• Common terrace rights and feasibility of formation of a society

We are 4 flat owners in a building that has and a compound wall with 4 gates access to the car parking area.
Are we entitled to have a set of keys to all 4 gates?

What are our common terrace rights?

Is it possible to form a society to address common needs and interests since we are only 4 owners or can we resort to an MOU only?
Asked 4 years ago in Property Law
Religion: Christian

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14 Answers

1) you have right to access to common terrace as it forms part of common areas for benefit of all members

2) as far as formation of society is concerned since you are only 4 owners it would be diffciult to form society

3) In many states, including Delhi and Maharashtra, ten flat-owners are enough to promote a co-operative housing society.

4) keys to the gates should be with security guards

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

Each and every owner who has acquired car parking rights is entitled to a separate car parking and respective keys to enter through the gates.

As it is only four members, the formation of society will be of no use. Thus, a common understanding between all occupants shall suffice.

Rajaganapathy Ganesan
Advocate, Chennai
2085 Answers
8 Consultations

4.9 on 5.0

Dear Sir/Madam, you have entitled to have a set of keys to all 4 gates, and also common terrace rights, you have to make it MOU in this regard. Not possible to form society, a society will formation minimum 7 members required.

C. V. Jadhav
Advocate, Bangalore
545 Answers
18 Consultations

4.7 on 5.0

you can enter into MOU for running the affairs of association

Ajay Sethi
Advocate, Mumbai
87911 Answers
6207 Consultations

5.0 on 5.0

See formation of futile exercise for four apartments it will create unnecessary compliance. Make an agreement/ MOU for maintenance of the common area and the common facilities.

Since the terrace is common area all have equal rights to access and use the terrace

Since the keys can either given to security if any or all the apartment owners can individually have the keys.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. All the Four owners can prefer to form & register a Residents Welfare Assocaition (RWA), for mutual services and benefits. It is not possible to form a Society with Four members.

2. AFTER above let the RWA hold a meeting of all the members and decide on the various problems & solutions for the same, which should be duly resolved and recorded.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

1) You can go for Apartment formation and have equal rights on parking and terrace rights.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

Dear Client,

MOU is sufficient to create understanding. Also, shortage of members to form society, min. 10 members required.

Proportional terrace & land right, 1.4th each.

If separate entrance for each flat, so single keys right.

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

Your question: Are we entitled to have a set of keys to all 4 gates?

Answer: Yes you all are entitled to keys of all the 4 gates since parking area is the common area and nobody has sole rights over it;

Your question: What are our common terrace rights?

Answer: All are entitled to the terrace rights. Many HC judgments have said that there cannot be one owner of the terrace;

Your question: Is it possible to form a society to address common needs and interests since we are only 4 owners or can we resort to an MOU only?

Answer: You can execute an MOU, but it will not be binding. Nonetheless make an agreement/contract, on stamp paper and notarise it. You can also make an agreement and register the same so that nobody faces any difficulty in the future.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

1. since there are only 4 owners, a society under the co-operative societies act or condominium under the apartment ownership act, cannot be formed.

2. For forming a society atleast 10 members are required and for forming a condominium atleast 5 members are required

3. however you can form a private limited company of the 4 flat owners since a company only requires 2 members for its formation. However there would be several compliance issue which a private limited company is required to adhere to and comply with

4. so i suggest you can form an association of persons and record the terms and conditions in a memorandum of formation of association of persons. An association of persons is not required to be registered with any authority

5. the aforesaid memorandum can detail out the various rights and liabilities of the 4 owners

6. further the keys to the gates giving access to the car parking can also be agreed to be retained by each owner under the aforesaid memorandum

7. similarly the 2 owners can be authorised for a certain period for taking care of the common needs and the rest 2 owners can be authorised by rotation

8. the terrace will remain a common area and no owner can claim exclusive ownership over the same

Yusuf Rampurawala
Advocate, Mumbai
6880 Answers
79 Consultations

5.0 on 5.0

Dear Sir,

You cannot register a society as it required 7 members. The law relating to terrace etc is as follows:

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Owning or occupying the terrace of a housing society building is unfair and illegal. The builder/developer has no right to sell the terrace.

Some developers of co-operative housing societies resort to the unfair practice of selling the rooftop / terrace. It has also come to light that in some housing societies, owners of the flats at the top floor claim ownership of the terrace and dissuade other owners from using the same. Both these actions are contrary to the stipulations as per law.

According to Section 4 (1A), (iii), (viii), (x) and Section 10(1) of Maharashtra Ownership Flats Act, 1963, the builder/developer has no right to sell the terrace. The builder also does not have the authority to sell the terrace of a building. As per law, all open spaces in a building, including the terrace is a common easement for the benefit of all the members who are entitled to enjoy the same as shown in the Municipal Corporation records. No single member can appropriate and deprive others of the benefit of common easement. When the BMC sanctions a building plan the terrace is not taken into consideration for the purpose of calculation of Floor Space Index as it is for the use and benefit of all the members (flat owners) of that society.

Owning or occupying the terrace of a society building is not permitted by law and if any body does that it is totally illegal. The law and BMC rules are amply unambiguous and clear in this regard and there is no provision at all under which the terrace of a society building can be sold or bought. There has been a landmark judgment delivered by the Honorable Mumbai High Court in 1999 in this regard while adjudicating on writ petition No. 4577 of 1985, in the matter of Smt. Ramagauri Keshavlal Virani V/s Om Walkeshwar Triveni Co-operative Housing Society Ltd & others. Adv. Vinod Sampat, an expert in Co-operative Housing Society matters is also of the same opinion and says that no person can own, sell or buy the terrace of a Co-operative Housing Society building.

Hence, any one who indulges in such unfair and illegal practices does so at his own peril because it has got no legal sanction and is always subject to litigation; a person doing so will be on the wrong side of law.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

Apartment owners association can be registered under Tamil Nadu Societies Registration Act, 1975 and Tamil Nadu Co-operative Societies Act, 1983. Previously, a minimum number of seven persons was needed to form an association; however the number has been brought down to five persons as per the provision of the Tamil Nadu Apartment Ownership Act, 1994. The registration involves the drafting of memorandum and bye-laws.

A memorandum should contain the name of the society, objects of the society, names, addresses and occupations of the members of the committee. The memorandum has to be signed by at least five members of the committee.

The byelaws have to contain the basic particulars relating to the Association, like the name of the Association, date of formation, address, jurisdiction aspects, etc. along with particulars like the objects and the activities of the Association and the business hours of the Association.

Clause regarding how amendments could be done in the byelaws and particulars relating to dissolution or winding up of the Association is advisable to be included.

In the absence of minimum required members, association cannot be formed. Therefore on a mutual note and agreement, the members can arrive at a MOU addressing the common problems, solutions for the problems including usage of all common areas which will include the terrace rights of each member too.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

No owner can claim exclusive rights over common areas or amenities. Only a legally formed owners' association can manage such things.

Swaminathan Neelakantan
Advocate, Coimbatore
1920 Answers
20 Consultations

4.9 on 5.0

Society cannot be formed in 4 members. You can amicably decide between yourselves and execute an Mou.

Prashant Nayak
Advocate, Mumbai
27245 Answers
88 Consultations

4.4 on 5.0

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