□ Zhang Shoukun, a trainee reporter of this newspaper

  □ Our reporter Han Dandong

  In March last year, Liu Li (pseudonym), a citizen of Nanchang, Jiangxi, happily moved into his new house, but he later found out that the public parking spaces in front of the shops at the entrance of the community were surrounded by stone piers, and the entrance was moved. Iron frame and chain locked.

  No public parking spaces?

With doubts, Liu Li and several owners asked the developer and learned that these free public parking spaces have been rented to a restaurant by the developer, and the empty space is guarded every meal time. If you don't come to this restaurant Eating consumers are not allowed to park here, nor are the owners.

  "Judging from the sand table and the introduction of the sales staff at the time, this is a piece of public land, and developers and businesses have no right to use it without permission." After Liu Li and other owners complained to the relevant departments, the free parking space was finally returned to the owner. use.

  In recent years, developers have frequently changed the planned use without authorization. Even after the community is built, there are cases where the use of public land is changed by the property without authorization.

Owners like Liu Li are lucky enough to successfully defend their rights, and some cannot solve the problem for a long time.

  So, it happens frequently that developers and property owners change the use of public areas of the community without authorization. How can we protect the right of owners to use public land normally?

"Rule of Law Daily" reporters conducted an interview and investigation.

  The developer changes the plan without authorization

  The green landscape belt is occupied

  "When choosing a house, there was a green landscape belt in front of the door, but when the house was handed over, a fence was built, which became someone else's yard." Mr. Lin, a citizen of Fuzhou, Fujian, bought a house in Yongtai County. According to the developer's offer at the time The sand table and planning map and the introduction of the on-site sales manager, the front of the house he purchased is a planned green landscape belt with an area of ​​about 500 square meters.

  However, when the house was handed over, a fence was erected in front of Mr. Lin's house. Looking down from the second floor of the house, Mr. Lin saw that the location of the green landscape belt was divided into four blocks, which became the other four houses. yard.

  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 Natural Resources and Planning Bureau has verified the situation and formally notified the developer and property rectification.

  Coincidentally.

In June this year, people from Zhenglan Banner, Xilin Gol League, Inner Mongolia Autonomous Region dialed the 12345 government service convenience hotline to report that the developer of Juli Times Garden Community is planning to build a building in the parking space, and the community people do not want to change the original planned use. class problem.

  After verification, the developer of the community has encircled public land.

To this end, the Zhenglan Banner government attaches great importance to it, and led by the leaders in charge of the banner government, set up a special class in conjunction with the Natural Resources Bureau and the Comprehensive Law Enforcement Bureau to solve the problem of "illegal construction", immediately issued a rectification notice, and ordered the fence to be removed immediately. Restore the original appearance of the resident's parking space and arrange for staff to supervise the whole process.

Through the efforts of various departments, it took only 5 days to restore the original appearance of the parking spaces in the community.

  During the survey, the reporter found that when consumers are viewing houses in new real estate, general off-plan houses can only refer to sand table diagrams, VR materials, etc., and the basic conditions of the house will be clearly marked, but some are still in corners or inconspicuous places. It says "Subject to the time of handover".

  In practice, does the developer have the right to change the planning plan agreed with the owner?

  Jiao Yanpeng, a professor at East China University of Political Science and Law, told reporters that it is generally believed that the civil law significance of the above-mentioned sand table, graphic materials, and VR images is an invitation to offer. The invitation to offer is issued based on the principle of good faith.

If there is a discrepancy between the contract invitation and the actual content, a clear reminder should be given before the contract is concluded, otherwise, civil law responsibilities will be borne.

  "If the developer unilaterally changes the agreed use of the public space for his own self-interest, it will constitute a breach of contract. The developer will be responsible for restoring the original state and paying liquidated damages to the owner. The owner can choose to communicate and negotiate with the developer and file a lawsuit with the court. Litigation and other means to protect the rights and interests of the community and itself. As for whether to check out, unless there is a clear agreement in the contract, it is difficult to determine that the developer constitutes a fundamental breach of contract.” Jiao Yanpeng said.

  public parking lot

  Renting out properties for profit

  Quyuan Fenghe Community is located in Jizhou District, Tianjin City. It has been handed over for many years, but in recent years, the congestion of the community has become increasingly serious.

  The reporter drove to the community and found that many sections of the road could not be wrong at all, and only one side could back up and let the other side go first.

"If both sides are unwilling to give in, congestion will occur," said a resident of the community.

  During the interview, a number of residents complained to the reporter: "The streets in the community were originally quite wide, and it was easy to drive and walk. Now there are parking spaces everywhere. There is no space to walk, and you have to stay close to the side of the road, which is quite dangerous."

  The reporter saw on the north side of Building 26 in the community that the original two-way lane was marked with a parking space on the south side of the road, and now it has become a one-way street, and the yellow line in the middle of the road as a two-way street is still clearly visible.

The reporter noticed that there are parking spaces on the north side of the road in the planning. Perhaps because of the shortage of parking spaces, the road next to the building on the south side was also designated as a parking space.

  There is a courier collection point in Building 26, and people come here to pick up couriers every day.

"If you come to pick up by car and catch up with the heavy traffic of the commuter bus, the road will be blocked immediately, causing a lot of inconvenience to the residents." said an owner of the community.

