• Change of construction plan

I have booked a flat in Kochi in 2015 and 60% of the payment has been already made against approximately 40% completion of the project. The issue is, builder now proposes key changes to the original plan and has not taken any written consent from us. The following changes are now proposed by the builder:

1. One tower out of the original two towers is scrapped
2. Swimming pool, kid's play area and club house is now moving to the 14th floor and terrace area by scraping 14th floor apartment.

The proposed changes are not agreeable to me due to the high risk of safety on both changes, as the original foundation is not planned for a swimming pool on the top and the kid's play area on the top of the building will pose high risk for children.

Can I demand refund of the money so far been paid to the builder with interest and other compensations if any under this circumstances? What are the compensations I am eligible for?

The agreement provides 20% of the apartment price as termination fee, if it initiate from the buyer's end under normal circumstances. Does this come into force if I cancel the booking?

With the current pace of progress, the project cannot be completed within the period as per the agreement, which is October 2018 with a grace period of 6 months.

Can you please give a written legal opinion at the earliest.

Thanks
Asked 4 years ago in Property Law
Religion: Hindu

8 answers received in 1 day.

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16 Answers

The builder cannot make any changes to the original plan after the builder buyer agreement has been signed.

Once the agreement has been signed, prior consent of the buyers has to be taken for changing the original plan of the building/society.

You can file a complaint against the Builder in consumer Court depending upon the value of the case instituted for deficiency in services and unfair trade practices adopted by the Builder claiming complete refund interest as well as compensation for his actions.

Alternatively, you can also file a complaint under RERA against the builder.

Feel free to call.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

1) builder cannot change plans without consent of flat owners

2) you can demand refund of money paid with interest

3) builder cannot demand 20 per cent of flat costs as cancellation charges as change in plans has been done by him

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

You have the option to complaint in the RERA and as the builder have not taken the written permission from the allottees before making the substantial changes in the project. Section 14(2) of the RERA ACT prohibits any substantial change without the permission of allottee. Only minor changes are allowed.

You may claim refund , interest and compensation for loss due to changes in project under section 19(4) of Rera Act.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

In terms of the Kerala Apartment Ownership Act, this deviation in construction, change is layout is impermissible in absence of express consent from all the stakeholders.

Apprise the builder of the above position of law and if he is still adamant, seek a refund of your deposit and withdraw from his project. In case he denies your refund to you, file a case in RERA

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

has the amended building plans with above changes already sanctioned by the municipal corporation?

the first ground of your challenge is not tenable in the eyes of law

the second ground however is feasible and the changes made can be challenged as it raises safety concerns

if you terminate or cancel the agreement then the builder will require you to pay the penalty on termination by buyer as agreed in your sale agreement

since there is a grace period for completion of project, that ground too cannot be used by you for terminating the sale agreement

ideally the flat buyer can only challenge those changes by the builder which adversely affect the carpet area of the premises agreed to be sold and allotted to the buyer

let me check on the other grounds of challenge and get back to you

i assume the builder has registered the project with the RERA authority. If yes then which plans are uploaded on the RERA website? the originals plans showed to you at the time you agreed to purchase the flat or the amended plans with the above changes described by you?

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

Hello sir , as per RERA ( real estate regulatory authority) the builder has to obtain a written consent from more then 1/3th of allotees before making changes in the layout plan .. If he does so without obtaining such consent , the allotee can ask refund of his entire amount alongwith interest and compensation by filing a complaint at RERA ..You can contact me for issuance of legal notice ..Thank you

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

Firslty, when it has been mentioned everthing ove the agreement or over the brochure then you may have not to worry about anything.

Secondly, you should give him a legal notice as to the proposed changes are not agreed by you due to the reasons of safety and for not getting NOC from you.

Thirdly, if he returns the money then good otherwise file complain in RERA court now to avail the services.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

Sir file a Complaint before the RERA authority to seek refund and compensation as the builder has changed the plans without approval and this shall cause prejudice to you and it is different from the plans you agreed for this amount to deficiency and cheating and such major changes in plan cannot be done without consent.

