Precedent No. 51/2021/AL was adopted by the Council of Justices of the Supreme People’s Court on November 25, 2021, and promulgated under Decision No. 594/QD-CA dated December 31, 2021, of the Chief Justice of the Supreme People’s Court.
1. What is a Precedent?
Precedent refers to arguments and rulings in legally effective judgments or decisions of the Court on a specific case selected by the Council of Justices of the Supreme People’s Court and promulgated by the Chief Justice of the Supreme People’s Court as precedents for Courts to study and apply in adjudication. (Article 1 of Resolution 04/2019/NQ-HDTP)
A selected precedent must meet the following criteria:
– It has the value of clarifying legal provisions that have different interpretations, analyzing and explaining legal issues and events, and pointing out principles, guidelines for handling, and legal norms to be applied in a specific case or expressing equity regarding issues for which there are no specific legal provisions;
– It is of standard nature;
– It has the value of guiding the uniform application of law in adjudication.
2. Precedent No. 51/2021/AL on the determination of ownership of car parking areas in apartment buildings
2.1. Source of the precedent
Judgment No. 82/2020/DS-PT dated March 6 + 23, 2020, of the People’s Court of Hanoi City regarding the case “Request to declare a service contract null and void, request for recognition of ownership of the basement” between the plaintiff, S Construction and Urban Development Investment Joint Stock Company, and the defendant, the Management Board of Mixed-use Building H; involved persons with related rights and obligations including 03 individuals.
Location of the precedent content:
Paragraph 22 of the “Court’s Assessment” section.
2.2. Overview of the precedent content
– Case situation:
The car parking area of the apartment building is constructed according to standards and is not allocated to the apartment sale price in the apartment purchase and sale contract.
– Legal solution:
In this case, the Court must determine that the car parking area of the apartment building is under the private ownership of the developer.
Legal provisions related to the precedent:
– Article 70 of the Law on Housing of Vietnam 2005 (corresponding to Article 100 of the Law on Housing of Vietnam 2014);
– Point b, Clause 1 and Point c, Clause 2, Clause 3, Article 49 of Decree No. 71/2010/ND-CP dated June 23, 2010, of the Government detailing and guiding the implementation of the Law on Housing;
– Circular No. 02/2016/TT-BXD dated February 15, 2016, of the Ministry of Construction on promulgating the regulation on management and use of apartment buildings.
Keywords of the precedent:
“Apartment building”; “Car parking basement”; “Private ownership of the developer”.
CASE CONTENT:
According to the petition and statements during the resolution process, the plaintiff and the plaintiff’s authorized representative presented:
S Construction and Urban Development Investment Joint Stock Company (referred to as S Company) was licensed by competent authorities as the developer of the Mixed-use Building H project, located at km 10, Road A, Ward B, District C, Hanoi (now No. 131, Road A, Ward B, District C, Hanoi).
According to the project’s legal documents approved by competent State agencies, the building consists of 34 above-ground floors (excluding technical floors and the roof) and 02 basements. Within this, the commercial, service, and office areas from floor 1 to floor 8 are directly operated or leased by S Company. The building construction started in late 2008 and was completed in late 2010; the area of the 02 basements and the commercial service floors of the building belong to the Company’s private ownership, included in the investment real estate list for depreciation according to regulations; the construction costs of the basement area and commercial service area were calculated separately and not allocated to the sale price of the building’s apartments. From November 2008, the Company opened apartment sales, and in late 2010, the building was officially put into use.
After going into operation, S Company hired a professional unit to manage and operate the building, then assigned it to the H Housing Project Management Board, a subsidiary of S Company. Since August 2016, the H Housing Project Management Board has been transformed into D Management and Service Business Co., Ltd. to meet the requirements for building management and operation in accordance with the provisions of Circular No. 02/2016/TT-BXD on the regulation on management and use of apartment buildings.
On September 26, 2016, S Company and the owners at the building held the first Apartment Building Meeting to elect the Building Management Board and promulgate the operating regulations of the Management Board of Mixed-use Building H. Accordingly, the Management Board consisted of 05 members: 03 representing the residents, 01 representing the commercial and office block, and 01 representing the Developer. The Management Board was organized according to the model of a Cooperative’s Board of Directors. The Management Board was recognized by the Ha Dong District People’s Committee under Decision No. 10974/QD – UBND dated November 15, 2016.