  Not only that, the reporter interviewed the owner and learned that there are many green belts in the Fenghe Community of Quyuan that have been covered with hollow floor tiles by the property, and then designated parking spaces for renting out, 1,200 yuan per year, which is a lot.

  The staff of the Fenghe Neighborhood Committee of Quyuan told reporters that he had repeatedly received complaints from residents through the livelihood hotline that the traffic lanes were designated as parking spaces, and also reported these issues to the property management company.

However, the property management company explained that the number of vehicles in the community has gradually increased, and the phenomenon of random parking has occurred from time to time. Orderly parking can be achieved by drawing more parking spaces.

  The original public land has become a parking lot, and it is even rented out for profit. Does the community property have this power?

  Jiao Yanpeng said: "The property has no right to change the use of public places. Unauthorized change of use will violate the relevant provisions of the property rights system of the Civil Code, and the owners can protect their rights through civil litigation."

  Article 278 Paragraph 8 of the Civil Code stipulates that the following matters shall be jointly decided by the owners: changing the purpose of the common part or using the common part to conduct business activities; Owners with more than two-thirds of the area of ​​the exclusive part and more than two-thirds of the number of people participate in the voting.

Decisions on the matters specified in Items 6 to 8 of the preceding paragraph shall be subject to the consent of the owners who participate in the voting of the exclusive part of the area accounting for more than three-quarters of the area and the owners who participate in the voting accounts for more than three-quarters of the number of people.

  Zhao Zhonghua, director of the property management and legal affairs department of Beijing Yinghe Law Firm, also believes that the property has no right to change the use of public places. If the community wants to change the planned use of the common part, it should first be jointly decided by all the owners, and then apply to the relevant departments.

  The reporter's investigation found that not only did some properties change the use of public land, but also some owners would encroach on public land, and illegally build and occupy privately.

  Mr. Zhao, a resident in Tianjin, told reporters that the first floor of his community is a public green space, but some owners who bought the first floor circled the front of their buildings to form a small courtyard, and hardened them.

Another owner bought an underground parking space only on the side, and then built a wall directly along the line of the parking space, and installed a garage retractable door, thus forming a closed space, but the owner occupies the area close to the parking lot. Two places along the wall, enclosing the public area in its parking space.

  Jiao Yanpeng said that if such a situation is encountered, the owner of the community can request the property to manage the property accordingly. If the property fails to perform its responsibilities, the owner can file a civil lawsuit against the property management agency.

  Jiao Yanpeng suggested that when buying a house, you should clearly agree on the relevant terms of how to use public places, and establish a separate legal liability clause. The above content should be included in the house sales contract in the form of mandatory terms.

At the same time, it is suggested that the supervision department should increase the punishment. The punishment object can be either the property management agency that neglects to perform its responsibilities, or the relevant subjects or other owners who encroach on public land or change the use of public land.

  Increase supervision and punishment

  Create a good governance atmosphere

  If the developer or property occupies public land, how should the owner protect his rights?

  Wang Shude, a partner of Beijing Xinnuo Law Firm, said that if it belongs to public land, and there are no planned parking spaces or other facilities on these grounds, no matter who occupies it, the buyer has the right to ask the occupant to demolish and restore it. This can be done through civil lawsuits or reports of illegal construction.

  In this regard, Zhao Zhonghua believes that the first is to implement the responsibility of the property management company, and the property management company has the obligation to discourage acts that violate the community management regulations such as encroaching on public areas and changing the use of public areas; The owners' committee shall actively exercise the rights of owners on behalf of all owners; the third is to unblock the cooperation mechanism between the community and the community, law enforcement agencies and other grassroots governance bodies, increase the intensity of inspection and punishment, and create a good governance atmosphere.

  "Consumers should raise their awareness of rights protection, preserve the advertisements, materials and other evidence of the developer's publicity, and if necessary, they can take litigation to protect their rights and interests." Zhao Zhonghua said that the owner found that the developer or the property company occupied the public area, or changed the When using the public area, you can apply to the Planning and Natural Resources Commission for the original plan of the community and compare it with the actual situation of the community. You can protect the rights and interests of the community and yourself by calling the municipal hotline, communicating and negotiating with developers or property companies, and filing lawsuits in the court.

  Yang Qinfa, director of the Institute of Real Estate Policy and Law at East China University of Political Science and Law, believes that owners can request the developer or the property to restore the status quo.

If the developer or the property refuses to restore the original state, the owner may file a complaint with the relevant administrative department, or the owners committee may file an infringement lawsuit on behalf of the owner.

  "It is true that there are no planned parking spaces in the public area. It is relatively easy to resolve whether it is through civil lawsuits or administrative complaints." Wang Shude said, but some special cases are more difficult to solve, such as parking spaces occupying green spaces, civil air defense spaces, and underground parking spaces whose property rights have not yet been clarified. Attribution is very complicated to deal with, and it is very controversial in judicial practice.

  Wang Shude said that the reason for these contradictions is that the law does not have very clear regulations on the ownership of these parking spaces, and the administrative organs are prone to problems that they cannot rely on.

To solve these problems, we cannot rely on intensifying punishment. Instead, we should confirm the ownership of rights at the legislative level and improve the real estate registration system, so as to minimize disputes.