Several legal problems in the examination and approval of adding elevators to old buildings

1. What is the legal basis for installing elevators in old buildings?

It is nothing more than the Property Law of People's Republic of China (PRC), the Building Law of People's Republic of China (PRC), the Urban and Rural Planning Law of People's Republic of China (PRC), and the Guiding Opinions on Installing Elevators in Existing Houses in Guangdong Province made by the Guangdong Provincial Construction Department on the basis of the above three laws.

However, there is no legal basis for installing elevators in old buildings at present.

A Article 76 of the Property Law of People's Republic of China (PRC) stipulates that the following matters shall be decided by the owner: (6) Rebuilding and rebuilding buildings and their ancillary facilities; Decisions on matters specified in Item (6) of the preceding paragraph shall be subject to the consent of the owners whose exclusive parts account for more than two-thirds of the total building area and more than two-thirds of the total number of people.

This clause defines the elevator as an auxiliary facility.

Article 2 of the Building Law of People's Republic of China (PRC). Construction activities mentioned in this Law refer to the construction of various buildings and their ancillary facilities and the installation of supporting lines, pipelines and equipment.

This regulation defines the installation of elevators as a construction activity.

C Article 40 of the Urban and Rural Planning Law of People's Republic of China (PRC) stipulates that if buildings, structures, roads, pipelines and other projects are built in urban and town planning areas, the construction unit or individual shall apply to the competent department of urban and rural planning of the people's government of the city or county or the people's government of the town determined by the people's government of the province, autonomous region or municipality directly under the Central Government for a construction project planning permit.

The competent department of urban and rural planning of the people's government of a city or county or the people's government of a town as determined by the people's government of a province, autonomous region or municipality directly under the Central Government shall publish the general plan of the approved detailed planning and design scheme of the construction project according to law.

This clause identifies the installation of elevators as an act that requires planning permission.

To sum up, "Guiding Opinions on Installing Elevators in Existing Houses in Guangdong Province" puts forward guiding opinions on installing elevators in existing houses according to People's Republic of China (PRC) Property Law, People's Republic of China (PRC) Construction Law, People's Republic of China (PRC) Urban and Rural Planning Law and other relevant technical standards of engineering construction, combined with the reality of our province.

The Guiding Opinions on Installing Elevators in Existing Houses in Guangdong Province refers to Article 76 of the Property Law. In fact, the property law did not solve the problem of adding elevators, because this problem did not appear when the property law was enacted, and legislators did not consider it. In fact, "reconstruction" and "addition" are basically two different things. Of course, you can't stop doing this just because you can't find the corresponding basis. This requires innovative thinking.

Second, should the installation of elevators in old buildings be decided by more than two-thirds of property owners, or must all property owners have the final say?

Planning Bureau of Chancheng District, official website, stipulated in "Guidelines for Installing Elevators in Old Houses and Applying for Planning Permission" that one of the conditions for installing elevators in old houses is that "the installation of elevators should be approved by the owners whose exclusive parts account for more than two-thirds of the total construction area and more than two-thirds of the total number of people".

The Trial Measures for Installing Elevators in Existing Houses in Guangzhou, which is seeking opinions, has made specific provisions on applicants, conditions, sources of funds, construction application procedures, project supervision, registration procedures, and compensation negotiated between owners. The "Measures" clearly stipulate that two "two-thirds" must be met: first, the architectural design scheme of adding elevators to existing houses should be approved by the owners whose exclusive parts account for more than two-thirds of the total construction area and more than two-thirds of the total number of people, and the scheme should solicit the opinions of all owners; Second, it should comply with the relevant norms, standards and requirements of urban planning, architectural design, structural safety and fire safety.

As a practical project that benefits the elderly residents, it is said that this is the sixth time that Shanghai Laogongfang has modified the elevator. However, the official believes that the amendment can only be implemented with the consent of all residents in the community, and the delegates questioned that the provisions of the property law can only be implemented with the consent of two-thirds majority.

Why can't the property law reach the idea of government departments? Because the installation of elevators will inevitably lead to the adjustment of interest relations, one of which is the loss of exclusive rights of owners. The main rights of low-rise owners are the right to rest, the right to light and the right of way. Practice has proved that the fundamental solution to this problem is compensation, nothing else. In addition, if two-thirds of the majority agree and the other one-third disagree, it is actually impossible to install, which is a factor we must consider.

