Typical Cases of Owners' Tolerance Obligations in the Case of Installing Elevators in Old Residential Areas (II)

This article selects some reference cases from the case database of the people's courts, and sorts out the relevant adjudication rules, expert opinions, laws and regulations around the topic of the owner's tolerance obligation in the case of installing elevators in old residential areas, for readers' reference.

Originally published in the WeChat public account of "Faxin".

Expert opinion

1. Constitutive elements for the exclusion of nuisance in the protection of property rights

First, the subject of the right to claim for the exclusion of the obstruction and the right to prevent the obstruction is the owner or the person exercising the power of ownership in accordance with the law, as well as the owner of other property rights. Owners include co-owners, property administrators and agents of the owners. With reference to the provisions of this article (Article 236 of the Civil Code), the owner of other property rights may also exercise the right to claim for the exclusion of nuisance and the right to claim for prevention of nuisance.

Second, it is possible to exercise the right to claim for exclusion of nuisance and the right to claim for prevention of nuisance. If the specific thing has been damaged or lost, the right to claim for the exclusion of the nuisance and the right to prevent the nuisance will lose its meaning and possibility, and the right holder can only file other claims for damages. At the same time, the nuisance must have the possibility of being excluded, and if the nuisance cannot be objectively eliminated, there is no room for the right to claim exclusion of nuisance.

Third, there is a fact that the real right is or may be obstructed. In the traditional civil law theory, the right to exclude the right to claim for nuisance must be interfered with by others in a manner other than possession. If the property right is infringed by possession, the right holder shall claim the right to claim the return of the original thing. These actions to which the right to exclude the nuisance claim are directed: infringement of the subject matter; Illegally using the property of others, so that the right holder cannot exercise his rights in kind; illegally setting a burden on someone else's property; Other nuisances. At the same time, the aforementioned nuisance is ongoing. If the nuisance has ended, there is no room for the exclusion of the nuisance claim. If the nuisance that has been completed has indeed caused damage to the right holder, the right holder may file a claim for damages. In the case of a claim for prevention of nuisance, there must be a risk of nuisance to the property right. The danger must be real. By "real", we mean that the danger persists and has a high probability of serious harmful consequences, and the nuisance has the possibility of occurring but has not actually occurred.

Fourth, the act of obstructing or likely to obstruct the real right causes the right holder to be unable to exercise its rights normally. This is a consequence element for the exercise of the right to claim for the exclusion of nuisance and the right to prevent the obstruction. In other words, it must be premised on the illegality of the nuisance. According to the general theory, the right holder has no obligation to tolerate as the criterion. If the degree of nuisance is slight, and the right holder should tolerate such nuisance based on daily life experience, the right holder may not claim the removal of the nuisance. For example, a downstairs resident may not claim a nuisance exclusion claim for the slight footsteps of an upstairs resident.

(Excerpted from the Supreme People's Court's Leading Group for the Implementation of the Civil Code, "The Application of the Civil Code of China (Property Rights Volume)", People's Court Press, 2022 edition, pp. 266~267)

2. Persons adjacent to immovable property have a duty of moderate tolerance

Persons adjacent to immovable property have a duty of tolerance to a moderate extent, the limits of which should be consistent with the principle of equity. The installation of elevators in old communities is not only the implementation of the legal installation of elevators, but also the result of the rebalancing of the interests of all parties. The owners should not only vote and apply for approval in accordance with laws and regulations, but also uphold the socialist core values of harmony and friendliness, and jointly build a rational and generous neighborhood relationship of mutual help. Necessary conditions and procedures for legally applying for the installation of elevators:

(1) Owners' voting. In accordance with Article 278 of the Civil Code of the People's Republic of China, the installation of elevators in existing residential houses is a change in the use of the common part of the building, and the matter shall be voted on by the owners of the exclusive part with the participation of more than two-thirds of the area and the number of people, and with the consent of more than three-fourths of the owners of the exclusive part and the number of people participating in the voting.

(2) Administrative examination and approval. The installation of elevators should also be reviewed by the administrative departments on whether they comply with the planning, fire protection and other issues, according to the "Hunan Province Urban Existing Residential Elevator Guidance", the main body of the elevator application should first be submitted to the sub-district office or township for preliminary examination, and then reviewed by the housing and construction, fire and other departments. The provisions of the Civil Code on adjacent relations determine the obligation of tolerance between neighbors of immovable property, and advocate harmony, tolerance, mutual understanding and mutual accommodation. The plan for the installation of elevators that have been approved by the owner's vote and administrative approval is protected by law and should be implemented. Even if it has a certain impact on the living environment of the objecting owner, because it has a moderate obligation to tolerate, it shall not hinder the installation construction, otherwise it will bear the corresponding legal responsibility.

If the installation of elevators does have a greater impact on the ventilation, lighting and other living environment of the opposing owners, appropriate compensation can be requested through negotiation or litigation in accordance with the principle of fairness. If the vote for the installation of elevators does not comply with the provisions of the law and damages its legitimate rights and interests, it may be revoked in accordance with the provisions of Article 280 of the Civil Code. If the approval procedure for elevator installation is not legal, such as failing to conduct on-site review of ventilation, lighting, fire safety hazards, etc., you can raise objections to the corresponding administrative acts of the administrative organs to protect your rights.

(Excerpted from "Low-rise Users Obstruct the Legal Installation of Elevator Construction", People's Court Daily, April 12, 2023, 3rd edition)

Legal basis

Civil Code of the People's Republic of China

Article 236: [Right to Request Removal of Obstruction]Where a real right is obstructed or may be obstructed, the right holder may request that the nuisance be removed or the danger eliminated.

Article 278: [Matters to be Jointly Decided and Voted on by Owners] The following matters shall be jointly decided by the owners:

(A) to formulate and revise the rules of procedure of the general meeting of owners;

(2) Formulating and revising management regulations;

(3) To elect the owners' committee or replace the members of the owners' committee;

(D) the selection and dismissal of property service enterprises or other managers;

(E) the use of funds for the maintenance of buildings and their ancillary facilities;

(6) Raise funds for the maintenance of buildings and their ancillary facilities;

(7) Reconstructing or reconstructing buildings and their ancillary facilities;

(8) Changing the use of the common part or using the common part to engage in business activities;

(9) Other major matters related to co-ownership and co-management rights.

Matters jointly decided by the owners shall be voted on by the owners of the exclusive part accounting for more than two-thirds of the area and the number of owners accounting for more than two-thirds. Decisions on the matters provided for in items 6 through 8 of the preceding paragraph shall be made with the consent of more than three-quarters of the owners of the exclusive portion of the voting area and more than three-quarters of the owners participating in the voting. Decisions on other matters in the preceding paragraph shall be made with the consent of more than half of the owners of the exclusive portion of the voting area and more than half of the owners participating in the voting.

Article 280: [Effect of Decisions of the General Meeting of Owners and the Owners' Committee] The decisions of the General Meeting of Owners or the Owners' Committee shall be legally binding on the owners.

Where a decision made by the owners' general meeting or the owners' committee infringes upon the lawful rights and interests of the owners, the aggrieved owners may request the people's court to revoke it.

Article 288: [Principles for Handling Adjacent Relationships]Adjacent rights holders of immovable property shall correctly handle adjacent relationships in accordance with the principles of conducive to production, convenience of life, solidarity and mutual assistance, and fairness and reasonableness.

The full text is reprinted from the WeChat public account "Huazheng Minshang"