Research on the Laws Related to the Issues of Residential Parking Spaces and Parking Garages
Abstract
In recent years, the issue of the ownership of residential parking spaces has caused increasingly lots of disputes. “Real Right Law” has given some provisions to determine the ownership of residential parking spaces, but there also exist some problems. The author has proposed some specific solutions after analyzing relevant provisions of “Real Right Law” on the issue of residential parking spaces.
Keywords
Parking Space, Parking Garage, Partitioned Ownership of the Building, Legal Parking Space
1. Introduction
As peoplersquo;s living standards improved, there are more and more private cars, so residents need more parking spaces. Although garage is growing, its ownership has been a blind spot of the condominium ownership system. Enacting and implementation of “Real Right Law” is significant and positive to solve the right of ownership of residential garage and parking spaces, but the system still needs further improvement. The author combines his own opinions with the relevant provisions of the “Real Right Law” to do the research on the laws related to the issues of residential parking spaces and parking garages
2. Types of Parking Spaces and Parking Garages
According to the land-use right types of the building land and the occupied space, the residential parking spaces and parking garages can be divided into three types at present: the first type is the ground parking space and parking garage. The ground parking space refers to an open parking facility with a “planning permit for building engineering” issued by the planning department of the government, directly arranged on the ground of commercial housing residential area, by means of marked segmentation without any structures, and used for many people at same time [1].The independent ground parking garage refers to the special-purpose parking space in
the residential district, built with walls and doors, and isolated from outside space. The second type is the first layer parking space and parking garage by making use of the first layer of the building set up with walls and columns, and affiliated to building.The third type is the underground parking space and parking garage by
making use of the underground space of residential district. The interior is provided with a lot of lines and numbers with no isolating walls.
3. The Issue on the Ownership of Parking Space and Parking Garage under Current Law
The Article 74 of “Real Right Law” has given a series of special provisions for the issue of the ownership of the parking spaces and garages. The first paragraph of Article 74 provides “the parking spaces and garages within the building area planned for parking cars shall be used to meet the needs of the owners above all else”. The second paragraph provides:“the ownership of the parking places and garages shall be agreed upon by the related parties in the manners of selling, complementary using or leasing, etc.” Through these two provisions, we possibly could draw such a conclusion: according to Article 74,the legislator gives the ownership of parking spaces and parking garages for parking car within the building to the developers who can sell, give or lent them to a specific person respectively through sale contract, donation contract or lease contract. But this understanding
seems only the literal interpretation of the provisions. In reality, the conflicts between the owners and developers on the legal issue of parking spaces and parking garages do not seem to be ceased. Then how to determine the ownership of parking spaces and parking garages?
First of all, the third paragraph of Article 74 of “Real Right Law” provides: “the parking places, which occupy the roads or other fields commonly owned by all owners, shall be in the common ownership of all the owners”.The ground parking space mentioned above refers to the parking facility with a “planning permit for building engineering”from the government, set by the commercial housing developer directly in the residential district. The ground parking lot is not building; it is a parking place on the ground, so it is impossible to obtain the initial registration of real estate property right and the real estate certificate.In fact, the ground parking lot is not independent; it is a way to use land. The rights to use the land occupied by the parking lot shall belong to all the owners. Therefore, the ground parking lot shall be in the common ownership of all the owners.
Secondly, the key to determining the ownership of the ground parking garage is to see whether developers apportion the land area occupied by the parking garages to all owners. If the developer has apportioned the land to all owners, it means the parking garage shall be in the common ownership of all the owners. And the developer couldnrsquo;t specify the ownership separately.This relates to the burden of proof. The developers and the owners on this issue have serious information asymmetry condition, it is very necessary to clear developersrsquo; burden of proof through legislation or legislative interpretation.
The most difficult problem is the ownership of the underground garage. We can analyze it from the following two aspects.
3.1. The Relationship between the Land-Use Right and the Ownership of the House
Article 31 of “Law on Management of Urban Real Estate” provides: “Where real estate is transferred or mortgaged,the ownership right of the premises on the land is transferred or mortgaged along with the land-use right.”Through the above legal provision, it can be seen that our country carries out the single transfer mode: “land transferred accompanies the building transferred”. I
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