Last March, Liu Li (pseudonym), a citizen of Nanchang, Jiangxi Province, happily moved into his new house, but he then found that the public parking space in front of the shop at the entrance of the community was placed in a circle of stone piers, and the entrance was locked by moving iron frames and iron chains.
No parking allowed in public parking spaces? With questions, Liu Li and several owners found the developer and asked, and learned that these free public parking spaces had been rented to a restaurant by the developer, and there were people on duty at every meal time and space. If consumers who did not come to this restaurant for dinner were not allowed to park here, the owners would not be able to do so.
"From the introduction of the sand table and the sales staff at that time, this is a public land, and developers and merchants have no right to use it privately." After Liu Li and other owners complained to the relevant departments, the free parking space was finally given to the owners for use.
In recent years, developers have changed their planned uses without authorization. Even after the community is built, there are cases where public land uses are arbitrarily modified by the property. Like Liu Li, it is already lucky that owners can protect their rights smoothly, and some of them cannot solve the problem for a long time.
So, developers and properties have repeatedly changed the use of public sites in the community without authorization. How can owners protect their right to use public land normally? A reporter from " Rule of Law Daily " conducted an interview and investigation.
comic: Li Xiaojun
The developer changed the plan without authorization. The green landscape belt was occupied
"Originally, when choosing a house, there was a green landscape belt in front of the door, but when the house was handed over, a wall was built, which became someone else's yard." Mr. Lin, a citizen of Fuzhou, Fujian, purchased a house on Yongtai County . According to the sand table and planning map provided by the developer at that time and the on-site sales manager, in front of the house he purchased was a planned green landscape belt with an area of about 500 square meters.
But when the house was handed over, a wall was erected in front of Mr. Lin's house. Looking down from the second floor of the house, Mr. Lin saw that the location that was supposed to be the green landscape belt was separated into 4 pieces, making it the yard of the other four houses.
Mr. Lin believed that the developer had changed the plan without authorization, so he communicated with the developer many times, but no consensus was reached. After reporting the situation through the 12345 platform, the county's Natural Resources and Planning Bureau has verified the situation and formally informed the developers and property for rectification.
is unique. In June this year, the people of Zhenglan Banner, Xilingol League, Inner Mongolia Autonomous Region called the 12345 government service convenience hotline to report that the developer of Juli Times Garden Community is preparing to build a building in a parking space. The people of the community do not want to change the original planned purpose, so relevant functional departments are asked to verify and resolve such problems.
After verification, the developer of this community has been occupying public land. To this end, the Zhenglan Banner government attached great importance to it. The head of the banner government took the lead and jointly with the Natural Resources Bureau and the Comprehensive Law Enforcement Bureau to set up a special team to implement the solution to the problem of "private construction and random construction". It immediately issued a rectification notice, ordering the fence to be demolished immediately, restore the original appearance of the residents' parking spaces and arrange staff to supervise the entire process. Through the efforts of various departments, the original appearance of the community parking space was restored in just 5 days.
During the investigation, the reporter found that when consumers view houses in new properties, general premises can only refer to sand table pictures, VR information, etc., which will clearly mark the basic situation of the house, but some in the corners or inconspicuous places will also write the words "When the house is handed over" and so on.
In practice, does the developer have the right to change the planning plan agreed upon with the owner?
East China University of Political Science and Law professor Jiao Yanpeng told reporters that it is generally believed that the civil law meaning of the above-mentioned sand tables, graphic materials, and VR images is an invitation to offer. The invitation to offer is a preparatory act of the parties to enter into a contract. Although it does not constitute the content of the contract, the issuer of the invitation to offer should issue an invitation to offer based on the principle of honesty and trustworthiness of . If there is a difference between the invitation to offer and the actual content, a clear reminder should be made before the contract is concluded, otherwise you will bear the responsibility under civil law.
"If the developer unilaterally changes the purpose of the public place that has been agreed upon for his own personal gain, it will constitute a breach of contract. The developer will bear the responsibility of restoring the original state and paying liquidated damages to the owner. The owner can choose to communicate and negotiate with the developer, file a lawsuit with the court, etc. to safeguard the rights and interests of the community and itself. As for whether he can check out, unless there is a clear agreement in the contract, it is difficult to determine that the developer constitutes a fundamental breach of by ." Jiao Yanpeng said.
Public land becomes a parking lot. Property rental makes profits for external profits
Quyuan Fenghe Community is located in Jizhou District, Tianjin. It has been handed over for many years, but the congestion in the community has become increasingly serious in recent years.
The reporter drove to the community and found that many sections of the road were not wrong at all, so one side could only retreat and let the other side go first. "If you encounter something that neither party is willing to give in, congestion will occur," said a resident of the community.
During the interview, several residents complained to the reporter: "The community was originally quite wide, and it was convenient to drive and walk. Now it is marked as parking spaces everywhere. It is very difficult to get wrong when coming in both directions. Once a car passes by, pedestrians don't even have room to walk, and they have to stick close to the side of the road, which is quite dangerous."
The reporter saw on the north side of Building 26 of the community that the original two-way lane has been marked on the parking spaces on the south side of the road, and now it has become a one-way road, and the yellow line in the middle of the road that distinguishes the double road is still clearly visible. The reporter noticed that there are parking spaces on the north side of the planned road. Perhaps because of the tight parking spaces, the road next to the building on the south side has also been marked as parking spaces. There is a express delivery collection point in Building
26, and there are endless people coming here to pick up express delivery every day. "If you drive here to pick it up, when the traffic flows to and from get off work are high, the road will be blocked immediately, causing a lot of inconvenience to residents," said an owner of the community.
