Published On: Sat, Sep 4th, 2010

Builders can not sell stilt parking areas – Supreme Court

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In a recent case of an argument of a real estate development company that they are entitled to sell garages or stilt parking areas as separate flats to owners who intend to use it as parking facilities, a bench of Justices A K Patnaik and R M Lodha of Supreme Court, ruled that builders or promoters cannot sell parking areas as independent units or flats as these areas are to be extended as “common areas and facilities” for the owners.

The court passed the judgment while dismissing the appeal of the promoter, Nahalchand Laloochand Pvt Ltd, who challenged the Bombay high court’s ruling that under the MOFA (Maharashtra Ownership Flats Act) a builder cannot sell parking slots in the stilt area as independent flats or garages. The apex court accepted the argument of the flat owners of Panchali Co-operative Society in Dahisar (E) that even if they had entered into any prior agreement or contract with the builder that they would not lay any claim on the parking areas, the same would not have any legal sanctity.

the court also disclaimed the appeal of the promoter that by treating these parking spaces as common areas, every flat purchaser in any case will have to bear proportionate cost for the same even if he may not be interested in such parking space at all.

Justice Lodha wrote in the judgment that the promoter has no right to sell any portion of such building which is not a ‘flat’ within the meaning of Section 2(A-1) and the entire land and building has to be conveyed to the organization. The only right that remains with the promoter is to sell unsold flats. Thus, it is clear that the promoter has no right to sell stilt parking spaces as these are neither flats nor apartments or attachments to a flat.

It is necessary for a promoter to fully disclose the common areas and facilities. Stilt parking spaces are usually not described as the part of the common areas. The same as such does not appear in the advertisement and agreement with the flat purchaser.

So far the said promoter is not put to any prejudice financially by treating open parking space/stilt parking space as part of common areas since he is entitled to charge a price for the common areas and facilities from each flat purchaser in proportion to the carpet area of the flat,” the apex court said.

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  1. MakarandJoshi joshi says:

    We have 380 parking space, and 300 owner have paid builder for parking space almost about 1,50000 to 2,00,000 and after 5 year the society is not charging other 80 member the parking charges. 300 people are demanding that society should charge 50,000 refundable deposit and 500 rent at least. My question is can society do that, any by-lays. Please some guide me how to go about it.

  2. nagrik says:

    Our society has some open space on both sides of the building and flat owners who brought cars first have taken that space for parking their cars. Now the number of car owners have increased but there is no more open space for parking. The car owners who do not have parking place are demanding some solution like rotation policy for car parking or double decker parking etc but the car owners who already have car parking space do not accept that. They say that we came first and so on this existing space we only can park. I want to know IS IT JUSTIFIED? What is the way to get JUSTICE?

  3. Prakash Vithaldas says:

    Builder never had the rights to sell the car parking spaces. Thus spaces sold by the builder any time before the judgment date by SC on 31st August 2010 makes it invalid. Society has to adopt the suitable bye laws and allot the same to its members in a democratic way.

  4. sunil goswami says:

    builder sold stilt parking area as shop and office. now we have not sufficient parking place.Can society take any legal action

  5. deepu says:

    My Builder made us agreement : ” In occordance to the Apportionmnet agreement , the Stilt floor and the Terrace shall remain the absolute property of the Builder and the Onwer shall be entitled to sell, alienate and / or lease out the said portion thereon in any manner he/she choose”

    Kinldy let us know how far a builder can caim ownership of these areas.

