• Details of land and Undivided share of land and open allotted car parking

I have booked a property in Ahmedabad with a reputed builder. In agreement to sale, he has not mentioned block details of land along with said flat, however he has mentioned final plot no.(as per revised master plan signed by Govt town planner). On pursuing, he is not ready to amend agreement to sale but agrees to provide block details on company letterhead. In legal terms, Will it be okay?
Further, UDS (Undivided share of land) is also not mentioned in agreement to sale. Is it necessarily required to be incorporated?
Also he has taken 1 lakh extra for providing open allotted car parking but not mentioned in agreement to sale. Shall I take refund, kindly guide.
Asked 4 years ago in Property Law
Religion: Hindu

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16 Answers

1. Ask the builder if he is ready to give the block details on his letterhead then what is the issue in mentioning that in agreement?

2. Nevertheless have the details recorded on his letterhead and try to sneak in that letter in the agreement while registering it

3. If the plans are sanctioned and the total number of units that can come up are determined in the plans, then builder should ideally mention the UDS. But there is less likelihood of he doing so because he will want to exploit further FSI of the land using which more units can be constructed in future due to which the UDS per flat holder would reduce proportionately. He can only construct additional units in accordance with sanctioned plans and as per RERA provisions. For any additional construction he will require consent of flat buyers. So it's ok if he mentions in agreement that he is selling flat alongwith undivided share in land without specifying the exact percentage of UDS. Because he cant construct without further approved plans and without consent of flat buyers under RERA.

4. Open car park cannot be sold. It's a part of common areas. Seek refund. If he does not give refund, make online complaint on rera website. Only stilt car park and garage can be sold under rera.

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Builder cannot sell car parking slot

2) he can only allot car parking slot

3) details have to be mentioned in sale deed

4) further UDS should be mentioned

5) if builder refusing to mention these details cancel your agreement and seek refund from builder

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Dear Sir,

My answers are as follows:

On pursuing, he is not ready to amend agreement to sale but agrees to provide block details on company letterhead. In legal terms, Will it be okay?

Ans:It will be ok if he agrees to incorporate the same in the Sale Deed in future.

Further, UDS (Undivided share of land) is also not mentioned in agreement to sale. Is it necessarily required to be incorporated?

Ans:It will be ok if he agrees to incorporate the same in the Sale Deed in future.

PLEASE CHECK WITH YOUR BANKER IF THE PRESENT CLAUSES ARE SUFFICIENT THEN BE SILENT. THE USUAL CLAUSES REQUIRED ARE AS FOLLOWS:

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Clauses

There are several inclusions or what are called clauses in the sale agreement. It will describe the property, include contact details of the seller and the buyer, the negotiated price will be mentioned and also how this payment is being disbursed. The time frame for the payment will be included. There will also be a provision for the payment of stamp duty and for the account of the property title.

The clauses in a sale agreement are important because they outline everything that will go into making this a successful transaction, which is completely legally sound. The contract will tell you if the payment is to be made in cash, in part or an agreement for it to be paid partially in the future has been agreed on.

Some of the clauses will cover municipal taxes that are due by the person buying, as well as maintenance charges and in the case of an apartment being purchased payment towards the building society.

The legal basis

In India, the ‘Property Sale Agreement’ comes under the Indian Contract Act,1872, the Registration Act,1908, and the Transfer of Property Act. This is applicable no matter who the seller is — friend, family, acquaintance or complete stranger. A written agreement should be entered into in order to legally establish the authenticity of the property’s ownership. All of the deeds that you receive will have to be verified by an experienced and established property lawyer.

Should you be buying an apartment from a realty company then cross-check with the Registrar of Companies on the property being of freehold nature. The apartment should be completely free of any obligations monetarily and should not be mortgaged. It cannot be reiterated enough on the importance of having the documents looked into by a property lawyer.

Here is what should be included in your sale agreement

Payment terms: The onus is on both the buyer and seller to come to a mutual agreement on the price of the property and all other expenses that go towards the transfer of property. This has to be included and has to be agreed on by both the buyer and seller.

The time for the disbursement of the payment should also be included right up to the last instalment. The document will need to be scrutinised by lawyers from both sides and then signed by both parties.

Transferring of property title: For a loan to be sanctioned, the property title is important.

This should be transferred to the buyer when the seller has got in hand the amount agreed on. The transfer is the last step in the whole process of buying the property. The property will have to be registered in the buyer’s name by the seller at the local registrar office.

Stamp duty: These rates are fixed by the relevant authorities and can vary with each State. The onus is on the buyer to ensure that the property has been registered in his name at the rate that the government has sanctioned for the transferring of the property.