After the Management Board was established, D Management and Service Business Co., Ltd. continued to be the unit managing and operating the building. However, on August 24, 2017, the Management Board, represented by Mr. Do Thai S1 – Head of the Management Board, signed apartment building management service contract No. 01/2017/HDDV with a new management service provider, G Joint Stock Company, without following legal regulations, specifically:
– The Management Board did not hold a meeting and prepare minutes to reach the consensus of at least 75% of the Management Board members on the proposal to change the management unit as prescribed in Article 25 of Circular No. 02/2016/TT-BXD;
– The Management Board did not hold an Apartment Building Meeting to reach the consensus of at least over 50% of the building’s owner representatives on agreeing to change the management service provider as prescribed in Article 14 of Circular No. 02/2016/TT-BXD;
– The content of the management service contract signed between Mr. Do Thai S1 – Head of the Building Management Board and G Joint Stock Company on August 24, 2017, contained terms infringing upon the Developer’s ownership rights, specifically: the Management Board unilaterally disposed of property belonging to S Company’s private ownership without the Company’s consent: at Point n, Clause 1, Article 3 of the Service Contract between the Management Board and G Joint Stock Company, the two parties agreed on car parking services at the 02 basements of the building, which belong to S Company’s private ownership.
In the Apartment Purchase and Sale Contract as well as all related documents, there is no clause acknowledging or expressing that the basement for car and motorcycle parking and the floors from floor 1 to floor 8 are common property of the building; however, the Management Board arbitrarily hired G Company and Y Company to occupy and collect parking fees illegally at the 02 basements from September 2017 to date. The Management Board also had individuals wall up the back door of the supermarket warehouse on floor 1, obstructing the business activities and emergency exit of Mediamart Thanh Xuan supermarket from October 2017 to date.
S Company requested the Court to recognize the parking area according to the as-built records at basement 1 with an area of 2,330m2 and basement 2 with an area of 2,050m2 as belonging to the Developer’s ownership. Compel the Management Board and G Joint Stock Company to return this area to S Company; Declare the apartment building management service contract No. 01/2017/HDDV signed on August 24, 2017, between the Management Board and G Joint Stock Company and Service Provision Contract No. 02/2019/HDDV/BQT-YB signed on February 1, 2019, between the Management Board and Y Apartment Management and Operation Co., Ltd. as null and void; Compel the Management Board and G Joint Stock Company to restore the original state of the back door of floor 1 of Mediamart Thanh Xuan supermarket and compensate for damages caused by illegal infringement affecting S Company’s business activities.
During the case resolution and at the first-instance trial, the plaintiff withdrew the request for compensation for damages caused by the illegal infringement of the parking area in the 02 basements that affected S Company’s business activities, reserving the right to file a separate lawsuit for these damages.
Defendant: Management Board of Mixed-use Building H
– Mr. Do Thai S1 presented:
The Management Board of Mixed-use Building H was legally established and recognized under Decision No. 10974 dated November 15, 2016, of the Ha Dong District People’s Committee. According to this decision, the Management Board members included: Mr. Do Thai S1, Mr. Tran Van T, Mr. Nguyen Vu G1, Mr. Trinh Xuan T1, and Mr. Nguyen Khanh T2. Around March 2017, Ms. Bui Thi N replaced Mr. Nguyen Khanh T2. On August 27, 2018, Mr. Nguyen Van L replaced Ms. Bui Thi N. Currently, the Management Board consists of 5 members: Mr. Do Thai S1, Mr. Tran Van T, Mr. Nguyen Vu G1, Mr. Trinh Xuan T1, and Mr. Nguyen Van L. Initially, when the apartment building was newly operated and had no Management Board, the management was handled by a professional company hired by S Company but was not legal. On November 15, 2016, when the Management Board was established, it hired G Company to operate and manage the building. During the implementation, G Company did not perform correctly according to the contract, so the Management Board liquidated the contract with G Company on March 23, 2019. Immediately after, the Management Board signed a management service contract with Y Apartment Management and Operation Co., Ltd.
