• Whether Terrace of a residential cum commertial building can be sold/ leased by the builder?

What are the rights of the Flat owners on the open terrace of a residential Cum commercial building? Whether the builder can sell / lease to the terrace to any third Party. In our case, builder has leased the terrace to a Company for erecting a Tower on the terrace. What is the remedy for the Flat Owners. Please advise.
Mahesh Raikar
Asked 4 years ago in Property Law
Religion: Hindu

4 answers received in 30 minutes.

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12 Answers

terrace forms part of common area for benfit of all members

2) builder cannot sell / lease terrace to third party

3) if builder has leased terrace to company for erection of tower file suit seek court orders to direct removal of tower from terrace

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

1. Terrace is classified as "Common Open Spaces" and CANNOT be sold /purchased /leased by ANYBODY. It shall be a criminally prosecutable matter, under the local Regional Town Planning Act, the local Civic Act and the Fire Act.

2. Terrace usage rights are not limited to only single/certain person/s. It would amount to encroachment and usurping the mandatory common open spaces, under the above Laws.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

1. First see whether the flat owners have relinquished their roof rights over the roof.

2 if not then it is being a art of common area and facility can be put under restriction of common access.

3. Even if the flat owners have relinquished their roof rights then also on the ground of health hazards they can oppose installation of such tower and seek legal remedy of injunction from civil court of law.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

This is my response to you:

1. Send the builder a legal notice immediately;

2. If it is at belated stage then file a complaint in the consumer forum;

3. Since terrace forms the common area of the building it cannot be sold or given on lease to anyone;

4. The society can also collectively take action against the builder;

5. You can get a stay and/or injunction order on the construction of the builder;

6. The simple reason being the terrace is a common area of the society and no individual also has a right on it;

7. Also all the pipes and tanks are kept on the terrace, therefore the builder cannot sell or give on lease;

8. You all flat owners should take legal action.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Mahesh I feel that you are one of the flat owner in the building and therefore you have posted this query. See legally speaking you have to take out the documents you executed while purchasing the flat in the building that would clarify the position as to whether you/flat owners have any right to access the common area of roof top. In case the documents are silent on this, you can certainty take up action against the erection of tower on building. Even otherwise you can take up the action against the erection of tower in your building for safety and other reasons.

Better would be to have detailed discussion.

SHRI GOPAL VERMA

ADVOCATE ON RECORD

SUPREME COURT OF INDIA

Shri Gopal Verma
Advocate, New Delhi
312 Answers
5 Consultations

4.0 on 5.0

1. what builder has done is not permissible in law

2. terrace is a part of common areas

3. that cannot be leased and has to be conveyed to society

4. if no OC is received for the project, then file a complaint with RERA

5. terrace is for the common enjoyment and benefit of all flat owners

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

hello,

it all depends upon the registration deed in which it must be mentioned the status of the terrace. the terrace usually belongs to the flat owner who lives below the terrace unless stated otherwise. go through the registration document in order find of the status of the terrace.

regards

Rahul Mishra
Advocate, Lucknow
13762 Answers
65 Consultations

5.0 on 5.0

Maharashtra Ownership of Flats Act, 1963 “MOFA” in section 10(1) and Section 4(1A) (a) (iii), (viii), (x) makes the intention explicitly clear. It states that a developer has no authority or right to sell the terrace to any individual which is the common easement of all the residents.

2) Mr Justice D G Deshpande of Mumbai High Court, on writ petition No. 4577 of 1985, decided on 5-7-1999 in the matter of Smt. Ramagauri Keshavlal Virani V/s Om Walkeshwar Triveni Co-op housing society Ltd & others. held no person can own the terrace of the society building as it is not permitted by law and hence is completely illegal. When the BMC passes the building construction plans the terrace is not calculated in FSI calculations as it is for all the members of the society

Ajay Sethi
Advocate, Mumbai
87976 Answers
6207 Consultations

5.0 on 5.0

hello,

Maharashtra Ownership of Flats Act, 1963 does restrict the rights of the promoter in the block or building constructed for flats or to be constructed for flats to which that Act applies. The promoter has no right to sell any portion of such building which is not flat within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organization; the only right remains with the promoter is to sell unsold flats. you will have to see whether this act applies to Goa as well. I do have a judgment but it is of the State Consumer Disputes Redressal Commission, Mumbai.

regards

Rahul Mishra
Advocate, Lucknow
13762 Answers
65 Consultations

5.0 on 5.0

A terrace or rooftop is a common area of in a residential society which is for the enjoyment and benefit of all its members. Although it has been seen that many developers resort to selling or giving exclusive terrace rights on payment, the practice is illegal.

It is untenable in the eyes of law where one resident gets the right to use the rooftop to the disadvantage of others. If residents choose to wage a legal battle, this may land the developer and the erring resident in soup.

A community hall, a play area, a garden, a stairway, a terrace and elevators are all shared areas and have to be made accessible to all the apartment-owners without any ownership issue.

Therefore the builder has no rights to erect a tower in the common terrace.

You may issue a legal notice to the company as well as the builder to remove the owner from the common terrace.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

Please support the views by Judgement of Hon Supreme Court or Hon. High Courts.

In my view, the terrace rights cannot be sold. It ought to be a common property of the society/flat owners collectively since it should have common access. It is also a serviceable area for maintenance, etc.

Group Captain Ved Kumar vs Swaran Marwah & Anr. on 19 September, 2008

IN THE HIGH COURT OF DELHI AT NEW DELHI

+ RFA 300/2006

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

While purchasing the flat. Read if there is any clause for terrace rights... In most of the cases there will be no terrace rights to the flat owners... You can only complaint against builder if that tower create nuisence ND disturbance...you may contact me for more information ...

Nishant Bhadoria
Advocate, delhi
73 Answers

4.8 on 5.0

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