Sale deed: This follows the agreement of sale and is an understanding between the seller and the buyer. Its contents need to be scrutinised by experts multiple times before you actually sign on it.

With the right kind of legal help to support you, there is no reason to fear the complexities of the agreement of sale. It is something that you can easily surmount.

1. Earnest money

When a deal is struck, the buyer pays a token amount to the seller and agrees to pay the balance within a specified period. If he fails to make the balance payment within the time frame agreed upon, he foregoes the earnest money given to the seller

This agreement precedes a sale deed and protects the interest of all parties.

An agreement to sell always precedes the execution of a sale deed in a property sale transaction. This is a very important document in the process of acquisition of property. A well-drafted agreement to sell can help you avoid many issues that may come up at a later stage. This agreement contains the terms and conditions subject to which a property is being sold.

An agreement to sell is signed and executed by both the seller and buyer on a non-judicial stamp paper. It is a legal document. It needs to be signed by the parties involved or their duly authorised agents, and has to be witnessed as well. In case of a breach in the terms and conditions, it can be produced in a court of law.

An agreement to sell is the base document on which the conveyance deed is drafted. Usually, an agreement to sell is in writing. This is mainly an agreement entered into between parties to sell and purchase a property, and the attendant conditions to it. The document captures the understanding reached between the parties, which is binding on both, and is intended to protect the interests of both parties. It spells out the terms and conditions under which a seller is intending to sell a property, and the terms and conditions under which the buyer is intending to purchase it.

There is no statutory format for this agreement. These are some points that should be included in the agreement:

- Names of the parties involved in the sale and purchase transaction

- Residential addresses of all the parties

- Date and place of execution of the agreement

- Competence of the parties to enter into an agreement

- Competence of the seller to sell and transfer the property

- Rights and liabilities of the parties

- Details of how the seller acquired title to the property chain of prior ownerships and transfers of the property starting from the first ownership of the piece of land and then the subsequent constructions

- Exact location and description of the property

- Details of the property being transferred

- Details of builder of the property

- Details of other parts of the property. For example, other floors in case of a builder property (in case of a three storey house, how the other floors have been transferred out of the original property. A brief description may be given)

- Agreed sale amount

- Mode and time of payment

- Timelines for various acts and the responsibilities

- Mode of production and inspection of title deeds In case of an under-construction property, the stages of construction and the time limit for completion of construction

- Time limit for completion of the transaction

- Conditions and obligations to be complied with

- Details of who is bearing the cost of transfer

- Penalty and forfeiture clauses in case of default by either of the parties

- Conditions for delivery of possession

- Names, signatures and addresses of witnesses

Once this agreement is well drafted, the drafting of the sale deed becomes only a formality because it is merely an extension of the agreement to sell with some minor changes.

Ashish Gupta, Times Property, The Times of India, Bangalore

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

It is Necessary to mention the UDS in the agreement. Secondly builder can allot parking slot not sell the car parking slot. In case he refuses to mention the UDS in sale deed it's better to take refund. Insist on providing block details in agreement if he refuses better to take back the refund.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

1) SC has held that parking slots form part of common areas for benefit of all members

2) hence builder cannot sell parking slots . If he has charged you Rs one lakh it amounts to sale and you are entitled fir refund

3) if builder forms condonium then only you have UDS share in land

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1. since builder has taken money from you for the open car park, he has actually sold it to you in the name of allotment. that is not permissible. open car parks form part of common areas which cant be sold or allotted. please seek refund.

http://www.dnaindia.com/mumbai/report-parking-slot-bldr-gets-rera-stick-2574214

2. at the time of getting the document registered, just slide in that letter with the agreement. If the builder's representative or agent questions, just tell him that its the builder's paper only and needs to be attached to the agreement

3. as beforestated, even if its mentioned in sale agreement, that the flat is sold alongwith undivided share in land, that will suffice. The specific percentage need not be mentioned at the state of sale agreement. That will have to be mentioned when the builder forms a condominium and executes a deed of declaration wherein the specific percentage of UDS of each flat owner will have to be specified. All flat owners wont have equal UDS in the land. That would depend on the carpet area. Based on flats of different carpet areas, their proportionate UDS in land will also vary. Im sure the builder has not constructed only one type of flats.

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

See first of all the open car parking cannot he sold you can seek refund of extra amount given for parking if he doesn't refund the amount complaint with the RERA authority as per RERA law and the SC judgement an open car parking cannot be sold by the builder.

Further the the block details need to be compulsarily mentioned in the sale agreement if he ready to give that on company letter head then it can serve the purpose as annexed to sell.agreement but it should be mandetorily mentioned in the sell deed.

