Let the market mechanism decide the dispute at the Artemis parking garage

What do lawyers say about the dispute over the parking garage at Artemis?

Discussing the controversy that occurred at the Artemis apartment building (No. 3 Le Trong Tan, Thanh Xuan District, Hanoi), Lawyer Tran Hai Duc - Tran Hai Duc Law Office, Ho Chi Minh City Bar Association said that disputes between residents and investors related to the basement parking in buildings are very common, not just the basement of the Artemis apartment building. According to this lawyer, to clearly distinguish right from wrong, it is necessary to determine who owns the basement, and have the parties complied with the provisions of the law?

After studying the incident at the Artemis apartment building, lawyer Tran Hai Duc analyzed that to determine whether the parking garage belongs to the investor or not, it is necessary to base on Article 101 of the 2014 Housing Law.

Accordingly, Article 101 of the Housing Law stipulates that parking spaces for bicycles, vehicles for the disabled, two-wheeled motor vehicles, three-wheeled motor vehicles for owners and users of apartment buildings are under the common ownership and common use of the apartment building owners. Parking spaces for cars for owners are under the management of the investor.

Lawyer Duc also pointed out that Articles 6 and 7 of the Regulations issued with Circular 02/2016/TT-BXD stipulate that the area under private ownership and the area under common ownership of the owners must be clearly stated in the apartment sale and purchase contract.

Therefore, determining ownership of the basement in an apartment building requires determining in the apartment sale and purchase contract whether the ownership of the basement is the private property of the investor or the common property of the apartment owners.

The tension between residents and investors of the Artemis building over the parking basement is attracting much attention.

For Artemis apartment building, the Apartment Sale Contract between residents and the investor has clearly stipulated this case. Specifically, Article 11 and Part B of Appendix 4 of the Apartment Sale Contract stipulates the area privately owned by the Investor including: "The area of ​​basement floors B1, B2, B3 (except for the basement areas arranged by the Investor as parking spaces for bicycles, vehicles for the disabled, two-wheeled motor vehicles, three-wheeled motor vehicles, if any)".

“Therefore, based on the above regulations, it is possible to determine that the ownership of basements B2 and B3 belongs to the private ownership of the investor (except for 400m2 for bicycle parking, vehicles for the disabled... and technical areas). The investor has the right to decide on service prices in accordance with the provisions of law, specifically Decision 44 on prices for bicycle, motorbike and car parking services in Hanoi,” said lawyer Tran Hai Duc.

When asked about the views of residents at Artemis apartment building, that is, the investor is applying a parking fee that exceeds the ceiling according to Decision 44 and the investor is doing wrong compared to the instructions in Document 2233 dated November 16, 2023 of Thanh Xuan District People's Committee (the current collection rate of the investor is 2,300,000 VND/vehicle/month, the document requests the investor to base on the instructions to collect a maximum of 1,800,000 VND/vehicle/month), the lawyer commented: "I have referred to Document 2233 of Thanh Xuan District People's Committee sent to MHL Joint Stock Company and affirmed that this is a document of guidance for investors, not a legal document".

Let the market mechanism decide the price of services.

The lawyer also added that MHL Company is a non-state enterprise, a private enterprise, subject to the Enterprise Law 2020, so the investor has the right to do business in this area without having to ask for the opinion of apartment owners or owners of other areas.

Lawyer Duc cited that the price of car parking service at the Artemis parking garage can reach the maximum level, in the following specific case: The investor equips a smart car parking system that meets the criteria in sub-section 2.2.1, section I of the Appendix attached to Decision 44, then the car parking service price will be determined by the price of car parking service with up to 9 seats on routes and streets in districts within Ring Road 1 and above Ring Road 1, meaning a maximum of VND 3,000,000/car/month.

However, if the Artemis parking garage is just a regular parking lot, not equipped with a smart parking system, then based on sub-section 2.2.1, section I of the Appendix attached to Decision 44 (in the second bullet point), the investor is allowed to apply the monthly parking service price for cars with up to 9 seats equal to the parking service price for cars with up to 9 seats on routes and streets in districts within and above Ring Road 2, meaning a maximum of VND 2,300,000/car/month.

In document No. 2233, Thanh Xuan District People's Committee determined the specific price for the location to be the routes and streets in the districts located within Ring Road 3 and above Ring Road 3 (Section I; Table 2.2.1; number 5 in the table), meaning the maximum car parking price is 1,800,000 VND/car/month. At the same time, Thanh Xuan District People's Committee requested MHL Company to apply the price for vehicle parking in the basement of Artemis building according to this regulation.

“As mentioned above, the Artemis building is a mixed-use building of apartments, shopping malls and offices. Therefore, the parking fee applied to the Artemis building will not depend on the location of the building but will be applied to the roads and streets in the districts within and above the Ring Road 2, which means a maximum of VND 2,300,000/car/month. Not to mention the “smart parking system” that the investor is applying in the Artemis basement. Thus, the above proposal of the Thanh Xuan District People's Committee shows signs of not being in accordance with the provisions of Decision 44,” lawyer Duc analyzed.

Furthermore, lawyer Duc emphasized that in the context of the increasing number of cars and the serious shortage of parking spaces, it is inevitable that service providers invest in technology to improve service quality, so increasing service prices is inevitable, as long as the price does not exceed the maximum level prescribed by the State.

Only then will we create motivation to develop and provide high quality services to users. When users are provided with high quality services, they must also pay a corresponding price and vice versa. If they do not agree, they can find other suitable service providers.

Guidance document of Thanh Xuan District People's Committee for MHL Company on determining parking prices in the building's basement.

Referring to a series of controversies that have recently erupted over parking fees in apartment buildings, lawyer Duc said: "Not only at the Artemis building, residents of many apartment buildings mistakenly believe that parking services in the building are within the scope of building management and operation services. Even local authorities are not clear about this.

In fact, the State administrative management of vehicle parking activities belongs to the transport sector. The Department of Transport, the Department of Finance and the Department of Labor, War Invalids and Social Affairs are responsible for advising the Hanoi People's Committee to issue Decision 44. If the local government is still confused, it is necessary to seek advice from the competent State administrative management authority .

Discussing the issue of market mechanism in the issue of increasing parking prices in apartment basements today, architect Tran Huy Anh - Standing member of the Hanoi Architects Association said: "The application of parking prices should be decided by the market mechanism. The increase in service prices and the beneficiaries of the service have the right to negotiate with each other, based on the collection level that must be commensurate with the investment, costs, and service provision".

Regarding the issue of whether or not the Artemis investor charges fees that exceed the ceiling, Mr. Anh said that high and low prices depend on the agreement between the service provider and the service user. Regarding the parking price at the Artemis apartment building, the investor certainly has made appropriate calculations, but more importantly, the investor and the residents need to negotiate with each other. If the residents do not agree with the investor's fee, they may not use the service.

According to Mr. Anh: “This is a transaction in the market mechanism. The law of the market economy will determine this price. The person requesting the service still has the right to choose the supplier at a price that suits their budget. If there is no other choice, the owner of the property will decide the price.”

Source: https://www.nguoiduatin.vn/de-co-che-thi-truong-quyet-dinh-tranh-chap-tai-ham-gui-xe-artemis-a639043.html