• Developer asking more money for increase in super built up area

Dear Sir/Madam,
 I booked a flat in one of the projects in Nagpur with Empyrean sometime in 2012. The unit area which I agreed was 1050 Sq ft in agreement, I paid all the amount (21 Lakhs + Taxes) all on time, and at the time of possession they ask for 1 Lakhs more saying there was increase in super built up area for my unit by 50 Sq Ft. There are couple of things to mention here
1)Builder or Developer didn't put me in loop about increase in area, they mentioned at the time of possession. No question about taking permission but not inform me earlier
2)The carpet size is same, the actual increase is in super built up.
3)The area which they increase is Balcony, and i can understand they did this to make extra money

Here is what I signed with them as ATS clause which reads as under.
3 (a) It is understood and agreed by and between the Parties that the lay-out plans of the said Project as seen and accepted by the Allottee(s) / Purchaser(s) are tentative and subject to alterations and modifications by the Vendor Company, the Architect and / or any competent/sanctioning authority before or during the course of development and the Allottee(s) / Purchaser(s) agrees that the Vendor Company shall be entitled to effect suitable and necessary alterations/modifications in the layout plans without any objection/claim from the Allottee(s) / Purchaser(s) and it shall not be necessary on part of the Vendor Company to seek consent of the Allottee(s) / Purchaser(s) for the said purpose.
 (b) The dimensions / sizes / carpet area / unit area of the Said Residential Unit are subject to variations within reasonable limits and may vary up to 10% of the size as stated above. 

The points which are raising question in my mind are.
1. How can they ask for increased super area?
2. What option I have here, can i go against them in consumer forum or send them legal notice or pay them the amount they are looking for?
Asked 7 years ago in Property Law
Religion: Hindu

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7 Answers

1) terms of agreement are arbitrary and one sided and loaded in favour of builder

2) for any increase in super built area consent of flat owners is required

3) you can file complaint against builder and seek orders to deliver possession of flat to you and to set aside demand of Rs 1 lakh made by builder

4) also seek litigation costs and compensation for mental torture undergone by you . case s before consumer forum take over 2 years to be disposed of

5) in the alternative pay Rs 1 lakh under protest take possession of flat and then subsequently file complaint before consumer forum and seek refund of money paid by you

Ajay Sethi
Advocate, Mumbai
96803 Answers
7810 Consultations

Sir, as per the builder buyer agreement, the final super carpet area is finalise at the time of possession..there is slight increase as they have added A balcony.. You have a liberty to approach consumer court and challenge the extra demand .. My suggestion is that you settle it with builder . As the amount is not so much and proceedings may cost you equally

Hemant Chaudhary
Advocate, Gurgaon
4630 Answers
67 Consultations

1.If the area to be in your possession indeed increases then you are liable for payment of extra area.The clause mentioned in the agreement also supports the claim of the developer.

2.You can always file a case before the consumer forum but considering the clause in the agreement you have reproduced I do not find much merit in the case if filed in consumer forum.

Devajyoti Barman
Advocate, Kolkata
23198 Answers
510 Consultations

Dear Concerned,

At this stage it is suggested to pay the amount what ever the developer is asking for and take the possession.

Post possession and registry file refund of money along with cost at the concerned consumer court.

Filing any litigation at this point will lead to further harassment by the builder and your possession will be delayed.

Best of luck

Atulay Nehra
Advocate, Noida
1311 Answers
58 Consultations

1. The builder cannot increase the area without the consent of the buyer. The buyer can in such circumstances either refuse to pay the amount sought or pay it under protest.

2. However, the clause extracted by you here is an escape route for the builder. Within the sweep of the clause the builder was under no obligation to obtain your consent prior to making a change in the layout plan. There is an implicit duty, however, on the builder to inform the buyer about any conceived change, but the failure to inform the buyer is a mere irregularity, which does not vitiate the contract.

Ashish Davessar
Advocate, Jaipur
30763 Answers
972 Consultations

1. Balcony is inside your flat and is not considered as super built up area. The builder has very cleverly and aptly has entered the clause in the agreement which makes it binding on you to accept any such alteration of the carpet/unit area of the flat for which your consent will not be necessary.

2. Frankly speaking, you hardly have any remedy based on the the said agreement which you have entered in to against such increase in area of construction without taking your consent though you can file a consumer complaint before your local District Consumer Dispute Redressal Forum alleging deficiencyt in service and unfair business practice and try your luck.

3. If the builder has not taken any fresh plan from the architect or got the earlier plan altered by the Municipal Corporation for given reason, you can claim that the said increase in area was not necessary for which you shall not pay.

Krishna Kishore Ganguly
Advocate, Kolkata
27453 Answers
726 Consultations

Builder needs to provide proper documentation on why the area increased and how old and new layouts will change.

Argument that during booking it was signed; "that builder can increase\decerease area" will not work without proper facts from Builder.

Builder need to prove it why the area is increased and where is it going to be reflected"

All builders are aware of this normal practice and hence they craft their BBA accordingly. It will surely have one clause that legally binds you to accept the final size.

Some very profitable way to increase size is to increase balcony size, add few recesses here and there, add few storage space below the box window and so on.

So what builder propose is, the area sold to you is tentative and it will be measured at the final deliverable and accordingly the final size of the apartment will be decided. Technically the area can increase or decrease, both way is possible. However, knowing the way it works in India, there will be only one way.

If you want to know the correct law governing the issue, you may issue a legal notice through a local lawyer to the builder seeking his explanation for seeking additional amount in the name of increase in super area which was not in the sale agreement and deny the payment until he quotes relevant clause in the agreement. He will certainly refer the matter to his legal department or lawyer who will quote the relevant provisions of law, which if not convincing you may decide to proceed legally as per the same law which has been quoted.

These days the developers/builders take the purchasers for a good ride by mentioning lot of technical terms in order to indirectly extort money from them on one or the other pretext, so it is buyer who should question each an every aspect that involves cost.

T Kalaiselvan
Advocate, Vellore
87004 Answers
2335 Consultations

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