• Parking Space Allotment

We are staying in a society in Mumbai having 16 members and 9 designated spots of parking.

7 parking spaces are designated to 7 seperate members and one member hold two separate parking slots. We had applied for a parking 2 months back and purchased a car 1 month back but they have not alloted us the extra parking occupied by the member and instead telling us to either park outside or at inconvenient spaces where are car is getting damaged.

There was one member who had applied before us and not purchased a car as yet and hence allotment was not given. Please could you explain how the allotment system works and do we stand a chance to get a designated parking spot.
Asked 4 years ago in Property Law
Religion: Hindu

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14 Answers

Sir the society has power to allot the common space in case on member is holding two spaces and the society is not alloting you same file a consumer complaint against the society for deficiency and the member to allot you the society.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

If number of slots are lower than number of members then allotment of car parking slots has to be done by drawing of lots

2)society should cancel allotment of car parking slot from member who has 2 parking slots

Ajay Sethi
Advocate, Mumbai
87932 Answers
6207 Consultations

5.0 on 5.0

The allotment procedure w.r.t. parking must be prescribed in the rules, regulations and bye-laws of the society. I think they must be allotting parking on first come first serve basis. Pls see the rule for more clarity on this and to also find out whether or not two parking slots can be allotted to a single member. Based on your research, proceed legally.

Vibhanshu Srivastava
Advocate, New Delhi
9426 Answers
245 Consultations

5.0 on 5.0

hello

in a landmark judgment, the Supreme Court of India upheld a Bombay High Court ruling stating that parking spaces cannot be sold as independent real estate units.

The Court Held Following Key Points In Its Judgement:

The parking space either enclosed or unenclosed, covered or open cannot be a `building’.

It is a compulsory requirement to provide for parking spaces under the Development Control Regulations for Greater Bombay, 1991(DCR)

It is obligatory on the part of the promoter to follow the DCR. The agreement signed under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management, and Transfer) Act (MOFA), 1963 between the developer and the flat purchaser has to be in accordance to the model form of agreement (Form V) prescribed by the State Government. The model agreement does not require the flat purchasers to separately purchase the stilt parking spaces.

Any agreement signed between the buyer and developer under the MOFA gives the buyer certain rights and such rights cannot be diluted by any contract that is contrary to MOFA.

The stilt parking space is a common parking area available and the developer is obliged to provide the same under the DCR. It is not an additional premises/area that he is authorized to sell either to the flat purchaser or an outsider. It is part and parcel of the Society building and it cannot be separate premises available for sale. As soon as the Corporation issues the occupation certificate and the Society is registered, the building, as well as the stilt parking spaces, open spaces and all common amenities, become the property of the Society.

The stilt parking spaces cannot be put on sale by the developer as he ceases to have any title on the same as soon as the occupation certificate is issued by the Corporation and it becomes the property of the society on its registration.

The stilt parking spaces cannot be termed as `open/covered garages’ and Clause 2 of the Model Agreement–Form V provides for the sale of the covered/open garage in addition to the flat/shop.

It is immaterial if the purchase agreement does not include stilt car parking spaces in the common area of amenities. The stilt car parking spaces are part of the common amenities and it cannot be treated to be a separate premises/garage which could be sold by the developer to any of the members of the society or an outsider.

Under MOFA, the developer’s right is restricted to the extent of disposal of flats, shops and/or garages, which means that any premises which are included in the Flat Space Index (FSI) can be sold by the developer/promoter. The stilt parking space is not included in the FSI nor it is assessable for the Corporation taxes.

regards

Rahul Mishra
Advocate, Lucknow
13757 Answers
65 Consultations

5.0 on 5.0

You can get the allotment. Send your society (only if it is formed as per maharashtra co-operative societies act) a notice for the allotment of parking if they do not comply then approach co-operative court.

If society is not formed then nobody can stop you from parking in alloted spaces as only society or developer can allot space and every house owner has right to claim one parking allotment.

Abhilasha Wanmali
Advocate, Nagpur
1022 Answers
1 Consultation

4.8 on 5.0

Dear Sir,

The relevant rules are as follows:

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.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

It has been held in number of cases that Builder cannot allot Parking Spaces to flat Purchasers as Parking spaces are property of the Society and only Society can allot Parking Spaces to its Members, therefore any allotment by Developer is illegal and can be cancelled by Society

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

This is my response to you:

1. Firstly open your bye-laws of the society;

2. If the parking system is not as per the model bye-laws then you have been denied justice;

3. The parking is allotted on rotational basis;

4. It is primarily allotted through draw of lots of process;

5. So send the Management a formal notice;

6. If they do not respond then send a legal notice and make them speak to your lawyer;

7. Maximum you an approach Registrar and make a formal complaint.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Hello,

This depends on the bye laws of the society.

What does the bye laws of the society says in relation to the allotment of parking?

