By Dr Sanjay Chaturvedi, LLb, PhD
The new Real Estate ( Regulation and Development) Act 2016 is silent on sale of parking space separately. Although it has defined the parking space, garage and other parking facilities like sacks and elevators, but it is silent on sale of such amenities separately. According to Supreme Court in the case of Nihalchand laloochand P Ltd, parking is amenity attached to apartment hence cannot be sold or purchased.
No builder can sell parking space in Maharashtra as the Bombay high court has ruled that a stilt parking space is a common parking space available to members of the housing society. Same is the case in other states.
Maharashtra RERA rules defined parking as : “Covered parking space” means an enclosed or covered area as approved by the Competent Authority as per the applicable Development Control Regulations for parking of vehicles of the allottees which may be in basements and/or stilt and/or podium and/or space provided by mechanised parking arrangements but shall not include a garage and/or open parking.
Neither of them can be sold or purchased. All agreements making such provisions or all receipts for parking are illegal. A garage or covered parking also cannot be sold separately as the treatment is same as easement rights. The amenity is attached to apartment and in almost all Development Control Regulations and Town planning schemes in the country, parking provided to flats cannot be sold or purchased.
The Maharashtra RERA in its model agreement says “In accordance with the terms and conditions set out in this Agreement and as mutually agreed upon by and between the Parties, the Promoter hereby agrees to sell and the Allottee hereby agrees to purchase the (Apartment/Plot) and the garage/covered parking(if applicable)”.
Which means that parking needs to be included without cost. The Model agreement provided, thus, as under:
(ii) The Allottee hereby agrees to purchase from the Promoter and the Promoter hereby agrees to sell to the Allottee garage bearing Nos ____ situated at _______ Basement and/or stilt and /or ____podium being constructed in the layout for the consideration of Rs. ____________/- (iii) The Allottee hereby agrees to purchase from the Promoter and the Promoter hereby agrees to sell to the Allottee covered parking spaces bearing Nos ____ situated at _______ Basement and/or stilt and /or ____podium being constructed in the layout for the consideration of Rs. ____________/-.”
Which means a covered parking or garage can be sold only with the flat and price needs to be mentioned separately. No open parking space can be sold or purchased. All such transactions are illegal ab initio.