Regarding the plaintiff’s request to declare the Management Contract null and void, the defendant disagrees because the plaintiff has no authority to request this, as the building was put into use in late 2010. According to Circular No. 02 of the Ministry of Construction, after 01 year of use, the developer is responsible for electing the Management Board. However, past that deadline, the developer failed to establish the Management Board as per the law. The Management Board was only established 6 years later, specifically on September 26, 2016. On August 24, 2017, the Management Board signed a contract with G Company. During the implementation, G Company fully complied with legal regulations without violations. On the other hand, at this point, the Management Board has already liquidated the contract with G Company. Furthermore, the developer no longer has area in this building and thus has no right to request the annulment of the contract with G Company.
Regarding the request to determine the parking area in the basement as belonging to the developer: Based on the contract content, there is no clause stating this basement belongs to the developer’s management and use; thus, the area of these 2 basements is common property. According to the Company’s financial reports from 2010 to 2016, the parking area of the 2 basements was not mentioned. Since 2016, the Company added this area to the reports. The developer is requested to present the financial plan approved by the Department of Finance, including building records approved by the Department of Construction, as-built audit records by the State Audit, and documents from the Department of Finance. If these 3 agencies determine the developer invested capital to build the 2 basements, under the Law on Housing 2015, the parking part is for residents and must be determined as common property. Therefore, the parking area in these 2 basements will not be returned to the developer; instead, a value will be calculated to pay the developer.
Regarding the request to restore the original state of the back warehouse door of the 1st-floor supermarket and the request for the Management Board to compensate for damages caused by the illegal infringement and appropriation of the Company’s property, the Management Board was not involved and did not perform these actions, so it is not responsible for compensation or restoration.
– Mr. Trinh Xuan T1 and Mr. Tran Van T, members of the Management Board, presented:
Mr. T1 and Mr. T share the same view as S Company. Request the Court to declare Service Contract No. 01/2017/HDDV signed on August 24, 2017, between the Management Board and G Joint Stock Company and Service Provision Contract No. 02/2019/HDDV/BQT-YB signed on February 1, 2019, between Y Apartment Management and Operation Co., Ltd. and the Management Board as null and void; Recognize the parking area at basement 1 with an area of 2,330m2 and basement 2 with an area of 2,050m2 as belonging to the Developer’s ownership; Compel the Management Board and G Joint Stock Company to return this area to S Company; Compel the Management Board and G Joint Stock Company to restore the original state of the back door of the 1st-floor supermarket and compensate for damages caused by illegal infringement affecting the Company’s business activities.
Persons with related rights and obligations:
1. G Joint Stock Company (referred to as G Company) presented:
G Company has a business registration in the field of apartment building management and operation. On August 24, 2017, the Company signed a service contract with the Management Board of Mixed-use Building H, represented by Mr. Do Thai S1, to provide management services for the building at 131 Road A, Ward B, District C. According to the agreement, the contract was effective from September 1, 2017, to December 30, 2019. The work involved providing security, sanitation, technical services, and others… The contract was based on revenue and expenditure based on unit prices set by the Management Board. The number of vehicles and m2 for service fees were provided by the Management Board. G Company collected money based on data provided by the Management Board, which also set the fee levels for all types of services.
After signing the contract, G Company paid all initial investment costs such as: electricity bills for Ha Dong Electricity in August; technical equipment for operation, smart parking… until now, the Company has not recovered all invested capital, still supporting the project by about 100,000,000 VND. On January 15, 2019, the Company learned that the Management Board had signed a management service contract with another company. The Management Board unilaterally brought in another company, terminated the contract with G Company without discussion, and to date, there has been no document regarding contract liquidation. In fact, since January 20, 2019, G Company has not performed management operations at this building.
Regarding the plaintiff’s lawsuit requests: The Company is no longer managing this building and is no longer involved, so it has no opinion; issues arising between G Company and the Management Board will be requested for resolution in another case.
