I own a flat in an Apartment in Bangalore. The builder has constructed a Pent House and a Garden on the terrace and the builder himself resides in the Pent House. The access to the terrace garden is restricted by the builder. My flat falls below the terrace garden and facing seepage problems. After multiple requests to remove the Terrace Garden, builder denies the garden as the cause of seepage and doesn't want to remove the garden no matter what. I need expert advice on few points. 1) Is the terrace a common property or not ? can the builder restrict access to others to the terrace ? 2) How can I proceed legally to get the garden removed and make the builder repair the damages happened to the terrace.
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The terrace is a common property and no one can claim ownership to it exclusively.
The builder's garden on the terrace is illegal.
You may issue a legal notice instructing him to remove the same immediately failing which you may drag him to civil court with a mandatory injunction suit or to consumer forum for necessary relief and remedy.
You can also ask for compensation towards the damages caused.
Definition of common area includes "terrace" as per real estate act.
File a suit for mandatory injunction and damages.
Terrace form part of common area for benefit of all members
2) builder cannot restrict access to terrace
3) if no society is formed builder is bound to solve your seepage problems
4) you would need orders from consumer forum to direct builder to grant access to all residents to terrace garden / removal of terrace garden
1. if the terrace graded is built separately for exclusive use of a particular flat owner then terrace garden is not the common space.
2.So it is essential to know how this terrace garden is built , situated and placed.Moreover it is necessary to know what is mentioned in the title deed the facilities for common enjoyment of all the flat owners.
3. If the terrace garden falls in the exclusive zone of the developer then you may not get any legal intervention to remove it.However to deal with the seepage problem you can file case under section 133 crpc so the water leakage is taken care of.
4.To stop the water leakage problem you can file civil suit for injunction as well.
The common area under the society common floor registration has to be seen in case it is a pent house the carpet area of roof is included in flat and it can be restricted use by attaching it to flat. So Kindle check status of room in registration does it fall under common area or is a pent house attached area.
2) Send builder a legal notice for damages caused by him. You can claim damages as well as restrict him for proper enjoyment of property. If he doesnot reply legal notice civil suit of restricting him and damages can be filed.
1. Ordinarily, terrace forms a part of the common space. However, in this case, it will have to be seen whether the terrace(garden on it) is associated/attached with the pent house;or is a separate space. Peruse the approved layout plan to ascertain this.
2. Send a legal notice to the builder to set the things right. After that, you will have the option to approach the Consumer Forum to seek redressal of your grievances.
1) Every one has access to go on Terrace.
2) Builder alone can't build a garden on Terrace without permission of all members of the Apartment.
3) Ask builder to follow the rule of The Karnataka Apartment Ownership Act, 1972.
No Annual Compliances mandatory under the Act. However, governing powers need to be captured under the Bye-laws of the association.
The terrace garden is not common property if you are facing this seepage issue and even after the request it not been rectified by the Builder you need to approach local police station for the inconvenience you are facing in your apartment you may also complain to the registrar of societies to direct the Builder to rectify the problem or remove the garden.
I have come across many cases like this. Look for your property documents. You will get a answer of many of your questions. Still you can sue the builder for the damages done to your flat.
Please understand that terrace is a common property and builder cannot restrict others to access to the terrace.
To take legal action you have many options.
You can complain to Real Estate Regulatory Authority(RERA) in Karnataka. RERA help those people who suffer from the malpractices of builder and to safeguard the interest of people.
You can visit the following address in Karnataka to make a complainant against the builder-
1/14 3 cross mission road silver jublee block csi compound unity building, Bengaluru, Karnataka
You can also send a legal notice to the builder to comply with the norms. All legal action can only be taken once notice has been served upon the entity or individual you wish to take to court. It is only this process that legalises bringing a matter to court. The intimation sent is known as a legal notice.
A legal notice is, therefore, a formal communication to a person or an entity, informing the other party of your intention to undertake legal proceedings against them.
This notice, when sent, conveys your intention prior to the legal proceedings and thus, makes the party aware of your grievance. Many a times, a legal notice served will bring the other party on heels, and the problem can get resolved out of court too, with fruitful discussions on both sides.
And, if the other party is still not heeding to the grievance, one can always start the court proceedings after a particular interval, as stated by the law.
