[Direct answer]In the Beijing area, developers give away green spaces within the building areas to specific owners under the guise of "giving away gardens" and "buying a floor and getting a courtyard for free". According to Article 274 of the Civil Code of the People's Republic of China, unless the green spaces within the building areas belong to urban public green spaces or are expressly owned by individuals, they belong to the owners in common. These green spaces are not the developers' exclusive property that they can freely dispose of. The so-called "gift" lacks a basis in property rights, and the recipients have difficulty obtaining ownership rights. Other owners have the right to demand restoration of the original state and removal of obstacles. It is recommended to first check the planning permits, completion drawings, and contract annexes to confirm the nature of the green spaces, then file a complaint with the housing and urban-rural development or urban management departments, or jointly protect rights through owners' meetings. For more details, please refer to the following link:Legal services for real estate transactions and construction projects.

1. Problem background and typical scenarios

Low-rise, stacked and some high-rise residential buildings often use "private gardens" and "sunken courtyards" as premium selling points. Typical scenarios include: developers enclose the public green space in front of the building and promise to "gift it to the first-floor owners"; the purchase contract does not specify it, and it is only implied in verbal or promotional materials for exclusive use; the purchasers illegally occupy the green space to plant and build, which is opposed by neighbors or property management; and when the community is renovated, the "garden" is identified as an illegal construction and required to be demolished. Many owners mistakenly believe that "once they buy it, it belongs to them", but the ownership of the shared green space does not transfer with the sale. Such disputes often affect neighborly relations and community governance. For matters involving community public affairs, you can refer to the relevant provisions of the Property Law of the People's Republic of China and other laws and regulations.Special services and other case servicesCoordination.

II. Key points of contention

There are three main points of contention. Firstly, the nature of the green space ownership: whether it is urban public green space, owners' shared green space, or green space explicitly designated as personal in the planning, which shall be subject to the planning and real estate registration. Secondly, the validity of the gift act: when the developer is not the owner of the green space, its disposition is an act of unauthorized disposition and cannot be opposed by the co-owners. Thirdly, actual occupation and neighborly relations: whether the encroachment affects other owners' right of passage, lighting, fire safety, and shared rights. According to the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trials of Disputes over the Separate Ownership of Buildings" (effective on October 1, 2009 and amended on December 23, 2020), if the green space is specifically designated for a particular house in the planning and the seller explicitly transfers it when selling the house, it can be deemed as personal, but public green space is not included in this category. For issues involving neighborly rights, reference can be made to the relevant provisions.Inheritance succession and family property division servicesHandle the processing of analogous relationships.

III. Professional analysis by Hengluo Lawyers

Based on practical observations in handling property rights disputes in residential communities, the core of the "garden gift" controversy lies in the lack of planning and registration. Many developers take advantage of buyers' preference for "courtyards" by packaging shared green spaces as exclusive benefits, but the contracts avoid mentioning ownership rights, leaving buyers facing demolition after investing in renovations. According to Articles 274 and 275 of the Civil Code regarding the ownership of common areas and parking spaces/garages, the use of shared green spaces should be decided by the owners collectively. Hengluo Lawyers usually recommend the following: Require developers to present the general planning map and a description of the green space's nature before purchasing; include relevant agreements in the contract; for already occupied areas, first communicate with the homeowners' committee and property management to assess the risk of illegal construction; and owners who have been infringed upon can seek restoration through homeowners' assembly resolutions or litigation. For cases involving administrative investigations, follow-up actions can be taken accordingly.Land expropriation and demolition services, and administrative litigation servicesIt reflects the problem of illegal construction.

IV. Practical suggestions and legal basis

The legal basis is Article 274 (Ownership of Common Areas Such as Green Spaces) of the Civil Code (effective January 1, 2021), Article 271 (Joint Management of Owners' Common Areas), and Article 286 (Owners' Obligation to Comply with the Law and Requests for Restoration to the Original State); the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trials of Disputes over the Right of Ownership of Buildings (effective October 1, 2009 and amended on December 23, 2020) regarding the identification of exclusive and common areas; and the Property Management Regulations (effective September 1, 2003 and amended on March 19, 2018) concerning the use of public areas in property management. Practical suggestions: Verify the planning and contract to confirm the ownership of green spaces; the recipient should not make unauthorized alterations or expansions to avoid illegal construction; other owners can protect their rights through the homeowners' committee, urban management complaints, or litigation; and major matters should be decided by all owners. For contract review, relevant provisions can be combined with the above-mentioned legal documents.Business and contract dispute services for enterprisesReview and approve.

