Open, stilt parking spaces are common areas, builders can’t charge extra: SC

[RajaRC]

Open, stilt parking spaces are common areas, builders can’t charge
extra: SC

http://www.indianexpress.com/news/open-stilt-parking-spaces-are-common-areas-builders-cant-charge-extra-sc/676177/0

Krishnadas Rajagopal
Tags : realestate, india
Posted: Thu Sep 02 2010, 02:38 hrs New Delhi:

Flat purchasers need not shell out extra money from their savings to
buy parking spaces, both open and closed, from property developers at
the time of sale.

“Open-to-sky” areas or “stilted” (covered) portions of their flat
complexes, usable as parking spaces, cannot be sold separately by flat
builders/promoters/developers as “garage”, the Supreme Court has
ruled.

These spaces are part of the “common areas” in flat complexes and not
“saleable independently as a flat or along with a flat”, the court
said in a judgment.

The verdict sets a precedent even as the apex court took note that
builders/promoters/developers were “indulging in malpractices in the
sale and transfer of flats and the flat purchasers were being
exploited”.


The judgment delivered Tuesday by a bench of Justices R M Lodha and A
K Patnaik comes in the backdrop of interpreting the legislative intent
behind enacting the Maharashtra Ownership Flats (Regulation of the
Promotion of Construction, Sale, Management and Transfer) Act, 1969.

The court made the observations while dismissing an appeal filed by
Mumbai promoter Nahalchand Laloochand Private Limited, seeking
permanent injunction against a co-operative housing society to whom
they had sold a few properties in Anand Nagar, Dahisar (East) in the
city. They accused society members of “encroaching” into 25 stilt
parking spaces in the building.

The court said promoters will not be put to any financial prejudice by
treating parking spaces as common areas since “he (promoter) is
entitled to charge price for the common areas and facilities from each
flat purchaser in proportion to the carpet area of the flat”.

“Can a promoter take a common passage/lobbies or say staircase or the
RG area out of purview of ‘common areas and facilities’ by not
prescribing or defining the same in the ‘common areas’?” asked the
court and illustrated how the Maharashtra law mandates the promoter to
describe the “common areas and facilities” in the advertisement as
well as in the agreement later with the buyer.

“The promoter is required to indicate the price of the flat, including
the proportionate price of the common areas and facilities. If the
promoter does not disclose the common areas and facilities, he does so
at his own peril,” the bench observed.

The court clarified that “stilt” or covered parking spaces were
“common areas”, and would not cease to be so even if the promoter
fails to describe them as common spaces.