• Questions around changing parking dimensions in an society

I stay in an apartment complex in Bangalore. Our sale deed mentions a builder representative as joint owner of the land. The sale deed mentions the flat and a parking as Schedule C property. However; dimensions are not defined for the parking in the sale deed. I did pay for the parking separately.

Another owner having parking adjacent to mine got the boundary line changed via the builder citing that the division is not as per the approved building plan, and that he did tell the builder about this before taking possession but they forgot to do the correction earlier. He reached out to me earlier; but I had refused. He said he would talk to the managing committee and the builder; however, he didn't inform me before getting the corrections done by the builder. The managing committee was not informed on the day of making changes as well. I didn't get to know about the corrections as I was away.

Can this correction be enforced by the builder if indeed the lines are not drawn according to the approved plan (I still have to verify that), or do I have a say in stopping such corrections?

Does the managing committee of my apartment complex association have the power to revert the corrections made?
Asked 4 years ago in Property Law
Religion: Hindu

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16 Answers

1) No managing committee do not have powera to change anything which is pre approved by builder and Municipal corporation.

2) Please check what type of documents are given as handover to management committee, if its as per your wish or what you have talk initially with builder at the time of purchase of flat and parking layout.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

Parkingdimensions has to be as perparking plans sanctioned by muncipal corporation

2) correction can be done by builder if lines are not as per sanctioned plans

3) if conveyance is done in favour of society then MC can revert the corrections made

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Dear Sir,

The Managing committee cannot revert the corrections made that too without your knowledge. It must be according to approved building plan only otherwise you may either approach RERA or Civil Court. The law is as follows

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Can car parking be sold under RERA?

Ravi Singh, 30, recently got the possession of his 3BHK flat in Greater Noida. The developer had made him cough up Rs 2 lakh for an open parking space which, under RERA, now forms a part of the common area. Under the new law, can developers sell parking space to home buyers?

The RERA or Real Estate (regulation and development), Act, 2016, under section 2(y) defines ‘garage’ as a place within a project having a roof and walls on three sides for parking any vehicle, but does not include an unenclosed or uncovered parking space such as open parking areas.

This is also for the first time that the Act explicitly defines common areas which include open parking area, basement, stairway, elevators, lobby area and parks.

Haryana RERA executive director, Dilbag Singh Sihag says that a developer is fully entitled to `sell covered parking but open parking cannot be sold. “If a developer has spent money on making a parking area then he would want to recover that money,” is his reason.

“RERA and MahaRERA only speak of covered parking space but the rules do not include open parking. Therefore, open parking area is not covered under the rules,” says senior Mumbai-based lawyer Dipan Merchant.

“This aspect has also been covered by MahaRERA’s FAQ No 9, wherein it has been stated that open parking area is included in the definition of common areas which need to be conveyed to the Association of Allottees after receiving OC and hence sale or allotment of open parking areas by promoters is not permissible,” says Sudip Mullick, Partner, Khaitan and Co.

Explaining further, Mullick adds that the FAQ No 9 permits sale of a garage as is defined in the Act and also sale of a covered car park as defined under the Maharashtra RERA Rules. “Open car parking cannot be sold under RERA, only garages can be sold,” he adds.

Further, the Ministry of Housing & Urban Poverty Alleviation, Government of India vide its FAQ’s dated 17 January 2017, clarified that in accordance with Section 2 (n) of the RERA Act, common areas include open parking spaces and thus, open car parking spaces cannot be sold to allottees.

Adding to this, Rahul Nahar, Founder, Xrbia Developer says that the draft model agreement published by RERA specifically covers consideration for covered parking but “it cannot be sold in isolation”.

Section 2 (n) of RERA defines common areas while 2 (n)(iii) defines open parking areas while Section 17 says the promoter is liable to transfer to the society title in the common areas and to handover the possession of common areas to the society which presupposes that it cannot be sold to an individual allottee.

But, what about stilt parking? Does it come under the definition of garage or common areas?