5. Hengluo Law Firm's Advice

When dealing with the ownership of the "donated garden", we need to keep a calm mind. Firstly, check the planning general map and real estate registration to confirm whether the green space belongs to the common ownership. Secondly, don't easily believe in verbal promises, and require them to be written into the contract and specify the nature of the property. Thirdly, evaluate the risks of illegal construction and neighboring infringement for those who have already occupied the land, and refrain from building fences or structures without authorization. Fourthly, owners whose rights have been infringed can jointly file complaints or lawsuits with the homeowners' committee to restore the original state of the property. For neighborhood disputes, it is advisable to first engage in consultation and mediation to avoid escalating the situation. If necessary, you can seek help from relevant professional organizations to clarify the ownership and protect your rights.Special services and other case-related servicesDevelop a plan to proactively address and mitigate risks.

VI. Frequently Asked Questions

Q1: The garden given by the developer is actually public green space. Can I keep it?

Whether you can keep it depends on whether the green space legally belongs to you. According to Article 274 of the Civil Code, except for urban public green spaces or those explicitly owned by individuals, green spaces within a building area belong to the owners jointly. Developers have no right to donate them to others for exclusive use. If both the planning and registration show that the green space is jointly owned, the "donation" lacks a foundation in property rights, and it's difficult for you to obtain exclusive use rights. Other owners or the homeowners' committee have the right to demand restoration of the original state. Only when the green space is specifically allocated to a specific house and the seller explicitly transfers it when selling and records it in the contract and registration, can it be considered personal. It is recommended to check the planning drawings first and avoid investing in renovations based on verbal promises, so as to avoid being demolished later and having difficulty claiming compensation.

Q2: If public green spaces are being occupied, what evidence do I, as an owner of other properties, need to provide?

The core evidence includes: the general plan of the residential area and the construction project planning permit (proving that the green space is jointly owned), real estate registration materials or annexes to the commercial housing sales contract (to see whether it specifies exclusive green space), the developer's brochures and sales promises (proving the "gift" statement), on-site fence photos and videos (proving actual occupation), property or homeowners' committee communication records (proving that objections have been raised), and evidence of adverse effects on neighbors such as obstruction and hindrance of passage. The organization of the evidence revolves around "the green space is jointly owned - being unlawfully occupied - infringing on jointly owned rights". Only with complete materials can the complaint or lawsuit request the restoration of the original state and the removal of obstacles be supported.

Q3: How much are the attorney's fees and litigation costs for litigating over the ownership of green space?

The litigation fees shall be paid in accordance with the "Measures for the Payment of Litigation Costs" based on the amount or value of the litigation request; if there is no specific amount for claims for restoring the status quo or removing obstacles, the fees shall be charged according to the standards for non-property cases, and the fees are usually not high. The attorney's fees shall be calculated based on the complexity of the case, whether it is a group case, and the workload, and the specific fees shall be subject to the contract of entrustment. Disputes over the common areas of the residential community can often be promoted by the homeowners' committee representatives or the group, which can reduce the cost. It is recommended to calculate the benefits of protecting rights and the costs before suing, and to prioritize resolving disputes over common green spaces through the homeowners' committee and administrative complaints, with litigation serving as a safeguard measure.

Q4: How long does it usually take to resolve disputes over green space ownership?

The period for administrative complaints and consultations with the homeowners' committee is relatively short. The urban management or housing and construction departments often determine whether a building is illegal and mediate disputes within weeks to months. After entering litigation, the first-instance ordinary procedure is concluded within six months, and the summary procedure is concluded within three months. Cases with clear facts can apply for summary procedures. If an appeal is made, the second-instance procedure generally takes three months. If the defendant refuses to restore the original state after the judgment takes effect, it is necessary to apply for compulsory execution. Overall, it may take several months from complaints to recovering the money or restoring the original state. Group-related or planning-related cases are more complex. It is recommended to fix planning evidence as soon as possible, grasp the three-year statute of limitations, and avoid the long-term occupation of green spaces.

Q5: I found that the garden I was given is a public green space. What should I do specifically?

There are four steps to follow: First, retrieve the general site plan, completion drawings, and contract annexes of the residential complex to confirm the ownership nature of the green space. Second, verify the "gift" claim with the developer and retain promotional and communication records to determine whether there is false advertising. Third, those who have already occupied the area should stop any renovations, assess the risks of illegal construction and neighboring infringements, and proactively consult with the homeowners' association and property management. Fourth, if they are victims, they should pass a resolution through the homeowners' association, file a complaint with urban management or housing authorities to request investigations, and, if necessary, sue to restore the status quo by claiming infringement of co-ownership rights. Throughout the process, they should preserve all evidence and, if necessary, engage a lawyer to clarify ownership and responsibilities to avoid wasting time and effort.

The above answer is based on the judicial practice in the Beijing area. The adjudication standards in other provinces and 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 relevant evidence materials, to avoid missing the statutory time limit.Legal services for real estate transactions·Beijing Henglu Law Firm

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