Is there any law that requires several meters in front of the window on the first floor of the community to be protected?

The law does not stipulate that the right to use the window on the first floor is within a few meters of protection or how far it belongs to who. In some local cities, municipal or urban planning departments have formulated corresponding regulations, some of which are set at four meters and some at three meters. In fact, this operation method is feasible, but it lacks the implementation basis. In real life, such disputes often occur, and all localities adopt a pragmatic attitude and relevant legal rights protection provisions to solve and deal with them, and the basis for their use is also different:

First, use legal basis to deal with it.

(1) According to Article 73 of the Property Law, the roads within the building division are owned by the owners, except those belonging to urban roads. The green space in the building division belongs to the owner, except the urban public green space or the express individual. Other public places, public facilities and property services within the building division are owned by the owner.

(2) According to Article 83 of the General Principles of Civil Law, the neighboring parties of real estate should correctly handle the neighboring relations in terms of water interception, drainage, transportation, ventilation and lighting in the spirit of facilitating production, life, solidarity and mutual assistance, and fairness and reasonableness. If it causes obstruction or loss to the neighboring party, it shall stop the infringement, remove the obstruction and compensate for the loss.

(3) According to Article 2 of the Supreme People's Court's Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Disputes over Differentiated Ownership of Buildings, houses that meet the following conditions, as well as specific spaces such as parking spaces and sentry boxes, shall be recognized as proprietary parts as mentioned in Chapter VI of the Property Law:

(1) is structurally independent and can be clearly distinguished;

(two) independent use, can be used exclusively;

(three) can be registered as a specific owner of the ownership object.

The terrace that belongs to a specific house in the planning and has been included in the specific house sales contract as planned when the construction unit sells it shall be recognized as an integral part of the exclusive part mentioned in Chapter VI of the Property Law.

The house mentioned in the first paragraph of this article includes the whole building.

Second, according to the principles of fairness, reality and public order and good customs.

The use and utilization of land near the front of the building has the highest correlation with the interests of the first floor, and the impact and loss are also the greatest. The right to control the use of its reasonable scope is determined from the consideration of "proximity" and "priority". For bungalows, the owner's use area is determined according to the local planning area, and the building planning area belongs to the owner. However, considering the relevance and interest influence of the first floor and "convenient life, solidarity and mutual assistance, fairness and reasonableness"

Who does the green space in front of the community window belong to? Stop arguing, the answer is here!

Guide: In real life, developers or sellers often agree with buyers through house sales contracts that the green space in the residential building division (or the green space in front of the bottom commercial house) belongs to the bottom owners for exclusive use. However, according to the provisions of the Property Law, in order to make green space exclusive to individuals, relevant conditions need to be met. This paper analyzes laws, cases and related viewpoints for readers' reference.

legal ground

1, Property Law of People's Republic of China (PRC)

Article 73 Roads within a building division belong to the owner, except those belonging to urban roads. The green space in the building division belongs to the owner, except the urban public green space or the express individual. Other public places, public facilities and property services within the building division are owned by the owner.

2. the Supreme People's Court's interpretation of some issues concerning the specific application of law in the trial of housing ownership disputes.

Article 2 Specific spaces such as houses, parking spaces and booths within a building division shall be deemed as exclusive parts as mentioned in Chapter VI of the Property Law if they meet the following conditions:

(1) is structurally independent and can be clearly distinguished;

(two) independent use, can be used exclusively;

(three) can be registered as a specific owner of the ownership object.

The terrace that belongs to a specific house in the planning and has been included in the specific house sales contract as planned when the construction unit sells it shall be recognized as an integral part of the exclusive part mentioned in Chapter VI of the Property Law.

The house mentioned in the first paragraph of this article includes the whole building.

Related case

1. The ownership of the house purchased by the owner adjacent to the courtyard green space must be determined according to the Commercial House Purchase and Sale Agreement and the Property Right Registration Form formally signed by the buyers and sellers of the house-Nanjing Branch of Qingdao Zhongnan Property Management Co., Ltd. v. Xu Tiantai and Lu Suxia.