Although a legal notice can service as a purpose of negotiations between the parties and save time, effort and money that are usually spent in court cases.
SHRI GOPAL VERMA
ADVOCATE ON RECORD
SUPREME COURT OF INDIA
Dear Sir,
My answers are as follows:
1) Is the terrace a common property or not ? can the builder restrict access to others to the terrace ?
Ans. It needs lot of study. In short.
2.61 ‘penthouse’ means a covered space not exceeding 10 square metres on the roof of a building which shall have atleast one side completely open without any partition.
You may visit the following link.
2) How can I proceed legally to get the garden removed and make the builder repair the damages happened to the terrace.
Ans: If rules are in your favour then lodge a complaint or approach the HC for necessary directions or file a civil suit.
http://bbmp.gov.in/documents/10180/504904/Bangalore-Building-Byelaws-+2003.pdf/95195b55-ef62-4b68-bb9e-dc794344c18a
According to the property documents, the flat owners should not object to the construction of pent house on the terrace. The documents explicitly says terrace is not part of common area and the flat owners have no rights on the terrace. There is no mention of the terrace garden anywhere in the property documents. The building plan Approval document has no mention of terrace garden nor the pent house on terrace. I am not sure if the garden can be treated as attached exclusive to pent house or not as there is only one staircase and only one lift for the entire apartment. Please suggest if I stand any chance to fight to make the terrace common property and terrace garden illegal.
Builder cannot reserve terrace for his personal use and deny flat owners right to use the terrace
You can file complaint against builder before consumer forum and seek orders as advised herein above
1) As per the Bye laws its mentioned that the flat owner does not have any rights on Terrace.
2) If its not mention in the Building plan any where that on PentHouse or Terrace gardens should not built than builder does not have rights to built that garden on Terrace.
3) If anywhere its not permitted by corporation than you will have full rights to fight against him.
Please file FIR in the police for seepage terrace garden and complain to the registrar of societies for the direction in this regard you may also complaint in the RERA as well for using terrace as garden
If the contract agreement explitlly says so tha. You cannot as for terrace as common area. As the terrace gardan is there property om terrace you cannot.claim access as per agreement but you can claim compensation for you damage and removing the terrace gardan.
Dear Sir,
Normally BBMP approves approves for stlit+ground+four floors. The ;pent house is illegal and no rights on it. It can be demolished by the BBMP or Government. You may directly go the civil court and ask the Court to remove such illegal construction. More suggestions only in person.
Hi,
In the modern times, the terrace garden may have limited access to you for looking after the water tank. But, you can approach the court for removal of garden and also for damages . You can contest on the grounds stated by you.
Such contracts are opposed to public policy and against mandates of law. Follow my advice suggested earlier.
Look here, even if it presumed for a minute that the terrace garden doesn't constitutes a common area, then also the same cannot be used by it's occupier in a manner that it causes a nuisance to you. Thus, even if it is presumed that this terrace garden belongs exclusively to the penthouse owner, then also, if it is being used in a manner that is causing inconvenience to you, you can take recourse to Legal measures that are at your disposal.
Having said the above, by going through what You've said, to me the penthouse and the terrace garden appear to be unauthorized constructions; not being approved in the layout.
1. terrace is not a common property.
2. You will have to file a civil suit for permanent injunction in order to get the difficulty removed and thereuupon you may ask for compensation also.
Regards
Terrace can not be made in common property in light of the specific clause provided in the agreement.
though you may file a case against the builder in civil court
ALSO, you may serve him a legal notice before proceeding to file a case. It might be a case that he gets the things corrected in order to avoid litigation.
Regards
If the approval of building construction plan do not have sanction for constructing the pent house, you may submit a written complaint against this illegal construction to the local civic authority and also about the civil nuisance and damage to your property due to the terrace garden and water seepage weakening your property's ceiling.
If the builder is not heeding to your request to remove the terrace garden you may initiate all kinds of legal action against him including complaint against the illegally constructed penthouse.
1. File grievance complaint before the local Municipal office, for the leakages. The Garden cannot be removed. Check if the Terrace is a common terrace or a private pocket terrace.
2. ALSO can file complaint before the local Consumer Forum, and claim damages and compensation.
Keep Smiling .... Hemant Agarwal