    “”

  6. ARUL says:

    I PURCHASED A 2BHK FLAT. THE BUILDER CHARGED FOR STILT CAR PARKING AND MARKED AND GIVEN A PLAN MENTIONING THAT THE CAR PARKING IS EXCLUSIVELY FOR ME AND DONE THE SAME FOR OTHER FLAT OWNERS. ONE OF THE  FLAT OWNER LET OUT HIS CAR PARKING TO THIRD PARTY  WHO IS NOWHERE CONNECTED TO THE FLATS. WHETHER CAN I  ASK TO REMOVE THE 3RD PARTY VEHICLE , SINCE IT IS COMMON AREA. THE CAR PARKING MARKED BY BUILDER IS ONLY TO ENJOY THE CONCERNED FLAT OWNERS FOR HIS OWN PURPOSE AND IF HE WANT TO LET OUT OR ALLOW 3RD PARTY PARK VEHICLE , HE SHOULD GET CONSENT FROM ALL THE FLAT OWNERS. IS IT CORRECT . IF SO UNDER WHAT ACT I CAN PROCEED. PLZ HELP TO RESOLVE THE ISSUES.

  7. venkatesh says:

    Hi ,

           I have some query in
        1. can any one build the roof beyond his limit and occupy the common area which is common to 6 persons.?
        2. can he build the sun shade in common area?
       
    Thanks.

  8. Venkatesh says:

    Hello,

              I have a query in the following
       1. Can any one extend the roof beyond his limit and encroached the common area which is belongs to 6 persons?
       2. Is there any law to built the sun shade in common area? 

    Thanks.

  9. Rakesh Ranjan says:

    I have purchased a 2BHK flat at wagholi at PUNE.
    Now builder is asking me two lakhs rupees for parking.
    Aren’t it illegal
    How can I  solve this problem

  10. Mohammed says:

    I have purchased flat in year 2000 along with stilt, parking now the society, can take back my parking.
    as per SC judgement

  11. kalpesh bhatt says:

    I want to buy ground flat with garden. Whether I should pay for garden area at what rate? To pay as per the rate of Sq feet I am paying for flat or lesser.. Do I have to pay for garden development cost? If so, than at what rate I have to pay as garden development cost?

  12. Ganesan Iyer says:

    No specific comments but a question is that the Stilt for car parking has been provided by the builder. The land was allotted to the society by CIDCO Ltd. and society entered into development agreement and the builder handed over the possession fo flats and stilts to the purchasers. Cidco has entered only Agreement to Lease. NO LEASE AGREEMENT IS EXECUTED BY CIDCO LTD. The owners of the stilt wanted to make change of use of stilt into and for commercial use. Neibhouring small tenements built by CIDCO for residential purpose is now being used for commercial purpose. Can the change of use of stilt be permitted what steps has to be taken for getting the change of use.

  13. It is ridiculous and at the same time tragic to see how frightened we
    Indians are and despite having an education, how ignorant we remain and how much we
    want to be spoon fed information.

    Ladies and Gentlemen..This site is giving us information. ( I own a flat with
    parking space in Kolkata). If you expect the site owner/s to give you advice too,
    help you against illegal construction, give you information about where it is
    applicable, etc.etc., surely it is asking too much of them

    They are giving us the gun. We cannot ask them to shoot it for us too. I will
    suggest that those interested print out a few copies of the verdict,{ perhaps Delhi residents can upload SC full verdict too, which others can download if the site owner
    permits}. All SC verdicts are applicable throughout the Indian Republic unless
    mentioned otherwise in the document (the verdict paper). Whatever problems
    different people are facing, the best thing to do will be to request legal
    advise by approaching a lawyer, armed with a verdict copy. I do not think that
    the date of verdict will matter. The SC has not made a law. It has only clarified an already an existing law. But these are my opinions only dependant on guesswork. We should
    take the help of professionals

    Perhaps, flatowners in different cities can form an association to discourage all
    and sundry from considering us easy to fool, as we remain busy. Unless we get
    together, situations like these are bound to make fools of us, one day or
    the other.
    Finally, may I clarify that, perhaps some of you do not know but putting/typing in CAPS ON means ” shouting”. Generally, when people see a message in CAPS, it appears to
    people as shouting and feel insulted. All caps are not very easy tp read too

    Arindom Borah
    111, Raipur Road, Kolkata-700047
    arindom.borah@gmail.com

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