The third is what is consent?

Two "two-thirds agree", what exactly is agreement? This goal plan must be clear. Some people will say, "I will agree if I don't pay, and some people will agree if I have less money." Whether it is "two-thirds agreement" or 100% agreement, the cost sharing ratio must be included first, otherwise it is not feasible to implement it. At present, the method of publicity without objection is difficult to do this, and it is necessary to sign one by one.

Is the approval of installing elevators in old buildings a formal review or a substantive review?

The current review can be divided into three types:

First, formal examination, that is, the registration authority only examines whether the application meets the statutory conditions, and does not investigate and verify the authenticity of the registered items.

The second is substantive review, that is, the registration authority not only formally reviews whether the application is legal, but also investigates and verifies the application items to ensure the legal effect of the registered items.

The third is compromise review, that is, the registration authority focuses on reviewing the registered items, especially those that are in doubt, and those that do not meet the statutory conditions are not registered. However, it cannot be presumed that the registered items are completely true, and the authenticity of the registered items ultimately depends on the ruling of law enforcement agencies. At present, China's registration is actually based on the principle of formal examination, supplemented by substantive examination.

However, neither formal review nor substantive review can completely exclude the review of the legality and authenticity of relevant facts. Legitimacy and authenticity are the same content examined by the registration authority. The substantive examination should examine the legality and authenticity, and the formal examination should also examine the legality and authenticity of relevant facts. The only difference is that the objects of examination are different. Formal examination only examines the written documents submitted by the parties, while substantive examination should also know or investigate other facts other than the submitted documents as needed to confirm the legitimacy and authenticity of the relevant facts. Therefore, even if it is determined that the registration authority only has the obligation or responsibility of formal review, of course, it does not rule out the review of the legality and authenticity of relevant facts. Article 7 of the Building Law of People's Republic of China (PRC) stipulates that before a construction project starts, the construction unit shall, in accordance with relevant state regulations, apply to the construction administrative department of the people's government at or above the county level where the project is located for a construction permit; However, except for small projects below the quota determined by the administrative department of construction in the State Council.

Article 8 To apply for a construction permit, the following conditions shall be met: (1) The formalities for examination and approval of land for construction projects have been completed; (two) the construction project in the urban planning area has obtained the planning permit; (three) the need for demolition, demolition progress in line with the construction requirements; (4) The construction enterprise has determined; (five) there are construction drawings and technical data to meet the needs of construction; (six) there are specific measures to ensure the quality and safety of the project; (seven) the construction funds have been implemented; (8) Other conditions as prescribed by laws and administrative regulations. The construction administrative department shall, within fifteen days from the date of receiving the application, issue a construction permit to the qualified application.

"People's Republic of China (PRC) Urban and Rural Planning Law" Article 40 To apply for a planning permit for construction projects, relevant certification documents for land use, construction project design scheme and other materials shall be submitted. A detailed construction plan shall also be submitted for a construction project that requires the construction unit to prepare a detailed construction plan. To meet the regulatory detailed planning and planning conditions, the competent department of urban and rural planning of the people's government of the city or county or the people's government of a town determined by the people's government of a province, autonomous region or municipality directly under the Central Government shall issue a planning permit for construction projects.

These are all formal reviews.

Fifth, what is the difference between civil liability and administrative liability?

How to distinguish the responsibilities arising from the approval of elevator installation?

Article 50 of the Urban and Rural Planning Law of People's Republic of China (PRC) stipulates that after the issuance of site selection opinions, construction land planning permits, construction project planning permits or rural construction planning permits, if the licensee's legitimate rights and interests are damaged due to the revision of urban and rural planning according to law, it shall be compensated according to law. The general plan of the construction detailed planning and construction project design approved according to law shall not be modified at will; If it is really necessary to amend, the competent department of urban and rural planning shall take the form of hearings and listen to the opinions of interested parties; If the amendment causes losses to the legitimate rights and interests of the interested parties, compensation shall be made according to law.

Personally, I think we should reduce the responsibility of the examination and approval authority by adding a third person or making a statement directly in the examination and approval.