Who and how are the community advertising fees charged by the property company allocated?
In the community elevator, door, road on both sides of the common various advertisements, some people say that these ads are introduced by property companies, but for advertising revenue to the owners or property companies, most owners are not very clear. So, does the property company have the right to introduce advertising? Do you want to obtain the owner's consent before introducing the advertisement? Who should control advertising revenue?
Who has the right to introduce advertising
To find out who is the main body of community advertising, we must first clarify the legal nature of community advertising. According to article 73 of the Property Law, roads within the construction zone are owned by the owners, except for public roads belonging to towns and cities. The green space in the construction area belongs to the owner, except that it belongs to the urban public green space or expressly belongs to the individual. Other public places, utilities and property service rooms within the construction area belong to the owners. Community advertising is generally set up on roads, building walls or elevators within the construction zone, so the introduction of community advertising is the use of buildings or ancillary facilities shared by the owners to carry out business. That is to say, the community owner is the decision-making power of the community advertising-related matters.
According to the property law, the owners have the right to share and jointly manage the common part of the community. The owners shall enjoy the rights and obligations of the common part of the community, and shall not fail to perform their obligations on the ground of giving up their rights. To formulate and amend the regulations governing the building and its ancillary facilities, other important matters relating to joint and joint management rights shall be subject to the consent of the owners of the proprietary part of the total area of the building and a majority of the total number of owners. Therefore, the final decision on whether or not to set up advertisements in the district, how to charge fees and how to dispose of the proceeds should be exercised by the owners of the community. Of course, the exercise of rights can be varied, can be exercised by the owners' assembly, the owners' committee, or can be entrusted to the property company or even lawyers to exercise.
"Property companies can play a unique role in community advertising." Generally speaking, the setting up of community advertising and other matters are handled by property companies, because from the point of view of convenient management, property companies because of management obligations, more convenient to carry out this work. And even if the owners have the right to introduce advertising, but because the community advertising setting affects the management of the property, from a reasonable point of view, should also let the property company participate in such matters. Because of this, the Property Management Regulations, as amended in 2007, clearly stipulate that property owners, shared facilities and equipment shall, with the consent of the relevant owners, owners' conferences and property companies, go through the relevant formalities in accordance with the relevant procedures. It can be seen that the advertising set up in the district should actually take into account the views of the owners and property companies. The opinion of the property company does not in essence restrict the rights of the owner, because the owner can limit the misconduct of the property company through the property service contract.
Is advertising revenue attributed to the property?
“既然设置小区广告是利用业主共有的建筑物或附属设施进行经营的行为，根据物权法第70条规定，业主对建筑物内的住宅、经营性用房等专有部Share.有所有权，对专有部分以外的共有部Share.有共有和共同管理的权利。那么，根据物权法第76条规定，有关共有和共同管理权利的其他重大事项要由业主共同决定。”按照《物业管理条例》第55条规定，利用物业共用部位、共用设施设备进行经营的，应当在征得相关业主、业主大会、物业公司的同意后，按照规定办理有关手续。业主所得收益应当主要用于补充专项维修资金，也可以按照业主大会的决定使用。小区规划区内的公共场所、公共设施，属于小区全体业主共有。在小区公共场所、公告设施上经营广告，应当经过小区全体业主同意或授权，物业公司不得擅自引入广告。经营广告所得，也应该归全体业主所有，业主有权要求物业公司披露相关账目，具体如何使用应当由业主或业主委员会决定或者根据物业服务合同约定进行处理。
In fact, most owners do not know about advertising revenue, if the property company unauthorized introduction of advertising or advertising revenue as their own, how do owners defend their rights? In accordance with the provisions of the Supreme People's Court's Interpretation on the Specific Application of Law in Cases of Distinguished Ownership Disputes in Buildings, the court shall support the construction unit or other actors in any unauthorized occupation, disposition of the common part of the owner, altering its use function or carrying out business activities, and the right owner requests the exclusion of obstruction, restituality, confirmation of invalidity of the disciplinary action or compensation for losses. Other actors here include property companies. Therefore, if a property company introduces advertising without authorization or owns the advertising revenue, the owners' committee may sue the property company for restoration, compensation for loss or return of income.
