THE REALITY OF BUILDING MANAGEMENT ABUSES POWER - LEGAL ASSESSMENTS

Currently, the problem of the building  management abuses power, "bullying" residents in the apartment building is happening more and more. At the seminar "Who protects the rights of residents in the apartment building" recently held in Ho Chi Minh City, many opinions reflecting the current situation of the building management were recognized as the Board of Directors, resolutely, not handing over houses even though people have bought houses and implemented all paperwork, voluntarily raise prices for equipment maintenance too high or pay fines when people make comments at the apartment building conference.

Will the management board of the apartment building be able to make such decisions? What are their rights and obligations? The DTD will answer those questions through the following article.

1. Condominium management board concept

The management board is an organization that represents all apartment building owners. The management board is responsible for the management and operation of the apartment building in accordance with the housing law.

Requirements for the establishment of an apartment building management board are set out in Clauses 1 and 2, Article 103 of the Law on Housing 2014. Accordingly, in the case of an apartment building with one owner or an apartment building with more than one owner, having less than 20 apartments, the owners and occupants of the apartment building shall agree on the establishment of the management board of the apartment building or not. In case an apartment building has more than one owner and has 20 apartments or more, the establishment of an apartment building management board is required.

Members of the management board of an apartment building include representatives of owners and occupants of the apartment building (for single-owner condominiums) or representatives of apartment building owners and investors. (if any) and condominium occupants participate in the apartment building conference in some cases (for apartment buildings with multiple owners).

2. Rights and responsibilities of the management board of the apartment building

Article 104 of the Law on Housing 2014 and Article 41 of the Regulation on management and use of condominiums issued together with Circular 02/2016 / TT-BXD, amended and supplemented by Circular 06/2019 / TT-BXD prescribing the Rights and obligations of apartment building administrator are as follows:

(i) For a single-owner apartment building, the management board of the apartment building has the following rights and responsibilities:

- Urge and remind apartment building owners and occupants to comply with the rules and regulations on management and use of the apartment building;

- Collect, synthesize opinions and recommendations of condominium users on the management, use and provision of condominium services to coordinate with relevant authorities, organizations and individuals. consider and settle;

- Coordinate with local authorities and residential groups in building a civilized lifestyle, maintaining social order and safety in the apartment building;

- Comply with the regulations on operation of the management board of the apartment building approved by the apartment building meeting, not to self-dismiss or add members of the management board of the apartment building;

- Enjoy responsibility remuneration and other reasonable expenses according to the decision of the apartment building meeting;

- To take responsibility before law, to owners and occupants of the apartment building for exercising rights and responsibilities inconsistently with regulations in this Clause.

(ii) In the case of a multi-owner apartment building, the Management Board of the apartment building exercises the same rights and responsibilities with that of the one-owner apartment building management board, in addition to exercising the rights and Responsibilities are as follows:

- Manage and use funding for maintenance of shared portions of the apartment building in accordance with this Law and decisions of the apartment building meeting; report to the Apartment Building Conference on the collection and expenditure of these expenses;

- Request the condominium conference to approve the service charge for condominium operation management;

- Sign a contract to provide condominium operation and management services with the investor or a unit with functions and capabilities to manage and operate the apartment building after it has been selected by the apartment building meeting according to regulations in Point d, Clause 3, Article 102 of this Law.

If an apartment building does not require a management unit to operate as prescribed at Point b, Clause 1, Article 105 of this Law and is assigned by the management board of the apartment building meeting to manage and operate. the condominium administrator shall collect and manage and operate expenses according to decisions of the apartment building meeting;

- Sign contracts with units capable of housing maintenance in accordance with the construction law to maintain the shared portions of the apartment building and supervise maintenance activities. The maintenance of shared areas can be done by the unit that is managing and operating the apartment building or by another unit capable of maintenance in accordance with the construction law.

Thus, in comparison with the above regulations, the management board of the apartment building carried out a number of acts such as refusing to hand over the house, self-adjusting the maintenance price of equipment for common use, refusing to comment. Contribution of occupants at the apartment building meeting is inconsistent with the Law on Housing and the Circular on the Regulations on management and use of apartment buildings.

Circular 02/2016 / TT-BXD on Issuing regulations on management and use of condominiums, amended and supplemented by Circular 06/2019 / TT-BXD also sets out regulations for the management board of houses. The condominium makes decisions beyond authority.

Specifically, Clause 4 Article 17 of this Circular stipulates:

“Article 17. Condominium Management Board

4. Decisions of the Management Board of the apartment building, if beyond the powers prescribed in Article 41 of this Regulation, shall be of no legal validity; in case of causing damage to the legitimate rights and interests of organizations and individuals, the members of the Managing Board must compensate according to the provisions of law."

Thus, if the building management makes decisions beyond its permissible powers, these decisions have no legal validity. If these decisions cause damage to the legitimate rights and interests of organizations and individuals, the members of the Board of Directors must compensate according to the provisions of law. Condominium users can report to the district-level People's Committee in accordance with Clause 3 Article 48 of Circular 02/2016 / TT-BXD on the issuance of regulations on management and use of apartment buildings, as amended and supplemented by Circular 06/2019 / TT-BXD to be resolved.

The building management is established to carry out condominium management and operation tasks. Residents in the apartment building need to understand the operating model as well as the scope of rights and responsibilities of the management board of the apartment building in order to best protect their own interests.