Simon Says: Can Management fees be increased without consent of owners?

Published
11/03/2017 by

This is the thirty-sixth in a weekly series of legal advice provided in a short and entertaining story format.

 

每周轻松有趣法律常識故事系列 - 第36篇

 

 

Keywords: contract, property management contract, management fee, change of term

 

关键词:合同,物业管理合同,管理费,条款更改

 

 

Can Management fees be increased without consent of owners?

 

西门说法:未经业主同意可以加收管理费吗?

 

Carrie lives in the Twin Towers, a classy community in Hangzhou, which is managed by Swindle Property Management. Swindle initially charged a management fee of 2 Yuan per square meter for a period of five years at the time it was appointed, but they decided to increase it to 4 Yuan per square meter in order to increase earnings a year later.

 

Carrie住在杭州双子塔高档社区,归属Swindle物业管理公司管理。Swindle最初规定管理费为2元/平方米,为期5年,但为了来年增加收入,故决定将管理费增加到4元/平方米。

 

Intrigued, Carrie went up to them to inquire about this sudden increase. Bob, the general manager of Swindle, replied, “Inflation, Carrie, inflation. Everything is getting more expensive this year, and so do the management fees.”

 

Carrie对此感到莫名其妙,于是向Swindle询问了一番。 Swindle的总经理Bob这样回答道:“Carrie,通货膨胀,通货膨胀呀。今年一切都变得越来越贵了,管理费也是如此。”

 

“I know inflation exists, but surely not by one-fold? I am definitely not paying for this increase, and I am sure other owners will not pay as well.” Carrie spat. “Don’t pay then, we will be forced to cut down costs by half, like laying off half the security guards. How would you like that? And the security cameras too, I will sell half of them.”

 

Carrie愤愤不平道:“我知道是有通货膨胀,但物价肯定不会涨一倍。我是不会多付这笔钱的,我相信其他业主也会这么做”。Bob说:“要是不付钱,那我们就真的迫于无奈得想法削减一半的成本,比如解雇一半的保安人员。你觉得怎么样?而且安全监控头也减少一半,然后卖了他们。”

 

“We chose Swindle because you’ve pledged a fair price and quality service. Try raising the fee by one penny, and you shall receive nothing at all.” Carrie said.

 

Carrie说:“我们选择Swindle,是因为你承诺给我们一个公道的价格,提供优质的服务。要是试图想多收一分钱的话,你将一无所获。”

 

Can Carrie and other owners refuse to pay the management fee?

 

那么,Carrie 和其他业主能否拒绝支付增收的管理费?

 

 Simon Says - Episode 36: Can Management fees be increased without consent of owners?

 

Prof Simon Says:

西门教授说法:

 

Among others, management fee is a contractual term of the property management contract and, like other terms, such term can only be adjusted by taking considerations of customer price index (CPI) in general together with other factors.

 

管理费系物业管理合同的条款之一,一般来说,这类条款与其他条款一样,只能通过考虑客户价格指数(CPI)与其他因素加以调整。

 

The property management contract determines the rights and obligations of the Property Management Office and the owners and if the property management company increases the management fee on its own merits, it amounts a change of contract terms unilaterally. Any amendment of a contract term, it needs explicit consent from owners or it needs displaying the notice of increase with justified reasons, for example CPI, failing which the owners have the right to refuse to accept such change.

 

物业管理合同规定了物业管理部门和业主双方的权利与义务,如果物业管理公司以自身优势加收管理费,则属于单方面改变合同条款。任何合同条款的修改,都需征得业主明确同意,或者以正当理由告知加收费用通知,例如消费者价格指数,否则,业主有权拒绝接受此类条款变更。

 

However, if management office provides its services in accordance with the terms and conditions of the Management Contract, and the owners should pay the management fees in full and on time. Also under China’s Contract Law, there are the principles of integrity and creditability imposed to the parties.

 

但是,如果管理部门根据管理合同的条款和条件提供相应服务,业主应全额并及时支付管理费用。根据《中华人民共和国合同法》规定,签署方应履行诚信守信之原则。

 

Therefore, Carrie, as an owner may refuse to pay the increased portion of the fee but not all. The reason is such portion is changed unilaterally by the Property Management Office without consent of the owner.

 

因此,Carrie作为业主可以拒绝支付部分增收管理费用,而并非全部拒绝。因为物业管理部门未经业主同意,单方面擅自增收了管理费用。

 

Contract Law of the People’ Republic of China (1999)

 

Article 8 Binding Effect; Legal Protection A lawfully formed contract is legally binding on the parties. The parties shall perform their respective obligations in accordance with the contract, and neither party may arbitrarily amend or terminate the contract.

 

《中华人民共和国合同法》(1999年施行)

第八条依法成立的合同,对当事人具有法律约束力。当事人应当按照约定履行自己的义务,不得擅自变更或者解除合同。

依法成立的合同,受法律保护。

 

 

For more about this or to contact Professor Simon Choi at www.acmeardent.comsimonhkchoi@163.com, +86 13823677853 or by WeChat: simonhkchoi. 

 

ACME Ardent's Simon Choi WeChat QR Code

 

 

Simon Choi

About the Author: Professor Simon Choi

Prof Simon Choi, solicitor and linguist, is an international lawyer, qualified to practise law in England & Wales and in Hong Kong, China. Simon graduated from law schools of the Peking University, the University of London and the University of Hong Kong respectively, with an in-depth knowledge of Chinese laws and common laws and with more than 20 years experience in China practice and international trade, investment, finance, merger & acquisition. He is an adjunct professor of laws at the Zhongnan University of Economics and Law. Simon is the founding partner of Acme Ardent and can be reached at simonhkchoi@163.com or +86 13823677853.

 

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