgment./.

CONTENT OF PRECEDENT

“[22] Based on the regulations and written responses of the Ministry of Construction and the Branch of the Auditing and Consulting Company E mentioned above, it is determined that the area under the common ownership of the apartment building owners is the parking area (bicycles, bicycles for the disabled, two-wheeled motor vehicles). As for the car parking area in the basement, the investor decides whether it is under the common ownership or the private ownership of the apartment building owners. According to the Apartment Sale and Purchase Contract, the car parking area in the basement is not allocated to the apartment sale price, so it is determined to be the private ownership of the investor. Therefore, the Court of First Instance partially accepts the lawsuit request of Company S regarding the recognition of the ownership of the car parking area in basement 1 and basement 2 of the mixed-use building H located at 131 Street A, Ward B, District C, Hanoi under the private ownership of the investor, which is reasonable.”.

 

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