For UDS the builder can sell by mentioning that undivided share in land that will be ok the builder shall declare the undivided share while forming condominium and the share depends on the carpet area of flat.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

First of all under RERA builder before agreement cannot take any amount further if there is only draft agreement ask them to incorporate details in the agreement.

Even if he is giving it on company letter head signed by the authority holder of company or all director the same detail should be incorporated in sale deed there will not be in future sell if all.details are there in sale deed.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

Yes you can prefer a Writ Petition and claim monetary compensation from the State for violation of your fundamental right under Article 21 of the Constitution

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

1) You have to make agreement in details of plot area, survey number plus east, west, north and south what is location and who has the ownership that should also mentioned.

2) If you had paid one lakh rupees for parking that should be treated as flat money or if you had paid flat payment to the builder than take refund amount of parking from builder.

3) 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.

4) You are equivalent to the share of land asboer your purchased flat sq ft.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

Your question: On pursuing, he is not ready to amend agreement to sale but agrees to provide block details on company letterhead. In legal terms, Will it be okay?

Answer: Yes as long they give an undertaking for the time being that they will provide the block details on their letter head at specified date;

Your question: Further, UDS (Undivided share of land) is also not mentioned in agreement to sale. Is it necessarily required to be incorporated?

Answer: It is better that all areas of the land are mentioned so as to avoid confusion and misunderstanding;

Your question: Also he has taken 1 lakh extra for providing open allotted car parking but not mentioned in agreement to sale. Shall I take refund, kindly guide

Answer: The parking lot cannot be sold, please take refund of the same;

Your question: On basis of what rule/act can I get refund of car parking as it is already said by you that builder can't sell parking and can only allot it. Is there anything written in law?

Answer: On May 27, 2011 notification of Gujarat's home department clearly bans such sale or auction of common space (parking space) after the Supreme Court had ruled in 2010 in the case of Nahalchand Laloochand Pvt. Ltd versus Panchali Co-operative Housing Society Ltd. The notification is now part of the Gujarat Ownership of Flats Act 1973;

Your question: As builder is ready to mention block details on company letterhead , will it be okay for resale in future? If not how to make part of sale agreement /sale deed?

Answer: If you are worried about resale, then you can execute rectification deed on the same and get the block details incorporated in the original agreement or added as supplement to it. It is better to execute a supplementary deed and add the block number and register the same. The best option is to play pressure tactics on the builder and note down the block number (since it is not hard to find, just approach the Sub-Registrar's office);

Your question: Am i legally eligible for refund as UDS isn't mentioned in draft sale agreement? Further it is also not clearly written whether flat owners will have equal share in proportionate land.

Answer: During redevelopment or in case of government acquisition, if a building is brought down, then the buyer will get compensation on the basis of UDS i.e. the share of land which a buyer has on his name. While the land on which the building is built appreciates, the building itself depreciates in value. Therefore, an informed buyer or investor would definitely look at the UDS.

This is my response to you:

1. Make sure the builder is ready to accede to all your demands,

2. If he does not then, he is definitely hiding something;

3. If the project is RERA registered, then file a complaint;

4. There is some problem which the builder is not openly discussing with you, if RERA not applicable approach the consumer court;

5. If you feel cheated, then you can always approach the police.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

For Complete assurance you need the block details on the registered agreement to sale.

Prashant Nayak
Advocate, Mumbai
27275 Answers
88 Consultations

4.4 on 5.0

Hello,

All the promises and area that he is giving to you will have to be mentioned in the agreement to sale and not in the letter head.

Such promises on a letter head are not legally enforceable.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

You may send a legal notice to him for refund of the car area and if he does not respond then file a case in the consumer forum for unfair trade practices.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

Sale of car parking space is illegal.

But the builder may not care for the law because generally such realestate sharks dont bother about law or rule, they will manage with bribes when there arises a problem from any quarter, if not they will continue to enjoy their arrogance on such issues.

The sale agreement should contain the clear cut picture of the UDS and boundaries your property is bounded by.

This arrogance especially after you have entered into the agreement will dominate till the end, i.e., till he is executing the register sale deed while handing over possession.

You may have to come across many such bitter experiences with this kind or atrocious builders.

If you are not satisfied with the behavior of the builder especially if he is not cooperating with such vital issues, you have a choice to cancel the booking asn seek refund of entire booking amount as the builder has breached the conditions of agreement.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

There is a supreme court judgement on the illegality of the sale of car parking space. Moreover he is selling open parking space which is totally unjustified and atrocious.

According to the “Apartment Act” in most states, car parking is a part of the society’s common areas. Since the purchase of parking slots has been deemed illegal, the transaction to purchase would become null and void. Once the housing society is registered, it becomes the owner of all the common spaces of the apartment complex including the parking spots.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

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