• Builder illegally selling flats without completing proper formali

Our land was given to a builder to construct an apartment. As per the agreement it's not a joint venture,POA was given to construct and sell and give us approx. 30% of the constructed area. It's an ancestral property where we are 6 parties. My questions are:
1. Total constructed area as per the agreement was 45000sqft. whereas builder has increased it by another 1600sqft. and as per agreement we are entitled for 30% of the additional constructed area. But he is denying that completely. What is our option?
2. One of my uncle who was one of the parties in that agreement passed away last year. His wife, a son and two married daughters are now the legal heirs of the portion as there is no will. After he passed away last year his wife,son and 1 of the daughters gave their POA to the builder and the other daughter couldn't make it as she was pregnant. But the builder has completed multiple sale deeds without her authorization post my uncle's death. Kindly advise on the actions we can take against the builder and the parties in that sale deed who bought the flats?
Asked 7 years ago in Property Law
Religion: Hindu

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6 Answers

1. yes , if any floor area is increased then you are entitled to the additional area in the same ratio in which you are getting from the original agreed area.

2. The sale deed would be irregular and I am not sure how the buyers have purchased it. The daughter who ahs not signed the PAO may challenge the deed . You have though no locus standi to challenge the deds.

3. if the developer is refusing to share with the additional area you may file case in the consumer forum for the same.

4. irrespective of what you call this agreement it s nothing bu the Joint Development Agreement.

Devajyoti Barman
Advocate, Kolkata
22920 Answers
498 Consultations

5.0 on 5.0

1) it i s necessary to peruse your development agreement entered into with builder to advice

2) if builder has carried on additional construction you should be entitled to 30 per cent of area of additional construction carried out

3) file suit and seek injunction restraining builder from selling the additional area

4) the uncle daughter can also file suit to set aside sales carried out by builder wiothout her consent and claim her share

5) you can also obtain court directions to order builder to deposit sale proceeds of additional construction carried out in court

6) seek appointment of court receiver

Ajay Sethi
Advocate, Mumbai
95215 Answers
7611 Consultations

5.0 on 5.0

If the agreement is strictly 30% of the constructed area, and no mention of any additional constructed area, then the builder is not entitled to give you 30% of 1600 sq ft., as the agreement does not stipulate this.

None the less, if you wish to raise a dispute, then Arbitration clause would be provided for in the agreement, file a dispute there against the builder and raise this point. In the meanwhile, seek for stay against the builder from selling away further flats until the dispute is resolved.

Since the property is ancestral, the second daughter of your uncle should have also executed a POA in favour of the builder, since this is not done, the second daughter can question the sale deeds executed by the builder without obtaining her signature, she too can bring a stay from a competent civil court against further sale transactions from the builder in respect of this project.

Kiran N. Murthy
Advocate, Bangalore
1298 Answers
194 Consultations

5.0 on 5.0

1. What do you want to do now? all areas of malpractice by the builder should have been sealed while drafting the agreement and getting it executed by the builder. All sale should have been agreed to be executed and registered by you.

2. However, file a Title Suit claiming specific performance by the builder as per the agreement.

3. Also lodge a police complaint against the builder alleging that he has cheated and defrauded you by extending the construction and refusing to allot you your area of 30% thereof.

4. Your said cousins can file a declaratory suit praying for a declaration that the said sale deed based on the said invalid POA of your late uncle is void at law with a direction upon the registrar to cancel the registration of the said sale deed.

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

1. Total constructed area as per the agreement was 45000sqft. whereas builder has increased it by another 1600sqft. and as per agreement we are entitled for 30% of the additional constructed area. But he is denying that completely. What is our option?

If your agreement contains this clause, you can very well point it out in your legal notice demanding your rightful share in it after which you can initiate proper legal action through court for recovery.

2. One of my uncle who was one of the parties in that agreement passed away last year. His wife, a son and two married daughters are now the legal heirs of the portion as there is no will. After he passed away last year his wife,son and 1 of the daughters gave their POA to the builder and the other daughter couldn't make it as she was pregnant. But the builder has completed multiple sale deeds without her authorization post my uncle's death. Kindly advise on the actions we can take against the builder and the parties in that sale deed who bought the flats?

The affected party i.e., the legal heir who has not authorised the builder to sell her share through a POA deed shall sue the builder for this and can even obtain an order of injunction in further issues as well as she can file a suit for cancellation of the alleged sale deeds. She can even prefer a police complaint against the builder for having sold her share in the property without her knowledge or consent.

Consult a local advocate and initiate proper legal action agaisnt the builder in this regard.

T Kalaiselvan
Advocate, Vellore
85416 Answers
2239 Consultations

5.0 on 5.0

1. If the agreement mandates that the builder should give you 30% of the additional area then you should file a suit for specific performance against him in the civil court.

2. Since the fresh POA was not executed by one of the heirs to your uncle she can file a suit for declaration of the sale deeds as illegal in the civil court as she alone is the aggrieved party.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

5.0 on 5.0

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