公寓大厦之停车场车位问题

The Legal Status of Units of the Parking Lots of Apartment Buildings

无论是从学理上还是从法规政策上的考量,笔者都认为应当摒弃传统观念,对建筑物构造和利用上的独立性进行符合经济效用的宽泛解释。对停车场的法律地位应作类型化的区别:(1)如果开发商已经将建设停车场的费用计入商品房销售价格,开发商应当在商品房销售合同中明示,以明确区分所有权人对此停车场的共同共有权。(2)如果开发费用没有摊销,自行车库、无人看管的露天汽车停车场以及一定的地下或室内汽车停车场应该属于区分所有权人共用共有部分。(3)在有共有部分性质的停车场上,可以设立共有部分专用权。(4)除此以外的地下或者室内停车场,由于其由构造和功能上的独立性,可以作为区分所有权的客体,由开发商在楼盘出售之时享有并处分。

According to The traditional theory, the unit of parking lot of apartment buildings, in absence of the independence in terms of structure and usage, is not an independent object suitable for conveyance. Thus, the parking lot is deemed as the affiliated utility facility of the apartment building and to be used by the apartment owners as a whole. The land agent of the buildings is not allowed to sell the units and the ″buyers″ do not have the title but the right to use. This article proposes that it is advisable to introduce more lenient interpretation in regard of the independence of structure and usage in light of economic efficiency and recognize the independent status of parking lots under certain circumstances to grant the buyers the full title thereof. The proposal does not intend to advocate the interests of the unit buyers at the expense of the interest of apartment owners. Rather, it attempts to strike a balance between the interests of apartment owners and that of buyers of unit, thus encourage the developers to build more units to satisfy the needs of both. it is also consistent with the developing trend about the ownership of apartment buildings as well as the current regulations promulgated by the Ministry of Construction of PRC. In conclusion, the status of the parking lots of apartment buildings might be summarized as follows: (1) if the constructors as well as the sellers have apportioned the construction costs of parking lot into the sales price of apartment, it should be explicitly included in the sales contract to recognize the joint ownership of the apartment owners of the parking lot; (2) if the costs are not apportioned, the bicycle lots, the outdoor parking lots, and certain underground or indoor parking lots as stipulated by the regulations should be jointly owned by all owners of apartments in that building; (3) The apartment owners may specify the exclusive rights to use each units which are jointly owned based on the agreement concluded among them; (4) in addition to the foregoing , the units of the inside parking lots of the apartment buildings can be regarded as independent objects and the constructors can sell them separate from the apartments.