2. Y Apartment Management and Operation Co., Ltd. (referred to as Y Company) presented:
Currently, Y Company is performing the Service Provision Contract for Mixed-use Building H since March 1, 2019. The Company signed with the Management Board, not with D Company. The Company has performed the contract in accordance with the law. When the Company arrived to manage the building, it did not have to invest in technical equipment like card readers… Regarding the plaintiff’s lawsuit requests, Y Company requests resolution according to legal regulations.
3. M Vietnam Joint Stock Company (referred to as M Company) presented:
In September 2010, M Company signed a lease contract with S Company at Building H, 131 Road A, Ward B, District C. Initially, both parties signed for the basement and floors from 1 to 5. Around 2014, M Company only leased floors 1, 2, and 3 for business and office space. No issues occurred during the implementation until 2017, when the Management Board was established and continuously caused difficulties and damage to M Company’s business. Now that S Company has filed a lawsuit, M Company agrees with S Company’s request, asking the Management Board to stop obstructing M Company’s business and to demolish the wall at the back of floor 1.
In first-instance civil judgment No. 40/2019/DSST dated October 31, 2019, the People’s Court of Ha Dong District, Hanoi, ruled:
1. Accept part of the lawsuit request of S Construction and Urban Development Investment Joint Stock Company.
– Determine and recognize the car parking area at basement 1 as 942.5m2 and the car parking area at basement 2 as 1,882.5m2 as belonging to S Construction and Urban Development Investment Joint Stock Company.
– Declare Management Service Contract No. 01 dated August 24, 2017, between Mr. Do Thai S1 – Head of the Building Management Board and G Company, and Service Provision Contract No. 02/2019/HDDV/BQT-YB dated February 1, 2019, between Y Apartment Management and Operation Co., Ltd. and the Head of the Management Board of Mixed-use Building H as null and void.
– S Construction and Urban Development Investment Joint Stock Company has the right to dismantle and restore the original state of the back door of floor 1 of Mixed-use Building H as originally designed and approved by competent State agencies.
2. Terminate the request for G Company and Mr. Do Thai S1 to compensate for S Construction and Urban Development Investment Joint Stock Company’s damages.
Additionally, the judgment ruled on court fees, the right to appeal, and the judgment execution obligations of the parties.
Disagreeing with the first-instance decision, on December 2, 2019, Mr. Do Thai S1 appealed as the representative of the defendant – Management Board of Mixed-use Building H, claiming that the first-instance Court adjudicated non-objectively, violated laws, cited non-existent legal provisions, and seriously infringed upon the residents’ rights. He requested:
– Annul the entire first-instance judgment;
– Determine and recognize the entire area of the two parking basements as common property of Mixed-use Building H.
– Clarify the ownership of the 3 commercial floors of Mixed-use Building H, including the back wall of floor 1 where the developer is leasing to another unit.
– Request the plaintiff to settle and hand over maintenance funds, building records, complete and hand over the fire prevention and fighting system, hand over and inventory building equipment, and hand over common and private areas to the Management Board representing residents as per law.
At the appellate trial, the plaintiff maintained the lawsuit requests and agreed with the first-instance judgment.
The defendant maintained the appeal requests, disagreed with the first-instance judgment, and requested the dismissal of the plaintiff’s lawsuit.
The lawyer protecting the plaintiff’s legal rights and interests, after presenting the arguments, requested the Appellate Court to dismiss the defendant’s entire appeal; maintain the first-instance decision, accepting the plaintiff’s request for legal ownership of the parking area in the two basements and annulling the two management service contracts signed between the Management Board and G Company and Y Company at 131 Road A, Ward B, District C, Hanoi.