The gist of this case: 1. After the owner signed a property management service agreement with the property management company in his residential area, he established a property management service contract relationship with the property management company. As a contracting party providing property management services, the property management company has the obligation to conduct property management in accordance with the contract, requiring the owners to abide by the owners' convention and the property management regulations of residential areas, and has the right to correct the acts violating the owners' convention and the property management regulations, maintain the normal property management order of residential areas, and safeguard the interests of all owners of residential areas. The property management company, as a party to the contract, has the right to bring a lawsuit according to law when the owner fails to correct the violation of the owners' convention and property management regulations in accordance with the rectification requirements.

2. As for the ownership of the courtyard green space adjacent to the house purchased by the owner, it is not only based on the oral promise of the sales staff of the real estate developer to the owner that "the house on the first floor will be sent to the garden" and the fact that the courtyard green space is actually occupied and used by the owner, that is, it is determined that the owner enjoys the exclusive right to use the courtyard green space. As a real estate, the ownership of courtyard green space must be determined according to the commercial housing sale agreement and property right registration formally signed by buyers and sellers.

3. The owner shall not violate the owners' convention and property management regulations, and destroy or transform the courtyard green space adjacent to his house without authorization based on personal interests. Even if the owner has the exclusive right to use the courtyard green space, if the courtyard green space is a part of the community green space, the owner should also abide by the management provisions of the owners' convention and the property management statute on the community green space when using the courtyard green space, and shall not destroy the courtyard green space without authorization and damage the legitimate rights and interests of other owners in the community.

Trial Chamber: Jiangning District People's Court of Nanjing.

Source: the Supreme People's Court Gazette, No.9, 2007 (total No.1 13 1).

2. According to the plan, the green space that belongs to a specific house and has been included in the sales contract of a specific house according to the plan when the construction unit sells it is owned by individuals ——a Property Company v. Hongmou.

The gist of this case: the green space in the building division belongs to the owner, except for the urban public green space or individuals. The so-called "express" can't be understood as the individual ownership agreed in the sales contract, but should refer to the green space that belongs to a specific house and has been included in the specific house sales contract as planned when the construction unit sells it.

Source: Jiangsu Court Net 20 14 12 3 1.

expert opinion/advice

1. On whether "terrace, etc." includes green space.

There are different views on whether the green space clearly belonging to an owner in real life should be part of * * * or part of the exclusive part.

One view is that "since these green spaces have been owned by individuals according to the plan and the consideration has been paid for them, they should be regarded as the green spaces clearly owned by individuals as stipulated in Article 73 of the Property Law. In particular, these green spaces are usually used only by individual owners. If it is jointly owned by the owners, it is extremely unreasonable for all owners to bear the maintenance obligation. Therefore, these green spaces should be owned by the owners as agreed. Therefore, the author believes that the so-called' express ownership' includes both planning ownership and contract ownership. However, the plan is determined to be owned by the owner and cannot be determined to be owned by someone according to the contract. "

We think this view is very reasonable. The author of this book believes that according to the explanation in the second paragraph of this article, if the green space belonging to a specific house in the plan has been included in the specific house sales contract as planned when the construction unit sells it, it should be recognized as an integral part of the specific house, that is, an integral part of the exclusive part. In the trial practice, it seems that we can grasp it from the following aspects:

First, whether the green space belongs to a specific house "under planning". Planning here refers to all documents related to planning, not just plans. For example, the first floor plan approved by the planning administrative department clearly indicates whether there is a green space attached to the house on the first floor of the community and how big the green space is. Therefore, when trying such cases, the people's court should use the approved first floor plan to determine whether the green space clearly belonging to individuals is legal. If there is a personal green space clearly marked on the first floor of the building plan, and the area is just the same, then the green space is legal. If the area exceeds the area specified in the first floor plan of the building, it is illegal to exceed the part. Of course, if the first floor of the building plan does not indicate that there is a special green space on the first floor of the house, then the green space belongs to the owner.

If other owners of the community sue an owner for encroaching on the green space of the community, then they should give evidence. This kind of evidence is also related to the planning documents, and whether the developers are building according to these documents. If the developer's construction is carried out in full accordance with the plan, then it means that the green space has not invaded the urban public green space, nor has it invaded the owner's green space. If the developer fails to carry out the construction in full accordance with the relevant planning documents, including the first floor plan, assuming that the owner's green space is insufficient, the responsibility shall be borne by the developer. Because developers sell houses, green space is sold as an accessory to houses, and buyers are not at fault. Of course, if the owner thinks that the planning is illegal, he can bring an administrative lawsuit. After the administrative litigation, civil cases will be tried.