The Supreme Court in the matter of Nahalchand Laloochand Private Limited v/s Panchali Co-operative Housing Society Limited (2010) 9 SCC 536 has held that under Maharashtra Ownership of Flat Act, 1963, observed that the stilt area cannot be treated as a garage. The court further observed that parking areas (open to sky or stilted portion) cannot be excluded from the common area and facilities under MOFA.

In view of the definition of open to sky parking area or stilt portion usable as a parking space is not a garage within section 2(a)-1 of MOFA. The court observed that it is not saleable independently as a flat or along with the flat. “The Bombay High Court had also laid down a similar norm in a judgment. Stilt parking and open parking slots were not treated as garage, and the logical inference was that these could not be sold as a separate, saleable unit,” says Naredco president Dr Niranjan Hiranandani.

It is pertinent to note that RERA does not repeal MOFA and provisions of MOFA apply to the extent not contrary to RERA, adds Merchant.

Anshul Jain, Managing Director (India), Cushman & Wakefield, says that open parking areas form part of the common area, hence, can’t be sold but stilt parking does not fall under the ambit of garage. “Garage can be sold to the buyer independent of the apartment/unit.”

Stilt parking comes under the category of covered parking, says Hiranandani. Adding to this, Hardeep Sachdeva, Senior Partner, AZB and Partners, says, “The RERA rules in some states such as Haryana, Rajasthan and Maharashtra have recognized the concept of stilt/ covered car parking being provided along with the apartment/unit in the draft of the agreement to sell.”

Hence, we may conclude that open car parking is a part of common areas but garages can be sold under RERA. The jury is still divided on stilt parking.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

The dimensions has to be as per approved plans after approval the builder or the managing committee cannot alter it without permission of the concerned authority.

If the lines were not prepared managing committee can make lines but should be as per the conveyance of parking registered to you.

if the changes made by them are not as per approved plans then they can revert correction.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. Apply to the Municipal Corporation and first obtain sanctioned layout plan

2. The plan will reflect the placement of the car parks

3. If there is any deviation between the corrections made by the adjacent car park holder and the boundary shown on the layout plan, then you can definitely take this to the builder and MC and have the correction made by that other person deleted and request them to demarcate the car park as per the boundaries shown in the layout plan

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

This is my response to you:

1. The Municipal Corporation can decide upon the parking area according to the building plan;

2. The corrections can only be made via Rectification Deed;

3. If the builder changes the plan without telling you, that is doing activities behind your back and itself amounts to fraud;

4. Yes your managing committee should immediately write to the builder to revert the corrections made.

5. If the builder does not listen you must send out a legal notice.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Builder has to convey land on which building has been constructed in favour of society

Then society is absolute owner of land and can rectify car parking dimensions

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Sir RERA wont apply in you case if the parking is altered on letter stage and the dimension are different as mentioned under you deed for parking then you can file a civil suit against the builder and the neighbour who has changed such dimensions without consent and approval.

Managing committee referring the approved plans can make such changes if then also it refrains on acting file civil suit and take order from the court.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Firslty, sir forgot about the role of RERA now.

Secondly, it is the clear violation of the agreement which you must have signed with the builder.

Thirdly, if it is silent on the space of the parking then it has to be as it is meaning here by is that status quo.

Fourthly, let the court decide the space equally between all.

Sixthly, you please approach the civil court for the breach of the contract and for the injunction initially temporary plus with the permanent prayer also.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

1) Yes, Municipal approved plan and your parking area registered under that layout plan and assigned that particular parking area to you and same is handed over to you plus all documents is given to society or management committee.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

Whether or not the land and building are conveyed by the builder to the society, if there is any change done which is in deviance of the sanctioned layout plan, then you can approach the BMC and get that change reversed in conformity with the sanctioned plans.

If OC has been granted for the project then RERA will not apply

The fastest course of action is to approach the BMC. If it does not take any steps to reverse the changes which are in deviation to layout plan, then you can approach the High Court by filing a writ petition complaining against BMC that it's not doing its duty

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

According to the “Apartment Act” in most states, car parking is a part of the society’s common areas.