The representative of the Hanoi City People’s Procuracy stated:
On procedure: The proceeding officers and participants complied with the Civil Procedure Code;
On content: After analyzing the case and reviewing the defendant’s appeal, the representative stated:
Basis for determining ownership of part of the two basements at 131 Road A, Ward B, District C, Hanoi:
– At the time of apartment sales from late 2008 to 2010, there were no regulations on common and private ownership, so the contracts did not clearly state these areas. Based on Official Dispatch No. 279/BXD dated October 18, 2017, of the Ministry of Construction guiding S Company; Based on Decision No. 12 dated April 25, 2008, of S Company’s Board of Directors approving Building H; Based on Official Dispatches No. 2.0005/18/CV-AC dated November 6, 2017, and No. 2.0014/18/CV-AC dated January 18, 2018, of E Audit and Advisory Co., Ltd. confirming: “Revenue and costs from the 2 basements were recorded and declared for VAT and corporate income tax annually. Construction costs for Building H allocated to the 2 basements amounted to 30,229,191,000 VND, recorded as fixed assets of the Company and not allocated to the apartment prices.” There is sufficient basis to determine the parking area in basements 1 and 2 of Building H is under S Company’s management.
However, according to Point c, Clause 2, Clause 3, Article 49 of Decree 71/2010/ND-CP on common ownership, parking areas (bicycles, disabled vehicles, two-wheeled motor vehicles) are common property. For car parking areas, as they were not allocated to the apartment price, they belong to the developer’s private ownership.
– Regarding the management service contracts with G Company and Y Company: According to Article 14, Article 25, Clause 2, Point a of Circular 02/2016/TT-BXD and the Management Board’s regulations, the Board is allowed to sign contracts with qualified companies but must follow procedures. In this case, the Board did not follow procedures, changed units without an Apartment Meeting or 50% owner consent, and without 75% Board member approval; the content also infringed on the developer’s rights (managing both basements). Thus, the first-instance Court’s decision to declare them void is grounded.
– Regarding ownership of the 3 commercial floors and the wall: Based on Decision No. 461 dated March 4, 2008, of Ha Tay Provincial People’s Committee; Official Dispatch No. 6606 dated December 6, 2010, and No. 7494 dated November 5, 2014, of Hanoi People’s Committee, the project has floors 1 to 8 for service, commerce, and offices. The Company sold and leased these according to their functions. Thus, these floors belong to the developer. The first-instance decision allowing S Company to restore the back door of floor 1 is grounded.
– Regarding the defendant’s request for maintenance funds, building records, fire systems, etc.: During the first-instance process, the defendant did not file a counterclaim, so the Appellate Court has no basis to consider these.
Based on the analysis, the defendant’s appeal is groundless.
However, the first-instance judgment did not clearly define car and motorcycle parking positions, making execution difficult. The Appellate Court is requested to modify the judgment to define these positions based on Clause 2, Article 308 of the Civil Procedure Code.
COURT’S ASSESSMENT:
[1] After studying the documents in the case file, examining them at the trial, and based on the public debate results, the Trial Panel assesses:
[2] On procedure:
[3] The defendant appealed within the legal time limit and paid the appellate court fee advance, so the appeal is valid.
[4] Regarding the absence of interested parties who did not appeal, despite being summoned, they were absent without reason. Based on Article 296 of the Civil Procedure Code, the Court proceeds with the trial as per law.
[5] On content: Considering the defendant’s appeal
[6] Basis for determining ownership of the parking area in the two basements:
[7] S Construction and Urban Development Investment Joint Stock Company is the developer of Mixed-use Building H at 131 Road A, Ward B, District C, Hanoi. The project has 34 floors and 2 basements, with floors 1 to 8 for services/offices. On September 26, 2016, a Management Board was established and recognized by the District Committee. According to regulations, there must be a management company. D Management and Service Business Co., Ltd. was initially performing this. On August 24, 2017, the Board signed with G Company. In February 2019, the Board signed with Y Company.
[8] Plaintiff S Company claims the Board infringed ownership by occupying the basements and walling up the back door of floor 1. The Board’s contracts violated Articles 14 and 25 of Circular No. 02/2016/TT-BXD: No 75% Board consensus; no 50% owner consensus; contract content infringed developer ownership (disposed of the 02 basements).
[9] At the time of project approval and sales (2008-2010), based on the Law on Housing 2005 and Decree 71/2010/ND-CP, Point b, Clause 1, Article 49 states: “Area under private ownership of the developer (kept by the developer, not sold or allocated to apartment prices)”;
[10] Point c, Clause 2, Clause 3, Article 49 of Decree No. 71/2010/ND-CP defines common ownership:
[11] “Parking area (bicycles, disabled vehicles, two-wheeled motor vehicles) built according to standards…
[12] Regarding car parking areas, they must be built according to standards but the developer decides if they are common or private ownership….
