How can property owners protect their rights when developers make unauthorized changes to community planning
There are many disputes caused by developers changing community planning without authorization, and the situations are also different!
In summary, there are mainly the following types:
1、 Reduce green or landscape area
In big cities like Shanghai, the greening and landscape of residential areas are becoming increasingly important considerations for many homebuyers, which naturally leads to more and more developers focusing on greening and landscape. Usually, developers will depict a plan of "green community" and "landscape community" on building brochures, sand tables, and models. However, driven by commercial interests, in actual development, the original green space will be converted into houses, the original landscape will be converted into property buildings, kindergartens, etc., resulting in a decrease in the original greening rate and an increase in the plot ratio.
Because developers rarely specify and agree on commitments such as greening and landscape in contracts, when faced with such situations, the first step is to determine whether the developer's behavior is in breach of contract. According to the relevant judicial interpretations of the Supreme People's Court, sales advertisements and promotional materials for commercial housing are invitations to offer. However, if the developer's explanations and promises regarding the houses and related facilities within the scope of the commercial housing development plan are specifically determined and have a significant impact on the conclusion of the commercial housing sales contract and the determination of the housing price, they should be regarded as an offer. In other words, even if the statement and promise are not included in the contract for the sale of commercial housing, they should still be considered as part of the contract. If the developer violates them, they should bear the liability for breach of contract.
However, homeowners should be aware that there are some restrictive conditions in judicial interpretations. Building brochures, sand tables, and models, as promotional materials for commercial housing, can only be considered as part of the contract and have binding force on the developer if some of their introductions and explanations are specific and definite, and also serve as an important selling point for the developer to sell the property (i.e. have a significant impact on contract formation and housing price determination).
Therefore, to avoid advertising traps, lawyers suggest:
1. Owners should keep all promotional brochures and advertising materials, and if necessary, take photos or videos of the building model for preservation.
2. Owners should try to require the developer to include the introduction of greenery, landscape, etc. in the building brochure and advertisement in the contract, or at least require it to be clear.
2、 Unable to keep up with the supporting facilities or adjust community functions without authorization
A complete community function is also an important consideration for homeowners when buying a house, especially for some communities developed in remote areas. When the surrounding supporting facilities can be improved will directly affect homeowners' choices. Some developers advertise their future supporting plans very well in order to attract buyers when selling houses, but these supporting facilities are often not completed in a timely manner, and some are even impossible to achieve at all.
There is also a situation where developers make certain adjustments to community functions based on their own development situation, such as converting the original clubhouse into property management buildings, converting the original sports field into a parking lot, and so on.
After such a situation arises, developers often refuse to take legal responsibility on the grounds that it does not affect the quality or functionality of the purchased property. Because these contents are usually not stipulated in the contract, the owner will face an awkward situation of no agreement to follow. However, although there is no contractual agreement, there are laws that can provide protection.
According to the provisions of the Contract Law, if one party enters into a contract against the true will of the other party by means of fraud, coercion, or taking advantage of their vulnerability, the injured party has the right to request the people's court or arbitration institution to modify or revoke the contract. That is to say, if the developer, in order to attract buyers to purchase the property, fails to disclose the true situation of the project planning, or even deliberately conceals some planning that is unfavorable to the sales of the property, causing misunderstandings among the owners and purchasing the property, it is considered fraudulent behavior. The owners have the right to request the court or arbitration institution to change or revoke the purchase contract, and demand that the developer bear corresponding compensation responsibilities. But when the owner requests the court or arbitration institution to determine that the developer's behavior is fraudulent, they must provide sufficient evidence.
To avoid not being able to provide sufficient evidence afterwards, lawyers remind homeowners to keep all evidence, such as brochures, advertisements released by the developer, etc., when viewing the property. For any vague or exaggerated introductions or promotions made by the developer, they must provide clear written explanations or commitments. Otherwise, homeowners would rather not believe it.
3、 Change the total construction area
The indicator that reflects the total building area of a community is the plot ratio. The larger the plot ratio, the more building area there is per unit area, and the more population it can accommodate. Excessive plot ratio can have adverse effects on the functionality of the community and may also lower the living environment level. Some developers, in order to increase profits, disregard the original planning and design by adding houses, resulting in an increase in the total construction area and plot ratio of the community.
Generally speaking, according to the provisions and requirements of the Urban Real Estate Management Law and the Measures for the Pre sale Management of Commercial Housing, developers should have obtained a construction project planning permit before pre-sale of houses, and the planning department has already approved the planning scheme, architectural design scheme, etc. of the project. If the developer changes the planning and design without authorization, their behavior has obvious illegality and naturally constitutes a breach of contract. Of course, it is not ruled out that developers may legally make changes to the plan through the approval of relevant departments. However, according to Article 24 of the "Management Measures for the Sale of Commercial Housing" issued by the Ministry of Construction and the notice on rectifying the national real estate order issued by seven national ministries and commissions, even if the developer allows the change plan to pass the approval of relevant departments without the owner's hearing, it still constitutes a breach of contract.
To prevent property owners from losing in this situation, lawyers suggest:
1. Owners first require the developer to present the construction project planning permit when viewing the property, and according to the "Shanghai Residential Property Management Regulations", they require the developer to include and list the construction project layout plan and supporting facilities and equipment owned by all owners in the pre-sale contract as stated in the construction project planning permit document.
2. If the developer holds a hearing on planning changes during the development process, or solicits written opinions from the owners on changes to the plan, the owners should adhere to principles and insist on their own opinions.