They are not a part of the Floor Space Index (FSI).

Developers can only sell this space if they can prove that they have used the FSI allotted to them to develop it.

So, if there are limited number of parking spots, than the managing committee decides the basis of the distribution in consultation with the members. Some take the first come, first serve route and often perform quarterly reshuffles of parking spot to ensure no resident enjoys exclusivity. At times, if this is not practiced then the residents claim ownership of the parking spot.

A pre casted car parking is the process of preparing the parking columns and beams separately and then framing them together as a structure or block at the construction site. In a layman's term, pre cast framing is constructing a building by attaching various pre build frames together.

People who buy apartments or flats check each aspect of the building right from the location of the rooms to the quality of furnishing. What they ignore is the place where they park their vehicles or in other words the parking lot. A parking space requires your attention.

The corrections what you refer to are internal arrangement and not maintainable when challenged in court of law.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

Does RERA apply to flats purchased during 2005-2007?

No, it is affected very recently and not having retrospective effect for the old buildings.

Does the builder have the right to change the boundary without notifying managing committee and me?

After the builder handed over the promises to the association, he has nothing to do with the boundary marking or car parking space or correcting the existing plans.

A builder has to provide a certain number of parking spaces basis the number of units of houses. As per a mandate from the Mumbai High Court, the builder is not allowed to sell parking spaces outside the FSI consumed. This has been confirmed by the Supreme Court of India too.

Parking space number is decided basis the Lay-Out Plan (LOP) as approved by the civic body (BMC). It is also under the Development Control Rules and under the Fire Act rules. The managing committee has to adhere to these and basis that allot parking spaces.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

It needs to be as per the building plan. Your managing committee cannot overide the building plans

Prashant Nayak
Advocate, Mumbai
27273 Answers
88 Consultations

4.4 on 5.0

Dear Client,

Let me clarify certain points made earlier.

This is my more answer specific response to you:

1. The Municipal Corporation can decide upon the parking area according to the building plan. Having said that, you must approach the corporation and retrieve the plans from them. You can also file an RTI, (being the owner of the flat and such information has to be in public domain) and retrieve the information from them. Therefore you will get the original building plans and even the corrected/changed/new ones if they are available;

2. The corrections can only be made via Rectification Deed. The Rectification Deed is used to correct all the errors in the Original Sale Deed. It is a supplementary Deed to change/alter the contents of the sale deed. In your case you can change the Schedule C of the Deed, provided the builder has agreed to execute and register the same with you. This rectification Deed can be used to rectify/correct all the errors/mistakes that have happened in the earlier deed/s or the building plans submitted to the Registrar. Therefore the rectification deed can be used to correct the document wherein the parking area/plans have been mentioned;

3. If the builder and your neighbour change the plan without telling you or the managing committee, that is doing activities behind your back and itself amounts to fraud. If the builder is changing the details of the plot or the parking area or the building plan after the sale deed, it is illegal and punishable by law. There seems to be some internal compromise between the neigbour and the builder to alter the building plans in such a clandestine manner;

4. Yes your managing committee should immediately write to the builder to and your neighbour, that without proper approval the neighbour and the builder cannot alter the building plans. If they done the same with permission/permit/clearance from corporation, then they should show cause on what grounds and show the proof of have they have done the same?

5. If the builder does not listen, you must send out a legal notice to him for unethically altering the building plans without informing the management committee and the owners of the flat;

6. You and the management committee can also approach the HC and get quicker relief by filing a Writ Petition against the builder and the neighbour.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

The response is not Mumbai specific.

It's just I mistakenly wrote BMC instead of MC.

In my view, you should approach your local MC (municipal corporation) and ascertain from them whether the changes made on site are in accordance with the sanctioned layout plans.

If the officers of MC don't take any action pursuant to your request then you can approach the High Court by filing a Writ Petition seeking writ of mandamus.

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

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