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. Under the Model Bye-Laws, Parking spaces are supposed to be allotted on YEARLY ROTATION basis. However this is usually not followed and is virtually not possible.

2. You may try your luck by putting the Society on proper legal notice and subsequently filing a grievance petition before the local Consumer Court, for relevant directions to the Society. There is no other easier way.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

1) Parking slots are allotted on "First come first basis"

What Society Bye-law says

.

79.(a) Member may hold Parking Space/stilt if he has purchased the same and he shall have a right to sell the same to transferee or other eligible member of the same society.

(b) The allotment of Parking Space/stilts shall be made by the Committee on the basis of “First Come First Served”, for unsold and available space in the society. The member shall have no right to sell or transfer the said allotted Parking Space/ stilts to anybody.

Restriction on parking spaces stilts Marking of parking spaces or stilts

80. No member shall be entitled to utilize more parking spaces/stilts than what is allotted to him by the Committee or which he has purchased.

81. Where any stilts have been built or open space in the Society’s compound is available for parking of cars, the Society shall number the stilts or the open space in such a way that no inconvenience would be caused to any of the member of the society. The Committee shall ensure that the space is used by the members for the purpose for which it is allotted.

Eligibility for allotment of stilts or parking spaces

82. A member ,having a motor vehicle, will only be eligible to have stilts or a parking space. No member shall normally be eligible for being allotted more than one stilt or a parking space for parking the car owned by him or allotted to him by his employer, or the firm of which he is the partner or the company of which he is the director. If any stilts or parking spaces remain un-allotted for want of applicants for allotment, a second or third stilt or parking space may be allotted to the same member who has earlier been allotted the stilt or the parking space. Such allotment of 2nd or 3rd stilts/parking space shall be made on year to year basis provided the same is not required by another member, who is not allotted even a single stilt/parking space.

83. In case, the number of vehicles of eligible members are in excess then the available parking space/stilts the managing committee. It allot such parking space /stilts by “lot” on yearly basis.

Applications for allotment of stilts or parking spaces

84. The member desiring to have a stilt or a parking space may make an application to the Secretary of the society giving necessary details. The procedure for disposal of applications for permission under this bye-law as laid down under the bye-law No.65 shall be followed by the Secretary and the Committee of the Society .

Payment of charges for parking of vehicles

85. Every member, who has been allotted the stilt or the parking space shall be required to pay the parking charges at such rate as may be decided by the general body of the society at its meeting, irrespective of the fact whether he actually parks his motor vehicle or not. Where a member has been allotted more than one stilt/ parking space, he shall pay parking charges in respect of every such stilt or parking space as decided by the General Body Meeting, but within the limits as prescribed by the government of Maharashtra from time to time.

Parking of other vehicles.

86. Every member having a scooter, a motor cycle or an auto-rickshaw shall obtain permission of the Committee for parking his vehicle in the compound of the society and pay the charges fixed by the General Body of the Society at its meeting, but within the limits as prescribed under the circular issued by government of Maharashtra from time to time.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

If the parking spaces are managed by the resident welfare Association it is up to their decision to alert the parking spaces to the members in case you have any issue with the resident welfare association in their services you have the right to approach to Registrar of the societies in this regard and complaint. You have another option to move to the High Court against the resident welfare Association has a mandamus writ petition for non allotment of the available parking space.

Vimlesh Prasad Mishra
Advocate, Lucknow
6848 Answers
23 Consultations

4.9 on 5.0

1. if the number of members is more than the parking slots, then parking is allotted by society on rotation basis, so that no member is deprived of parking and all members can enjoy parking space in rotation

2. but problem is many members must have bought the parking slots from the builder

3. the builder is not permitted to sell parking slots but then too they sell to make extra money

4. parking area forms part of common areas of society. so no member can claim any exclusive right over the same even though he must have paid money to builder to allot parking

5. the society when formed is not bound to follow the allotment of parking done by the builder. But in many cases the society passes a resolution ratifying the builder's allotment of parking

6. but such a resolution can be challenged when the parking slots and number of members are unequal

Yusuf Rampurawala
Advocate, Mumbai
6881 Answers
79 Consultations

5.0 on 5.0

Once a society is formed, it can make the rules accordingly and can re-allot the parking space to the flat owners as per rules. The allotment letter issued by the builder is not binding on the society to make bye laws in this regard. Parking space cannot be sold by the builder, it is a common space belonging to the society and only society can decide about its allotment generally it is first come first served basis or on draw of lots basis to its members alone and not for the tenants.

You can protest it either in the general meeting of the society or can make a representation in writing in this regard.

Let the society give its reply in writing expressing its inability to provide the parking space inside while a member is occupying two parking spaces.

You can report this matter to the registrar of housing societies for intervention and relief.

If that is also not very effective then you can either drag the society to the consumer forum or to the cooperative court seeking releif and remedy.

T Kalaiselvan
Advocate, Vellore
78089 Answers
1543 Consultations

5.0 on 5.0

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