Discrepancy in gross saleable area

We rent an apartment in Burj Khalifa. We took the apartment because of its location and the facilities that were promised. The developer and our agent advertised club facilities, including outdoor and indoor pools, that were open to residents. When we visited the property, we were told the club wasn't ready but would be, in a few weeks. Now we realise they were lying to us as they claim they do not know when the pools will be ready. Our request to use the pools at the nearby hotels, owned by the developer, also went unheeded. We are very unhappy and wonder whether we have a legal option against the agent who advertised something that wasn't there?

Regulation 85 of 2006 relating to the organisation of the real estate register in the Emirate of Dubai requires brokers to adhere to the Code of Conduct produced by the Permanent Committee for Real Estate Brokerages. The Code, in turn, sets out various professional and ethical standards that brokers must meet. Included in those standards is the need for brokers to present the deal to the parties involved honestly, and "to inform the parties of all facts and circumstances known to us regarding the real estate". The important thing to note here is that the broker's duty is limited to informing you of what is known to him. If, therefore, the developer has furnished the broker with information that is not true, possibly by way of the material on the developer's website, as in this case, then the broker may not be liable if that information was accepted in good faith and the broker had no reasonable reason to question or disbelieve it. In short, my view is that you probably have no case against the broker. You may, however, have a good argument to say to the landlord that as the facilities you relied upon when signing the lease have not been forthcoming, the rent should be decreased accordingly. Then again, look on the bright side — you're living at Burj Khalifa!

My sales and purchase agreement (SPA) mentioned the gross saleable area as 1,280 square feet, but the title deed states that the net area is 969 square feet — 25 per cent less than what I paid for. I can understand a difference of 5 per cent, but this is like cheating in broad daylight. Do I have a case? Also, is it not mandatory to allot at least one parking space in a high-rise tower for every apartment?

It's quite possible that the SPA and the Land Department are both right. The key here is to make sure you are not comparing apples with pears — you need to compare like with like, and to know how each term is defined. Depending on the wording of your SPA, the ‘gross' area could include, for example, your share of the common parts of the building — that is the parts of the building that you share with all the other owners, like the hallways and reception area, rather than the area of your apartment. When the Land Department issues the title deed, it doesn't include these common parts, and measures the unit by reference only to the ‘net' area, which is effectively the area bounded by the walls of your apartment. If, after checking this point, the area is still more than 5 per cent less than what you paid for, then you can claim a pro rata refund from the developer.

On the issue of parking spaces, the Dubai Municipality Building Code Regulations and Construction Specifications (February 2004) states that, in the case of residential apartments, one space must be provided for each unit up to 1,600 square feet, and two spaces for each unit in excess of that. The only exception to this is for buildings in ‘special town planning' areas where different regulations may apply. The regulations suggest that the space should be an entitlement, and not something to be paid for as an addition. However, if you have agreed in your SPA to pay a certain price for the space, it may be argued that you are contractually obliged to pay for it, even if the developer is obliged to provide it anyway. In other words, just because the developer is obliged to provide something doesn't automatically mean you're not obliged to pay for it.

I have rented the same flat for the last six years. The first owner sold it once and now the second owner has just sold it again, and I have to take in new cheques tomorrow for the new owner. My lease runs out and starts afresh this month, and I had already handed over four post-dated cheques for the coming year. So now I need to write out new cheques. Apparently the terms of my lease will remain the same ‘as per UAE law’ but I’m wondering if there are other people in the same position. How does the law affect or protect you when you’re a long-term tenant and you have a new owner?

This is indeed a common concern for Dubai tenants. In practice, when a landlord transfers his title in a property to a third party, that third party will usually take the place of the landlord vis a vis the existing tenant. The landlord and tenant relationship will continue as usual between the tenant and the new landlord, and often rent already paid will be apportioned between the new and old landlords, without the tenant needing to be involved. This position is also supported by UAE Law, and Law No 26 of 2007 (Regulating Relation Between Lessors and Lessee) specifically states that transfer of title to a new owner shall not affect the right of the lessee to continue occupying the property under the lease. A long-term tenant is therefore protected by law and, unless he/she agrees to vacate, the tenancy will continue.  
 
Jerry Parks is a partner and head of real estate at Taylor Wessing. Do you have a legal question related to property that needs answering? Email property@alnisrmedia.com along with your contact details. Post your queries on: www.facebook.com/propertymagazine