The Supreme Court has ruled that builders/promoters cannot sell parking areas as independent units or flats as the same is to be extended as “common areas and facilities” for the owners. A bench of Justices R M Lodha and A K Patnaik in a judgment rejected the argument of a real estate development company that they are entitled to sell garages/stilt parking areas as separate flats to owners who intend to use it as parking facilities.
“If a promoter does not fully disclose the common areas and facilities, he does so at his own peril. Stilt parking spaces would not cease to be part of common areas and facilities merely because the promoter has not described the same as such in the advertisement and agreement with the flat purchaser. 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.’’
“It is, thus, clear that the promoter has no right to sell stilt parking spaces as these are neither flats nor apartments or attachment to a flat,’’ Justice Lodha writing the judgment said.
The SC passed the judgment while dismissing the appeal of the promoter, Nahalchand Laloochand Pvt Ltd, challenging 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 garage. 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.
It brushed aside the claim of the promoter that by treating open/stilt parking space as part of common areas, every flat purchaser will have to bear proportionate cost for the same although he may not be interested in such parking space at all.
“As a matter of fact, so far as the promoter is concerned, he 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. AGENCIES
Builders have no right to sell stilt parking: Supreme Court
Thu, Sep 2, 2010
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Unitech
September 3rd, 2010 at 1:10 AM
What should i do? I have made agreement with builder 2 months back. Paid for parking as 1.5 lakh rs. Project wil be complete by april 2011. What if i dont get alloted parking space as only 60% parking is available. Or wil he increase my flat prize even after agreement as xtra common area loading?
September 5th, 2010 at 10:56 PM
i have made agreement with builder 2 months back?? paid Rs 1.5 lakhs for parking. what shall i do?? will he return my money back for parking.
September 13th, 2010 at 12:16 PM
While the judgment sounds logical from the stand point that all flat owners have right over the common areas.. a few issues that may crop up and the confusion this can lead to, has been left in the dark.
1. What happens to parking lots (stilt,basement or open) which has been sold by builders hitherto?
2. While the builder is safely out of the mess by charging the flat owners for the open space (anyways he will use it for his financial benefit), a reasonable solution for parking requirement which is getting more and more serious has not been answered. It would have been great if the apex court also come out with a ruling that all builders must provide adequate parking (with a minimum of 1 per flat and additional for visitors).
3. Now the societies will take charge and the bullies / influential guys will encroach the parking areas with the poor next door guys having no say inspite of having paid equally for the common area.
I hope the Apex court has thought through these and many other related issues that will arise in an otherwise more or less smooth running arrangement.
September 16th, 2010 at 11:08 PM
Supertech is still charging for parking. I think this rule is not applicable in UP.
November 13th, 2010 at 9:09 PM
Dear Sir,
My self Santanu Deb from kolkata. I booked a flat in Kolkata & going to sign agreement with builder within Tuesday, where builder is charging Rs. 2 Lakh open car parking par flat. Here my question regarding above said judgment -” The Supreme Court has that ruled builders/promoters cannot sell parking areas in the stilt area as independent units as the same is to be extended as “common areas and facilities“ for the owners” – is applicable for West Bengal ?
My Builder says this rule is applicable for Mumbai only ! Please reply?
If so sir it can save another 2 lakh from our savings.
Santanu Deb
January 28th, 2011 at 9:28 PM
I have paid Rs 1.5 lakhs for the parking space . The possession of the flat is likely to be given in June 2011. Will the builder return my parking charges? or Can we ask him to use the charges paid for the parking towards the last instalment.
May 22nd, 2011 at 2:44 PM
M/s KLJ Developers are charging for parking at their projects in Harayna i.e. Faridabad and Bahadurgarh. Is the Hon’ble Supreme Court applicable to these projects. What happens to the amount already paid towards parking space?
June 1st, 2011 at 10:25 PM
BUILDER HAS DEMANDED RS.2 LACS FOR COVERED CAR PARKING STATING THAT IT WAS MANDATORY AND IT WAS PAID BY CHEQUE / BANK TRANSFER ON 27-10-09. THE FLAT WAS DUE TO BE GIVEN POSSESSION AT THE END OF DECEMBER, 2010 BUT THE SAME WAS NOT GIVEN POSSESSION SO FAR. (JUNE, 2011) WHETHER WE CAN DEDUCT THIS AMOUNT FROM THE BALANCE AMOUNT TO BE PAID TO HIM AT THE TIME OF HANDING OVER THE FLAT?
WHETHER THE SUPREME COURT RULING IS APPLICABLE IN THIS INSTANCE?
IF THE BUILDER IS NOT AGREEABLE FOR ITS ADJUSTMENT IN THE FINAL PAYMENT, WHAT ACTION CAN BE TAKEN AGAINST HIM? IF HE IS HOSTILE, WHAT SORT OF TROUBLES WE CAN EXPECT FROM HIM? WHETHER CONSUMER COURT WILL REDRESS OUR GRIEVANCE?
SAKSHIJAHARI@YAHOO.CO.IN