[Direct answer]In the Beijing area, if the promise is valid, the buyer can claim breach of contract, subject to the specific provisions of the agreement and evidence. The Civil Code of the People's Republic of China (effective January 1, 2021) stipulates that if a party fails to perform its contractual obligations or performs them in a manner inconsistent with the agreement, it shall bear breach of contract liability. The Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trials of Disputes over Commercial Housing Sales Contracts (amended in 2020) clarifies that the sales advertisements and promotional materials for commercial housing are invitations to make offers, but if the seller's explanations and promises regarding the houses and related facilities within the development scope of the commercial housing are specific and have a significant impact on the conclusion of the commercial housing sales contract and the determination of the housing price, they shall be deemed offers. Even if such explanations and promises are not included in the contract, they shall also be deemed part of the contract content, and the party in breach shall bear breach of contract liability. Therefore, if the developer's specific promises regarding the free gift of area, terrace or yard meet the above conditions, the buyer who has not received the promised benefits may claim breach of contract liability, reduction of the purchase price, or compensation for losses.

I. Problem Background and Typical Scenarios

In order to promote sales, developers often use "free gift area", "free terrace" and "free garden" as selling points, but fail to deliver them when handing over the houses, citing planning restrictions or the lack of the right to give away these items as excuses. Typical situations include: the basement or attic promised to be given away cannot be delivered; the terrace advertised as a free gift belongs to the public area and cannot be used exclusively; and the free gift area is actually included in the building area and affects the price. Whether the promise constitutes part of the contract is a core dispute in real estate sales disputes in Beijing.

II. Key points of contention

First, does the promise of free additional area constitute an offer and part of the contract? Second, does the free additional area fall within the legally permitted scope for such gifts? Third, what forms of liability can the buyer claim if the promise is not fulfilled? Fourth, how should area errors be handled, and is the error ratio rule applicable? Fifth, what methods should be used to provide evidence for promotional materials and verbal promises?

III. Professional analysis by Henglue Law Firm

Here is the translation of the Chinese text into English, with detailed explanations: Henglue Lawyers' Practical Experience Tips on Real Estate and Contract Disputes (Part 4): 1. Judging the Legality of Promises: Sales advertisements and promotional materials are generally considered invitations to offer, but if the developer provides specific descriptions and promises regarding the gifted area, and these have a significant impact on the contract formation and price determination, they are deemed as offers and constitute part of the contract. Therefore, to determine whether a breach of contract claim can be asserted, the key lies in whether the promise is specific and has a significant impact on the transaction. 2. Legality Review: The gifted items must be within the developer's legal rights to dispose of and comply with planning regulations. For example, "gifting" public areas, fire exits, or illegal buildings would violate legal requirements. In such cases, compensation or price reduction claims can be pursued based on fault and damages, rather than simply demanding delivery. 3. Evidence Preservation: Collect brochures, promotional leaflets, model room photos, written or chat commitments from sales consultants, audio recordings from sales sites, and contract provisions regarding the gifted area to form a complete evidence chain to prove the content of the promise and its impact on the price. 4. Remedies: Demand the developer fulfill the promise, provide equivalent substitution, reduce the price, or compensate for losses. If the overall cost-performance ratio of the property significantly decreases due to the unfulfilled gift, claim compensation for the corresponding price difference. For area discrepancies, assert rights according to contract provisions or judicial interpretations on area differences. 5. Negotiation and Litigation: Start with written claims and negotiations, and proceed to litigation if unsuccessful. During litigation, apply for an appraisal of the value of the gifted items to support compensation claims. Overall, the core of protecting rights related to gifted areas lies in whether the promise is specific and affects the price, as well as the sufficiency of evidence. Henglue Lawyers typically start by reviewing promotional materials and preserving evidence of commitments to assist clients in asserting breach of contract and compensation claims in housing sales disputes.