[13] Private and common ownership must be clearly stated in the apartment purchase and sale contract.”
[14] Point c, Clause 8, Article 4 of Decision No. 01/2013/QD-UBND of Hanoi: (If car parking costs in the basement are allocated to apartment prices, they are common property; if not, they are private property of the developer.)
[15] Official Dispatch No. 279 of the Ministry of Construction to S Company (BL370): “…if the contract has no agreement on ownership, the developer must provide documents proving costs for the basement and commercial areas were not allocated to apartment prices. If proven, they are private ownership of the developer…”
[16] “Determination is based on project content approved by competent agencies and audited financial reports.”
[17] Official Dispatch No. 2.0018/19/CV/KTTV dated October 23, 2019, from E Audit and Advisory Co., Ltd.:
[18] “1. Construction costs for 2 basements (30,229,191,000 VND) were recorded as fixed assets of S Company and not allocated to apartment prices.
[19] 2. Audited reports show the Company paid VAT, corporate income tax… on parking services in the 2 basements until 2017.
[21] – Land tax for Building H was paid by S Company at 23,850,000 VND/year.”
[22] Based on regulations and documents from the Ministry of Construction and E Company, common property includes parking for bicycles, disabled vehicles, and motorbikes. Car parking in the basement depends on the developer’s decision. As per the contracts, car parking costs were not allocated to apartment prices, thus they are the developer’s private ownership. The first-instance Court’s recognition of S Company’s ownership of car parking in basements 1 and 2 is grounded.
[23] According to as-built drawings, basement 1 has 2,330m2 (26 car spots, 555 motorbike spots). Due to a generator relocation, 2 car spots (No. 12, 13) were used for motorbikes. Thus, basement 1 actually has 24 car spots;
[24] Basement 2 has 2,050m2 (68 car spots, 67 motorbike spots);
[25] On March 19, 2020, the Hanoi Court attempted an on-site inspection, but the defendant summoned outsiders who obstructed the process. The failure was the defendant’s fault.
[26] Based on drawings and detailed explanations from the plaintiff, the Trial Panel determines the positions and areas of car and motorbike parking at the two basements.
[27] Based on TCXDVN 323:2004 “High-rise housing – design standards”:
[28] – Car spot: 25m2/vehicle;
[29] – Motorbike/bike spot: 2.5m2 to 3.0m2/vehicle and 0.9m2/bicycle.
[30] Building H has 228 apartments. Total area for resident motorbikes and bikes required is 1,345.2m2. As-built records show a total of 1,555m2 for motorbikes (more than required for the 228 apartments).
[31] The first-instance Court’s method of calculating car parking area was imprecise; the Appellate Court modifies this to fit actual drawings and positions.
[32] Regarding the request to void contracts with G Company and Y Company:
[33] The Management Board did not follow procedures in Circular No. 02/2016/TT-BXD (no 50% owner consent, no 75% Board consent). Also, signing with Y Company while the contract with G Company was not yet liquidated was illegal. Both contracts currently exist and infringe on the developer’s rights. The first-instance decision to declare them void is grounded.
[34] As parties did not request resolution of consequences for void contracts, the Court does not consider it. They may file a separate lawsuit if needed.
[35] Regarding 3 commercial floors and the wall: Decisions by Ha Tay and Hanoi Committees prove floors 1-8 belong to the developer. Thus, S Company has the right to restore the back door of floor 1.
[36] Maintenance funds and other Board requests: No counterclaim was filed at the first-instance stage, so there is no basis for consideration at the appellate stage.
[37] Voluntary withdrawal of part of the claim (compensation) was correctly terminated by the first-instance Court.
[38] Some citations in the first-instance judgment were incomplete; the Appellate Court will correct them.
[39] The lawyer’s arguments and the Procuracy’s recommendations are grounded.
[40] Court fees: The Management Board and S Company must pay fees as per law.