Further alternatively you can also file a consumer complaint to seek refund and compensation for malpractice and deficiency in service by the builder, seek interest and litigation charges too under the complaint.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1. Is there any clause in the said agreement signed by you that the builder can make any change in the construction plan without your written approval?

2. If the builder is not free to change the construction plan then you can cancel the booking/agreement and ask for refund of the amount already paid by you with interest and damage.

3. Certainly you can send him a cancellation letter (provided the agreement signed by you does not have any clause which permits the builder to deviate from the sanctioned plan) and ask for refund of the amount paid by you with interest and damage within 30 days from the date of the letter which he will not oblige.

4. If he does not pay you the amount asked, you can file a complaint case before the RERA Tribunal (if the project is RERA compiant) or local District consumer Dispute Redressal Forum against the builder alleging deficiency in service and unfair business practice claiming the amount paid by you with interest, damage and cost.

5. Engage a local lawyer having expertise in this field.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

Hi,every project which has not recived OC ( occupation certificate) within 3 months from the implementation of RERA ( 2016) comes under the provisions of RERA and therefore the builder should have taken the consent of 1/3 of the allottes .. You are entitled to file a complaint with RERA

Hemant Chaudhary
Advocate, Gurgaon
4619 Answers
67 Consultations

4.9 on 5.0

You still have a case wide open as the act of the builder of locating the swimming pool as well as the kids play area at the top of the building doesn't amount to minor changes as per the agreement.

Morever, no acts of the Builder would be allowed as it can cause serious hazards to the children's lives.

Since the project is not registered with RERA, you can file a complaint with the consumer court for complete refund along with interest, damages and litigation expenses as the said changes cannot be accepted as they do not considered to be nominal or minor changes and are dangerous too, so cannot be enforced.

Siddharth Jain
Advocate, New Delhi
5930 Answers
101 Consultations

5.0 on 5.0

Builder cannot make major changes without your consent

2) terms of agreement are arbitrary one sided and in favour of builder

3) builder cannot constrict swimming pool , kids play area on 18 th floor without consent of members

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1. The said clause can be challenged being one sided. However, there is the said clause on which the builder can base to draw jurisdiction for changing the plan without your consent.

2. Your claim that byou had not gone through the contents of the agreement properly will not be of any use for you legally.

3. You have a good case but first of all it will have to be decided by the Court whether it is a minor or a major change of plan.

4. In the instant case, it will be prudent on your part to wait for the completion of the period when the builder was scheduled to handover the property as per the agreement since you know that the builder will not be able to complete his project with in the agreed period.

5.Once he fails to comply with the said delivery/possession term of the agreement you can file the consumer complaint case on both the grounds to ensure that if the siad change of plan is allowed by the court, you still stay entitled to cancel the booking for the builder's failing to comply with the agreed schedule of completion of the project/flat booked by you.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

Sir that clause allow only necessary deviations it doesnot mean that the builder shall alter the complete plan. the buyer even in presence of such clause is entitled to compensation and refund as it is malpractice by builder. ,

File a consumer complaint and complaint before RERA authority that ongoing project even if no says so not registered under RERA.

You have a good case such clause cannot bar you from taking a remedy.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

You must check whether he obtained approval from competent authorities for this alteration in the originally approved plan.

If not you may object to this and can refer the issue to the authorities by a written representation.

It is your choice to continue or cancel the booking.

If he has obtained permission for this alteration you may not have any reason to cancel the booking against this proposed changes.

In such a situation the cancellation of booking will be your decision hence you may be bound by the conditions therein.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

You first ask for the copy of the master plan approved by the authorities.

If you find these alterations are deviations beyond permitted limit, you may give your objections in writing and also confirm whether he obtained additional approval on this proposed changes in the construction plan.

After that you plan further action.

T Kalaiselvan
Advocate, Vellore
78104 Answers
1543 Consultations

5.0 on 5.0

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