IV. Practical suggestions and legal basis

Action suggestions: First, preserve the sales brochures, promotional materials, images of model rooms, and records of commitments made by sales consultants to secure evidence; Second, verify whether the contract specifies the free gift area and its nature, and clarify the rights and obligations; Third, analyze whether the commitments are specific and affect the price, and determine whether they constitute part of the contract; Fourth, first demand performance or compensation in writing, and file a lawsuit if no agreement is reached; Fifth, in the case of area errors, claim appropriate remedies in accordance with the contract or legal provisions. For matters related to real estate transactions and construction, you may refer to the relevant guidelines.Real estate transactions and construction projectsIt can be referred to for matters related to enterprise operations and contractsBusiness and contract disputes in enterprisesLegal basis: Article 577 of the Civil Code of the People's Republic of China (effective January 1, 2021), and the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trials of Disputes over Commercial Housing Sales Contracts (amended in 2020) regarding the provisions on sales advertisements and promotional materials. The specific application shall be subject to the currently effective laws, regulations, and judicial rulings.

5. Henglue Law Firm's Advice

Firstly, whether the promise of free gifts constitutes part of the contract depends on whether it is specifically defined and affects the price. Secondly, the promotional materials should be preserved, and verbal promises should be converted into written documents or chat records as much as possible. Thirdly, there are legal obstacles to the legality of free public areas or illegal buildings, so the remedies should be adjusted accordingly. Fourthly, if there are area errors, you can claim according to the rules and pay attention to checking the actual measured area. For claims for debt recovery and enforcement, you can refer to the relevant provisions.Creditor's rights and debts, and enforcementFor matters involving family property, you can refer to the following for reference.Divorce litigation and family disputesFor cases involving personal injury, you can refer to the following guidelines.Personal injury and medical disputesFor other difficult matters, you can refer to the following for guidance.Special services and other cases.

VI. Frequently Asked Questions

Q1: If the developer fails to deliver the promised free area, can we claim compensation?

This can be claimed, but it must meet certain conditions. If the developer makes specific determinations and promises regarding the gifted area, and if these have a significant impact on the conclusion of the contract and the price of the house, then this commitment can be considered part of the contract. If it is not fulfilled, the developer should bear the liability for breach of contract, and the buyer can claim a reduction in the price or compensation for losses.

Q2: Does the "gift" mentioned on the promotional leaflet count as a real gift?

In principle, sales advertisements and promotional materials are invitation to offer, but if the content is specifically determined and has a significant impact on the conclusion of the contract and the price, it shall be deemed as an offer and become part of the contract. Therefore, the specific promise of free area on the promotional leaflet may count as an offer, and the court will determine it based on the content and evidence.

Q3: What should I do if the terrace that was given as a gift can't be used anymore?

If the terrace is a public area or its exclusive use is not permitted by the planning regulations, the developer's promise of a free gift inherently faces obstacles. The buyer may claim compensation or request a price reduction based on the developer's fault and the buyer's losses. It is recommended to verify the planning and ownership status, evaluate the available remedies, and, if necessary, pursue legal action to assert rights.

Q4: What is the minimum area difference required to check out of the hotel?

According to the contract and relevant judicial interpretations, if the absolute value of the area error exceeds the agreed proportion, the buyer may claim to rescind the contract or settle the house price according to the actual situation. The specific proportion and handling methods shall be subject to the contract provisions and legal regulations. It is recommended to check the actual measurement area report and claim rights in time.

Q5: Does an oral promise to give a gift count as a gift?

It's quite difficult to provide evidence, but it's not impossible. If the property consultant's oral promises are supported by recordings, chat logs, or other evidence, and the content is specific and affects the price, you can claim that they constitute part of the contract. It is recommended to include important commitments in the contract or supplementary agreement when purchasing a house to avoid disputes in the future.

The above answer is based on the judicial practice in Beijing. The adjudicative opinions in other provinces or cities may vary. For specific cases, please refer to the local rules and evidence situation.

If you are facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the evidence materials, so as to avoid missing the statutory time limit. →Legal services for real estate transactions·Beijing Henglu Law Firm

Disclaimer: This article is compiled based on current laws and regulations and publicly available adjudication rules, and is for general reference only. It does not constitute formal legal advice for specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.