The owner has the right to use the garden, but has no right to build any structures on the gifted area.
■ Real Estate Commentator of Our Newspaper, Zhao Xiaoli
■ Illustrated by Zhang Ye
Recently, the incident involving Guo Degang's encroachment on public green space has been widely discussed, with the focus being Guo Degang's belief that the villa's garden was a gift from the developer and not an "encroachment." Is this truly the case?
For urban dwellers, the wish for a home where one can stand firmly on the ground and look up at the stars is not easily realized. Thus, many people who aspire to gaze at the stars in their own courtyard have turned their attention to villas and townhouses. The current real estate market practice involves gifting gardens with villa purchases and courtyards with townhouse purchases. However, recent events surrounding Guo Degang's villa encroaching on public green space have led many to question the "status" of villa and townhouse gardens—do owners truly possess property rights over the gardens? Do the gardens gifted by developers fall under public green space?
Gardens gifted with villa purchases
Most owners lack property rights
Our investigation reveals that buying a villa with a gifted garden has become a common sales strategy among developers. Gardens have become a key feature of villa products, differing only in the size of the gifted garden area. Many villa projects in Nanjing come with lavish gardens; typically, townhouses are gifted with gardens measuring around 60-70 square meters, while some detached villas boast private gardens exceeding 100 square meters. Garden accompaniments have become a major selling point for developments. During interviews, many owners expressed that without the large gifted gardens, the appeal of villas and townhouses would significantly diminish. Ms. Chen, an owner of a villa in Jiangning, said, "Buying a villa is largely about the spacious private garden, otherwise, it might as well be an apartment."
However, many may not realize that most owners who view gardens as private property do not actually hold property rights over them. Lawyer Jiang Zhimin from Jiangsu Junyuan Law Firm pointed out that in most cases, villa garden land in Nanjing is not included in the property certificate but merely reflected in the building area and land occupation area.
"The garden is part of the gifted area, not included in the property certificate, and there are no specific clauses in the purchase contract addressing this. It mainly depends on our actual delivery," said a salesperson from a villa project in Xianlin. In our investigation, we found that only a very few villas claim they will assist owners in processing property certificates for the gifted gardens.
In addition to gifting gardens with villa purchases, developers in Nanjing also popularize the strategy of gifting gardens with first-floor townhouse purchases. For example, the garden townhouses of projects like Rongqiao Rose Diary and Cuiping Ziqi Zhongshan offer gifts of gardens ranging from over 30 square meters to more than 70 square meters. Despite the higher prices of first-floor units compared to other floors, these gardens also lack property rights.
Owners have usage rights
But cannot construct illegal structures
Our investigation learned that although villa owners do not possess property rights over the gardens, their usage rights over the gardens are relatively secure. "We will specify the owner's usage rights over the gifted areas in the supplementary agreement," said a sales manager of a villa project in Jiangning. "The owner has the right to use the garden but has no authority to construct any buildings on the gifted area; doing so would constitute illegal construction. This was the issue with Guo Degang." Generally speaking, as long as the user of the garden does not expand its area, encroach upon pedestrian paths, or harm the neighborhood's cable, water pipes, safety systems, or occupy other owners' spaces, they can freely use the portion of the garden gifted by the developer.
According to relevant sales personnel, the garden can be maintained independently or entrusted to a property management company for care, though additional maintenance fees will apply, which is a common practice in villa projects. "Since the maintenance of the garden incurs additional costs, one could say the care and use of the garden belong to the owner," said an industry insider.
Is the gifted garden
Part of public green space?
Since owners do not possess property rights over the gardens, does the gifted garden belong to public green space? Do other owners within the same community have the right to demand access to the gardens?
Industry insiders stated that determining whether a gifted garden belongs to public green space is complex. Although the initial reported green coverage rate can be found in the developer's planning proposal, it is difficult in practice for owners to calculate the community's green coverage rate excluding the garden area.
Lawyer Jiang Zhimin pointed out that when developers buy land to build houses, they divide the land into house area, road area, and green area. Pairing gardens with villas and gifting them to owners for use is a currently established practice. "Although the garden area is not reflected in the property certificate, signing a contract indicates that other owners tacitly agree to this owner having usage rights over the garden. Moreover, if it is a pure villa community where every household has a gifted garden, there is no issue of infringing on other owners' rights," said Lawyer Jiang Zhimin. "If it is a mixed-use development and other owners have objections, filing complaints through the homeowners' committee would still find it difficult to confirm such claims, and the likelihood of execution is slim."
Lawyer Wang Wei from Jiangsu Suyuan Law Firm stated that determining whether a garden is public green space depends on two documents: if the area is not reflected in the owner's land certificate, it signifies that the area belongs to the community's common area. "Even if it can be proven that the garden is public green space, the practicality of other owners wanting to share it is minimal. Even in communities with multiple housing types, villa areas, townhouse areas, and apartment areas are divided by region, each with their own domains. Gardens often have fences and access controls, making it unlikely for other owners to intrude."
Industry insiders believe that the price of villas and townhouses exceeds that of apartments because developers have already factored in the cost of the land occupied by the gardens. Owners having usage rights over the gardens is thus justifiable. The main issue with Guo Degang lies in his unauthorized addition of wooden fences around the garden and the construction of a wooden pavilion on the green space, which falls under illegal construction. Moreover, as a public figure, some of his words and actions have challenged the moral boundaries of the public, leading to the escalation of the incident, making it uncontrollable.