Community advertising revenue distribution decision in the owners, but also to consider policy orientation and the contribution of property companies. The ownership of advertising income belongs to the owner, so the right of distribution of income is also in the owner, but the distribution method should take into account the guidance of various systems. As stipulated in Article 80 of the Property Law, the cost-sharing and income distribution of buildings and their ancillary facilities shall be determined in accordance with the agreement; The Property Management Regulations stipulate that the proceeds earned by the owners shall be mainly used to supplement the special maintenance funds and may also be used in accordance with the decision of the owners' meeting. That is, when the owners decide on their own distribution, we should consider that this is the public income of the community, should be used as a priority for public expenditure, but also take into account the role of the property company to introduce community advertising, management costs changes and other factors, to pay the corresponding costs of the property company. In addition, whether the owner is responsible for community advertising affairs, or entrusted to the property company responsible for all proceeds should be open and transparent, while the owners must understand that the rights and obligations are equal, in the exercise of rights, enjoy the benefits at the same time, the corresponding costs, risks and so on should also bear.
As to whether the property company can offset the property fee revenue, at present many property companies introduce advertising without authorization, and advertising revenue as their own, the main reason is that the property fee can not be collected, the property company to make up the shortfall through advertising fees. However, the community advertising revenue and property fees belong to two different legal relations, if there is no clear agreement, the property company does not have the right to use advertising revenue to offset the property fees.
How to regulate community advertising chaos
Property companies think that the community advertising revenue is their own, and the owners do not know that they have control over advertising revenue, which reflects the community advertising management is more chaotic. Community advertising a wide variety of forms, some ads are public welfare, some are commercial, some ads are placed in neon lights, LCD screens, and some are posted on residential walls, or painted, hanging everywhere. And the community advertising management is also a lot of problems.
我国广告法对广告主、广告经营者、广告发布者从事广告活动有一系列禁止性和强制性约束条款。这些条款包括对广告必须进行审查，但在小区投放广告，无论物业公司还是业主委员会或全体业主一般都没有资格和能力对广告内容的真实性、合法性、科学性等进行审查。而对小区内的各种广告媒介附着物的出让，到底谁是适格的出让主体，谁是代理主体;在小区内投放广告的合同内容应该怎样拟订，费用以何种标准支付，由谁决定，收益应当归谁支配，怎样支配等问题，有的法律没有规定，有的虽然有了明确规定，但在实践中并未得到遵守。
In view of this situation, it is suggested that after the community owners stay, once the conditions are ripe, the owners' meeting should be held as soon as possible, the establishment of the owners' committee, by the owners' committee on the introduction of community advertising, income distribution and other issues with the property companies, once the negotiations are not possible, in the name of the owners' committee rights protection is more legitimate and feasible. In the selection of property companies, and property companies to the introduction of community advertising, income and liability for breach of contract to make a clear agreement. Generally speaking, the proceeds of community advertising can be agreed upon for public expenditure, such as to supplement the housing maintenance fund, improve community services, but also can be used to offset property management fees, public utility bills, and so on. In addition, a portion can be extracted as a reward to reward property companies and encourage them to provide better services. If a property company introduces advertisements without authorization or owns the advertising proceeds, the owner or the owners' committee may report the information to the local real estate administrative department in accordance with the provisions of the Property Management Regulations, and the real estate administrative department shall order the correction within a time limit, give a warning and impose a fine. In addition to reporting, property companies can also be sued. When suing, it is best to act in the name of the owners' committee, as the filed owners' committee is qualified as the subject of the proceedings. In addition, if the property company refuses to correct its misconduct, after the end of the property service contract, the owners' committee may remove the property company and re-elect other property companies.
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