Not only that, the reporter interviewed the owner and learned that there were many green belts in the Fenghe community of Quyuan, with hollowed-out floor tiles laid by the property, and then parking spaces were marked for rent for outside, with 1,200 yuan a year, which is a large quantity.
Staff from Quyuan Fenghe Neighborhood Committee told reporters that he had also received many reports from residents that the driving lane was marked as parking spaces through the people's livelihood hotline, and he had reported these issues to the property company. However, the property company explained that the number of vehicles in the community is gradually increasing, and random parking occurs from time to time. Orderly parking can be achieved through multiple parking spaces.
The original public land became a parking lot, and even rented out for profit. Does the community property have this power?
Jiao Yanpeng said: "Properties have no right to change the purpose of public places. Changing the purpose without authorization will violate the relevant provisions of the property rights system of the Civil Code. Owners may protect their rights through civil litigation."
Civil Code Article 278, paragraph 8, provisions on "matters and voting jointly by owners", the following matters shall be decided by the owners: change the purpose of the common part or use the common part to engage in business activities; the owners shall jointly decide on matters by owners whose exclusive part accounts for more than two-thirds of the area and more than two-thirds of the number of people shall participate in the voting. Decisions on matters stipulated in items 6 to 8 of the preceding paragraph shall be approved by the owners whose exclusive part accounts for more than three-quarters of the area of the exclusive part and more than three-quarters of the number of participants in the voting.
Zhao Zhonghua, director of the Property Management Legal Affairs Department of Beijing Yinghe Law Firm, also believes that the property has no right to change the purpose of public places. If the community wants to change the planned purpose of the common part, it must first be decided by all owners and then apply to the relevant departments.
reporters found that not only the property has changed the purpose of public land, but some owners also have embezzled public land and built illegally.
Mr. Zhao, a resident of Tianjin, told reporters that the first floor of his community is full of public green spaces, but some owners who bought the first floor circled the front of their building to form a small courtyard and hardened it.Another owner bought a parking space that was only on the side of the underground, then built a wall directly along the line of the parking space, and installed a retractable garage door, which formed an enclosed space. However, the owner occupied two places near the wall and closed the public place in his parking space.
Jiao Yanpeng said that if this happens, the community owners can ask the property to conduct corresponding management. If the property fails to perform its duties, the owners can file a civil lawsuit against the property management agency.
Jiao Yanpeng suggested that when buying a house, the relevant terms should be clearly agreed on how to use public places, and a separate legal liability clause should be established. The above content should be loaded into house purchase and sale contract in the form of mandatory terms. At the same time, it is recommended that the regulatory authorities increase the penalties. The targets of the punishment can be either property management institutions that fail to perform their duties, or relevant entities or other owners who encroach on public land or change the use of public land.
Increase supervision and punishment efforts to create a good governance atmosphere
If developers or properties occupy public land, how should owners protect their rights?
Wang Shude, partner of Beijing Xinnuo Law Firm, said that if it is public land and there are no planned parking spaces or other facilities on these grounds, no matter who occupies them, the buyer has the right to ask the occupier to demolish and restore them. For rights protection methods, it can be completed through civil litigation or reporting of illegal buildings.
In this regard, Zhao Zhonghua believes that, first, we must implement the responsibilities of the property company and have the obligation to dissuade property companies from acts that violate community management regulations such as encroaching on public areas and changing the use of public areas; second, owners can actively establish owners' committee , and the owners' committee will actively exercise the rights of owners on behalf of all owners; third, we must smooth the cooperation mechanism between the community and grassroots governance entities such as the community and law enforcement departments, increase the intensity of inspections and punishments, and create a good governance atmosphere.
"Consumers should raise their awareness of rights protection and preserve the evidence of advertisements, information and other evidence when developers do publicity. If necessary, they can adopt litigation methods to protect their rights and interests." Zhao Zhonghua said that when the owner finds that the developer or property company occupies public areas, or changes the purpose of the public areas, they can apply to the Planning and Natural Resources Commission for the original planning map of the community to compare with the current actual situation of the community. Once it is found that the property company or developer has indeed infringed on the public areas or changed the purpose of the public areas, the owner can safeguard the rights and interests of the community and themselves by calling the municipal hotline, communicating and negotiating with the developer or property company, and filing lawsuits with the court.
Director of the Institute of Real Estate Policy and Law of East China University of Political Science and Law Yang Qinfa believes that owners can make requests to the developer or property to restore the original state on their own. If the developer or property refuses to restore the original state, the owner can file a complaint with the relevant administrative department, or the owners' committee can file an infringement lawsuit on behalf of the owner.
"There is indeed no planned parking space in public areas, and it is relatively easy to resolve whether through civil litigation or administrative complaints." Wang Shude said that some special circumstances are more difficult to solve, such as parking spaces that occupy greening, civil defense space, and underground parking spaces that have not yet been clarified. The ownership of rights and interests is very complicated and controversial in judicial practice.
Wang Shude said that the reason for these contradictions is that the law does not have very clear provisions on the ownership of these parking spaces, and administrative agencies are prone to problems that cannot be followed. Solving these problems cannot be achieved by increasing the intensity of punishment, but should confirm the ownership of rights at the legislative level, and at the same time improve the real estate registration system, so as to minimize disputes.
