Q: I bought two off-plan apartments from a developer. The units are ready. The final area is as per drawings i.e. less than that given in the SPA. I want the units to be cancelled with a refund… A: Developers might have acted deliberately but what is the proof we have in our hands to prove the same…

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Claiming refund in off-plan properties for area variations

I bought two off-plan apartments from a developer.

Later I found that the covered area given in the "Sale and Purchase Agreement" (SPA) is 20% more than the area calculated from design drawings provided by the developer.

The units are ready for handover now and the final area is as per drawings i.e. less than that given in the SPA.

The developer is adjusting the price for anything below 95% of the SPA area as the SPA allows 5% downward variation.

As per my understanding, the developer already knew that the area is less and they exaggerated the area in the SPA. They also made a false statement of the area in the SPA.

This should be a type of fraud or cheating. I have been writing this to the developer for the last two years but without any response.

I want the units to be cancelled with a refund of the full amount and necessary compensation.

Please advise the way forward.

Rajasree Ravivarma

Al Nassar Advocates & Legal Consultants

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27 May 2019, 20:17

Dear Questioner,

Thanks for writing to me.

I understand that you want to surrender and take a full refund for the off-plan property you purchased because of the variations between the SPA and the actual area.

Please note that 5-10% variations from the SPA are allowed in most of the agreements. Further, they are adjusting the cost of the variation.

As you have mentioned, the developers might have acted deliberately but what is the proof we have in our hands to prove the same before the Court.

You may file an expert case in Dubai Courts to go through the drawings, location sketch and actual size and variation percentage.

Please feel free to contact me if you need any further information, assistance or guidance.

Thank you.

Regards,

Rajasree Ravivarma

+971585836631 [whatsaap]

+971585013663 [call]

28 May 2019, 07:40

Hi Rajasree,

Thanks for your response.

Here are my comments, I will call you later today to discuss the way forward:

1. I have proof that developers acted deliberately. They provided me with design drawings showing a much lesser area as compared to the area given in the SPA.

They are also in violation of Clause 11.1 of the SPA that states "....whilst the Unit Plan and the Elevation Plan are as accurate as possible...."

2. The second but less preferred option is if we can't prove the deliberate act of exaggerating area:

The final area is 19% less for one unit and 9% less for the second unit. Can we cancel the contract based on these variations?

What will I get back (i) money paid to the developer, (ii ) my total cost or (iii) my total cost + compensation?

29 May 2019, 04:55

Dear A.,

Please note the relevant legal provision for your situation.

As per Article 13(3) executive Council's Decree 6 of 2010, the developer must indemnify the purchaser if the area of the real property unit is less than the agreed area by more than 5 % of the net area of such unit.

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