Development agreement and change of premises area
According to the Law of May 20, 2021 on the protection of the rights of the purchaser of residential real estate or a residential building and the developer’s guarantee fund, the development contract must specify the usable area of the residential real estate or single-family house that is the subject of such an agreement.
– For the buyer, information about the area of the site is extremely important, as the area is often one of the criteria that determine the choice of a particular site. Unfortunately, as practice shows, situations often arise when it turns out that the final area of the premises differs, sometimes even significantly, from that indicated in the contract concluded with the developer. – notes Paulina Szeremeta, legal consultant at the law firm K&L Legal Granat i Wspólnicy, in an interview with Gazeta Prawna.
How do developers cheat in the facility space?
The expert explains that the abusive provisions contained in the development contract serve this purpose.
– Developers include provisions in their contracts to protect their interests in the event of changes to the usable area of the premises. A common case is the provisions that condition the consumer’s right to terminate the contract due to a change in the size of the property’s useful area upon exceeding a certain percentage of change in the size of the area – explains lawyer Paulina Szeremeta and points out an example included in the register of prohibited clauses.
– The following provision was registered under number 6591: “the area of the facilities cannot undergo changes of more than 5% (five percent) and in this case it is considered that the facilities were built in accordance with this contract and the parties do not have the right to terminate the contract invoking this circumstance”, quotes the lawyer.
Is the area under the partitions the usable area?
A common case of dishonest people development practice is to include the area under the dividing walls useful area facilities. As the expert points out, this is the result of legal ambiguities.
– There are provisions in the development contracts in which the developers refer to the PN-ISO 9836:1997 standard which regulates the issue of area measurement. According to this useful area is the part of the useful area that corresponds to the purposes and intended use of the building. The area in question also includes elements that can be dismantled, such as partitions. However, the above-mentioned standard does not define the concept of partitions as a demountable element. This often leads to abuse by developers, who also include the area under the walls in the useful area of the premises, which are in fact not partitions that are easy to dismantle, but are brick partitions, the dismantling of which requires construction work. – says legal advisor Paulina Szeremeta.
As a result of such practices, the final usable area of the premises may be less than that indicated in the development contract and for which we paid. Lawyer Szeremeta explains that this is a case of misleading the consumer.
– This practice must be considered as misleading consumers as to the method of calculating the actual area of the premises and, consequently, constituting an unfair market practice as referred to in art. 4 section 2 of the Law of 23 August 2007 on combating unfair market practices. Under the terms of the aforementioned provision, “unfair market practices include, in particular, misleading and aggressive market practices, as well as the application of an illicit code of good practice”, explains the lawyer.
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What is a development agreement?
The development contract is one of the most frequently concluded contracts. Its definition is set out in the Law of 20 May 2021 on the protection of the rights of the purchaser of a residential property or house and of the developer’s guarantee fund.
According to art. 5, point 6 of the previous law, it constitutes “an agreement concluded between the buyer and the developer, under which the developer undertakes to construct a building and establish separate ownership of the residential premises and to transfer the ownership of these premises and the necessary rights to use this property to the buyer or to develop the landed property constituting the object of ownership or perpetual usufruct of single-family housing and transfers to the buyer the ownership of this property or perpetual usufruct of land and the ownership of single-family housing built on it constituting an independent property or transfer of a fractional share of the ownership of this property together with the right to exclusive use of the part of the property intended for the satisfaction of housing needs, with the buyer being obliged to make a monetary payment for the acquisition of this right.