If the owner does not have an attached green space when buying a house, or the attached green space is not that big, but circles a green space by himself, or expands his green space into a part of his own exclusive part, it certainly constitutes infringement. In this case, the plaintiff need not provide other evidence.

Second, developers have also incorporated green space into specific housing sales contracts according to the plan when selling houses. If there is no agreement in the purchase contract, the green space does not belong to the exclusive part of a specific owner.

Third, the green space has been "clearly stated" when the owners buy it. If the green space is closed, you can only enter from a specific house. This is the "clearly personal" green space stipulated in Article 73 of the Property Law. We believe that the standard of "express" is actually "having structural independence and being able to distinguish clearly" and "having independent utilization and being able to use exclusively" as stipulated in this article.

Fourth, about the registration of green space that clearly belongs to individuals. We believe that because the green space that clearly belongs to individuals meets the first two conditions of the exclusive part stipulated in this article, it has already formed a part of the exclusive part and has been "able" to register, so it is not necessary to consider whether to register in the register of the registration authority. The reason for this understanding is that the proprietary part has been registered and conforms to the plan, and it is stipulated in the sales contract that it is "express". (Excerpted from Understanding and Application of Judicial Interpretation of Differentiated Ownership of Buildings and Property Services in the Supreme People's Court, edited by the First Court of Civil Trial in the Supreme People's Court, published by People's Court Press in 2009)

2. Q: In some housing sales contracts, the developer or the seller and the buyer agree that the green space in the building division of the residential area (or the green space in front of the ground floor commercial house) belongs to the sole use of the ground floor owners. Is this agreement legally binding? Under what circumstances does it belong to the owner?

A: According to Article 73 of the Property Law, the green space in the building area belongs to the owner, except for urban public green space or individual ownership. This provision of the Property Law shows that the green space in the building division belongs to the owners in principle, except for personal use. In real life, developers often sign commercial housing sales contracts or supplementary agreements with buyers, which are located in front of the ground-floor commercial housing and equipped with enclosure facilities. The buyers use the courtyard (green space) exclusively, and the green space is sold to the buyers together with the ground-floor commercial housing. However, according to the provisions of the Property Law, in order to make the green space owned by individuals, it is necessary to meet the relevant conditions, that is, the legislative provisions clearly belong to individuals. To achieve the condition of "express", the following elements must be met:

First, the green space planning in front of the window must be approved by the planning department in advance. If the planning of commercial housing has been approved by the relevant departments but not submitted for approval, or not submitted for approval after approval, or the developer and the first floor owner have privately reached an agreement on the sale and purchase of the exclusive right to use the green space in front of the window and gone through the planning approval procedures, the contract for the sale and purchase of the green space in front of the window cannot be considered valid.

Second, when selling commercial housing, developers or sellers must make it clear to other owners through advertisements, contracts or other effective ways that the green space in front of the window belongs to the exclusive (exclusive) use of the first-floor residential owners. In short, the developer or seller must have evidence to prove that when selling commercial housing, other owners know or should know that the green space in front of the window belongs to the exclusive use of the owners of the ground floor residential buildings according to the planning and contract.

It should be pointed out that:

First, the green space in front of the window is generally acquired and transferred together with the ground floor residence. In practice, if the owner transfers the green space in front of the window, as long as the green space meets the above conditions and the transfer procedures are legal, the transfer of the green space should be considered effective.

Second, the right of the green space in front of the window obtained by the bottom owners is only the exclusive use right, not the ownership, because the urban land is owned by the state, and the owners only have the land attached to the building and the right to use the green space, but have no ownership, and the owners only have the ownership of the plants on the green space.

Third, the green space in front of the window shall not interfere with the construction and use of public facilities such as public roads, public places, public facilities and property service rooms in the building area.

Fourth, the cost of the exclusive right to use the land in front of the window and the maintenance cost of the green space should be calculated separately, which should be borne by the owners on the first floor who enjoy the green space, and other owners who distinguish the green space should not bear this cost. (Civil Trial Guidance and Reference, No.2, 2008 (No.34 in total), edited by the Supreme People's Court First Court of Civil Trial, published by Law Press in 2008)

/content/ 16/ 1 124/05/5886467 _ 609054839 . shtml