Opening restaurants, mahjong parlors and supermarkets in residential areas requires the unanimous consent of these people!

I believe all my friends know that it has become a common phenomenon to open mahjong halls, supermarkets and restaurants in the community. Therefore, the personnel entering and leaving the community are relatively complicated, which brings security risks to the living environment and often brings serious noise and oil smoke pollution. So are these "housing reforms" legal? Let's get to know it together!

Key clause

Article 279 of the Civil Code

Interpretation of legal change

With the development of economy, in the case of building ownership, it is more and more common for owners to change residential houses in residential areas into commercial houses such as restaurants and entertainment, as well as business houses such as operating companies and service industries. In practice, this situation is called "changing residence into business". "Changing residence to business" may lead to the disorder of migrants entering and leaving the community and increase the insecurity in the community; Interfere with the normal life of the owners, causing problems such as tight use of public facilities such as parking spaces, elevators and water and electricity in the community. Article 279 of the Civil Code clearly stipulates that in the case of "change of domicile to business", the opinions of the interested parties should not be applied to the majority decision, and clearly stipulates that the unanimous consent of the interested parties is required.

Referee rules

Mobile operators set up industrial communication base stations in residential buildings to engage in business activities without authorization, which should be regarded as the behavior of "changing residence to business" prohibited by law —— Zhao Mogang and others v. the owner of a mobile operator.

The gist of the case: Without the consent of interested owners, mobile operators set up industrial communication base stations in residential buildings to engage in wireless communication, which is contrary to the nature of the original houses, and does not belong to the rational use of the roof of * * * based on the needs of specific use functions of proprietary parts, which has constituted an infringement on the property rights of * * *, and should be considered as the "house reform operation" behavior prohibited by law.

Trial Chamber: Jingzhou Intermediate People's Court, Hubei Province.

The user of a house who changes his domicile into a business house shall bear the same legal obligations as the owner. In addition to abiding by laws, regulations and management regulations, it is also necessary to obtain the consent of interested parties —— Zhang v. Zheng's Wuhan Branch.

The essence of the case: when trying the case of condominium ownership, even if the owner's use of the house does not cause noise, sewage and odor to other condominium owners, as long as the use of the house changes, it will be considered that the behavior has affected the owner's peaceful life, which belongs to changing the house into a business house and should be handled in accordance with the provisions of the owner on changing the residential use. Housing users who change their houses into business houses shall bear the same legal obligations as the owners. In addition to abiding by laws, regulations and management regulations, it should also obtain the unanimous consent of interested owners.

Trial Chamber: Wuhan Intermediate People's Court, Hubei Province.

In violation of laws, regulations and management regulations, the owner's house shall not be changed into a business house-Chai Mohong and He Owner's exclusive right dispute case.

The gist of the case: if the owner changes the residence into a business house, he should not only abide by the laws, regulations and management regulations, but also obtain the consent of the interested owners. Without the consent of other owners of the building, the owner changed the house involved from residential use to business use without authorization, which infringed on the rights of other owners of the building. Other owners of this building, as interested owners, have the right to ask them to resume the use of the house.

Case number: (20 15) Bin Gongmin Chu Zinuo. 1403

Trial Chamber: Tianjin Binhai New Area People's Court.

Owners change their houses into business premises without authorization, and interested owners have the right to request to remove obstacles, eliminate dangers and restore to the original state-Li Moufeng and Zhang Moumei, Li Mouqi and Zhang Mouqi remove obstacles disputes.

Main idea of the case: the owner changed the house involved into a business house and rented the hotel to others without the approval or consent of other interested owners. The owner's behavior left a hidden danger to the structural safety of the building involved, and caused certain pollution and damage to the living environment of the adjacent owners, damaging the legitimate rights and interests of interested owners. The interested party has the right to demand the removal of obstacles, the elimination of dangers, restitution or compensation for losses.

Case number: (20 15) Four ends of smokers No 1 158.

Trial Chamber: Intermediate People's Court of Yantai City, Shandong Province.