For the above reasons,
DECISION
Pursuant to Clause 2, Article 308 of the Civil Procedure Code.
Pursuant to Articles 163, 164, 169 of the Civil Code 2015;
Pursuant to the Law on Housing 2005;
Pursuant to Decree 71/2010/ND-CP dated June 23, 2010;
Pursuant to Resolution No. 326/2016/UBTVQH14 dated December 30, 2016, on court fees.
Modify First-instance Civil Judgment No. 40/2019/DSST dated October 31, 2019, of the People’s Court of Ha Dong District, Hanoi City.
Pronouncement:
1. Accept part of the lawsuit request of S Construction and Urban Development Investment Joint Stock Company against the Management Board of Mixed-use Building H regarding recognition of car parking areas at basement 1 and basement 2 of Building H at 131 Road A, Ward B, District C, Hanoi, as belonging to S Construction and Urban Development Investment Joint Stock Company.
– Determine and recognize the car parking area at basement 1 as 600m2; car parking area at basement 2 as 1,700m2 as belonging to S Construction and Urban Development Investment Joint Stock Company.
Based on detailed drawings (attached to the judgment), determine parking positions as follows:
* Basement 1 floor area is 2,330m2:
– Where 600m2 (including traffic lanes) is divided into 24 car spots. Positions are determined from Axis E to Axis F, Axis E to Axis C, Axis 1 to Axis 6 extended (numbered 1-11 and 14-26 in drawings, excluding elevator cores).
– Motorbike area is 1,387.5m2 (including lanes) for 555 spots. Positions from 1/2 length of Axis F to E, Axis F to G extended; Axis D to A extended and Axis 1 to 6 extended (excluding functional areas).
– Generator position is 42m2, Axis A to B, outer side from Axis 1 extended.
Remaining area of basement 1: 2,330m2 – 600m2 – 1,387.5m2 – 42m2 = 300.5m2, which is space for the developer to ensure ventilation.
* Basement 2 floor area is 2,050m2:
– Where 1,700m2 is car parking area (including lanes) for 68 spots. Positions from 3/4 length of Axis F to G, Axis F to A extended, and within Axis 1 to 6 extended (excluding elevator cores and functional areas).
– Motorbike area is 167.5m2 (including lanes) for 67 spots. Positions from 1/4 length of Axis G extended to Axis F plus Axis G extended, within Axis 2 to 5 and 1/4 length Axis 1 to 2 and Axis G to D (excluding functional areas).
– Remaining area of basement 2: 2,050m2 – 1,700m2 – 167.5m2 = 182.5m2 for ventilation.
2. Declare Management Service Contract No. 01/2017/HDDV signed on August 24, 2017, between Mr. Do Thai S1 and G Company, and Service Provision Contract No. 02/2019/HDDV/BQT-YB dated February 1, 2019, between Y Company and the Management Board as null and void.
Parties may file separate lawsuits for consequences of void contracts if they cannot reach an agreement.
3. S Construction and Urban Development Investment Joint Stock Company has the right to dismantle and restore the original state of the back door of floor 1 of Building H.
4. Terminate part of the request for G Company and Mr. Do Thai S1 to compensate for damages.
5. Court fees: The Management Board must pay 300,000 VND for first-instance fees. S Company must pay 300,000 VND for first-instance fees for the rejected part of the claim.
6. Execution of the judgment shall follow the Law on Civil Judgment Execution.
Public appellate trial, effective from the date of pronouncement./.
PRECEDENT CONTENT
“[22] Based on the regulations and documents from the Ministry of Construction and E Audit and Advisory Co., Ltd. mentioned above, it is determined that common property includes parking for bicycles, disabled vehicles, and motorbikes. For car parking areas in the basement, the developer decides if they are common or private ownership. According to the Apartment Purchase and Sale Contract, car parking in the basement was not allocated to apartment prices, thus they are determined as the developer’s private ownership. Therefore, the first-instance Court’s recognition of S Company’s ownership of the car parking area in basement 1 and basement 2 of Mixed-use Building H at 131 Road A, Ward B, District C, Hanoi, as belonging to the developer’s private ownership is grounded.”.