Judicial viewpoint

1. How to determine the range of interested owners?

The definition of interested parties should not only consider the influence or possible influence on the safety and tranquility of the owner's residence and living environment, but also consider the influence on the exclusive value of his real estate. In practice, when judging whether an owner belongs to the interested party mentioned in this paper, we should pay attention to the following points: First, it should have the owner's identity stipulated by law. In practice, it should be recognized that property users who specifically live or use the property according to the contract or legal provisions enjoy the same rights as the owners. Second, the legitimate rights of the owners must or may be infringed. The legal rights mentioned here refer to the specific rights enjoyed by the owner as the owner of the building, such as distinguishing exclusive rights. Third, there is a legal causal relationship between the damage and the behavior of the "housing reform business" owners. In terms of location, other owners in this building are of course interested owners, but it is not appropriate for the law to identify all owners in the whole community as interested owners. In practice, it is indeed possible that the owners outside the building in the building division are also interested in the behavior of "changing residence to business", but it is difficult to define the scope of these owners in a unified way. If the owners inside and outside the building advocate that there is interest in the behavior of "changing residence to business", they should prove the existence of interest, that is, the value of the house has been or may be adversely affected. Owners of residential quarters should also give non-owners the same right of objection when renting or lending houses.

2. What are the legal consequences without the unanimous consent of interested owners?

This article stipulates that the legality of the behavior of "changing residence to business" needs to meet two conditions: compliance with laws, regulations and management regulations; It shall be unanimously agreed by the interested owners. Without the unanimous consent of stakeholders, their actions are still illegal. Therefore, this article actually becomes the legal basis for the owner of the "housing reform business" to bear the corresponding civil liability for the resulting damage consequences. It is worth noting that "Property Law" stipulates that owners who change their houses into business houses shall not only abide by laws, regulations and management regulations, but also obtain the consent of interested owners. In practice, some practices determine the opinions of interested parties according to the majority decision, which violates the original intention of legislation. Therefore, this article clarifies that the opinions of interested owners in the "housing reform business" should not be applied to the "majority decision", and clearly stipulates that the unanimous consent of interested owners is required. However, it should also be clear that the unanimous consent of interested owners is only a necessary condition on the issue of "changing residence to business". Owners must abide by the provisions of laws, regulations and management regulations when changing their houses into business houses. These two conditions must be met at the same time, and both of them are indispensable, so that the house can be changed into a business house reasonably and legally. In practice, some "residence-to-business" owners claim the legality of their actions on the grounds of handling industrial and commercial registration and obtaining business licenses, so as to counter the opposition of stakeholders. The fact that the owner of "residence to business" has gone through the industrial and commercial registration and obtained the business license cannot change the current situation that his behavior lacks legitimacy. The fact that industrial and commercial registration has been carried out and a business license has been obtained belongs to the scope of administrative registration, and does not involve the effectiveness of the civil act of "changing residence into business". This fact cannot limit the effectiveness of this clause.

(Excerpted from: Editor-in-Chief of the Supreme People's Court Civil Code Implementation Leading Group, Understanding and Application of Property Right Compilation of People's Republic of China (PRC) Civil Code (I), published by People's Court Press in 2020, pp. 384-386. )

Relevant laws

The Supreme People's Court's interpretation of some issues concerning the application of law in the trial of disputes over condominium ownership of buildings.

Article 1 A person who has registered according to law or obtained the ownership of the exclusive part of a building in accordance with the provisions of Articles 229 to 231 of the Civil Code shall be recognized as the owner referred to in Chapter VI of Book II of the Civil Code.

Based on the civil legal act of buying and selling commercial housing with the construction unit, a person who legally occupies the exclusive part of the building but fails to register the ownership according to law can be identified as the owner referred to in Chapter VI of Part II of the Civil Code.

Article 10 In accordance with the provisions of Article 279 of the General Principles of the Civil Law, if the owner changes his residence into a business house without the unanimous consent of the interested parties, and the interested parties request to remove the obstruction, eliminate the danger, restore to the original state or compensate for the losses, the people's court shall support it.

The people's court will not support the most interested owners who agree to change their houses into business premises for defense.

Article 1 1 If the owner changes the house into a business house, other owners in the building shall be regarded as "interested parties" as mentioned in Article 279 of the Civil Law. In the division of buildings, if the owners outside the building claim to be interested in themselves, they should prove that their house value and quality of life have been or may be adversely affected.

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