• Parking, Society Formation, Leakage Issues, Land in the building

I live in a building in Mira Road. Residents of my building are facing 4 major troubles and are looking for the best possible path to go forward:

1. We received the OC in November 2017. Builder has applied for society formation in March 2018 (Residents were not aware of this. we submitted an RTI and got the info). However, we have not been called for a meeting for forming a committee. What should we do? Should we request for a handover. Lot of flats in the building are still with the builder//investors/their family members. There are more than 500 flats. Of which. 150 are occupied by residents, about 150 have been given on rent and rest are still unoccupied.

2. A lot of residents are already facing leakage issues in their flats. After the handover of society, can we make the builder responsible for fixing the leakage issues? What are our rights in this area?

3. The building has 2 phases. In phase 1 there are 4 wings and phase 2 there are another 4 wings. phase 2 is almost ready but OC is not received. We expect it should come in the next 2 months. There is an land area in the building (below the ramp of our building), which actually is part of phase 1. However, we have heard from builder's sources that the builder is planning to set up the water treatment plant of Phase 2 on this land. Can he do this? Can we oppose this? What should we do? Where should we look for more details?

4. The builder has collected money for parking space in cash. There is no mention of the parking space in the agreement. He has given an allotment letter to everyone who has paid for the parking on his letter head. Is this allotment letter legally binding after society formation? What about people who have not bought the parking? Will they be not allowed to park their car in the space in the building?

5. As per the plan, the builder has mentioned 2 stacked parking on Ground level and 1 stack parking on podium level. In some of the legal documents it also has a drawing of 2 cars parked (showing 2 stack/levels) on ground level and 1 car parked on podium level. However, he is selling and allotting 3 stacked parking at ground level and 2 stacked parking at podium level. Which means, one car needs to be removed to move other cars in each of the parking line. I foresee this as very inconvenient to the residents. However, since people have already paid the money, they are just accepting what has been given to them. Can the residents oppose this and ask him to allot only 2 parking on ground floor and 1 on podium?

We are looking for a legal advisor who can help us with the above mentioned issues and help us through the whole process of handover.
Asked 5 years ago in Property Law
Religion: Muslim

2 answers received in 30 minutes.

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7 Answers

1. for society formation, the builder will become the chief promoter and the flat buyers will become the promoters. A meeting has to be called for appointment of chief promoter. However in case of a new society, the builder is by default the chief promoter. So let the builder form the society. The flat buyers may be required to sign application forms for being admitted as society members. Request the builder to provide you with a copy of society bye-laws. In most cases the model bye laws of society are adopted 

 

2. if there is leakage or seepage in the flat then the flat buyer can individually invoke the defect liability clause in the sale agreement and require the builder to rectify the defect or the buyer can rectify the defect himself and ask the builder to reimburse the expenses. If the project i.e. your phase 1 is registered with RERA, then you can also file complaint with RERA 

 

3. you need to check the sanctioned building plans to ascertain whether the water treatment plant of phase 2 has been sanctioned to be built on the land forming part of phase 1. The building plans can be obtained from the municipality. Also if the builder has amended the plans without consent of the flat purchasers then that will be illegal. However if at the time of booking of flats and execution and registration of agreement, the builder had made known to the flat buyers that such a water treatment plant will come up, then no consent of flat buyers is needed

 

4 & 5 - you say that OC was received in Nov 2017. So you need to check whether this project was registered with RERA? Rera came into force from 1.5.17. Now under RERA the builder is allowed to sell car parking. But prior to RERA, under MOFA, the builder could not sell car parks. The car parkings would form part of the common areas which were required to be conveyed to society on handover of management by builder to society. Thus the society would become owner of such car parkings and it is upto the society whether to accept the allotment made by the builder or to do a fresh allotment. If the car parks were sold by the builder under MOFA regime then that is illegal. However post RERA, he could sell the car parks, except open car parkings which come under common areas. 

Yusuf Rampurawala
Advocate, Mumbai
7509 Answers
79 Consultations

5.0 on 5.0

1) builder will call EGM to elect a managing committee in the society , submit audited accounts for approval of members 

 

2) builder is bound to rectify leakages 

 

3)builder can construct water treatment plan on land 

 

4)allotment letter is not binding on society . after formation of society parking slots can be re allotted 

 

5) you can oppose allotment of parking slots which is not as per sanctioned plans 

Ajay Sethi
Advocate, Mumbai
94689 Answers
7526 Consultations

5.0 on 5.0

1) You can get this leakage problems solve from builder as you have paid one time maintenance charges to builder at the time of purchasing flat.

 

2) You can create Building wise or Phase wise society and take those building under society possession from builder. And can frame proposed society for time being and apply for all registration society in front of co-operative housing society Registrar.

 

3) Regarding parking there must be general parking arrangement in the society space. Please confirm with builder in this regards.

 

For further details do contact me via consultation call.

Ganesh Kadam
Advocate, Pune
12926 Answers
255 Consultations

4.9 on 5.0

Builder is liable only upto certain period after the building is formed .if u have any written communication with builder regarding leaking problem then it would help u and builder will be bound to repair it.

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

1. Builder alone cannot from the society so there must be some residents of the society who have signed on the formation of the society application as the initial subscriber.

2. This is mandatory for the Builder to register a cooperative society with the registrar of societies and handover the society to the apartment owners to manage it after sometime as the entire society is not inhabited till now that is the reason that builder is holding the management of the society if you feel that there are sufficient occupants in the society and you can run this society then you have to approach to the register for the guidelines so that the Builder can handover the society to you for the formation of Executive committee to run the society .

3. The apartments are coming with  the warranty for repair of 2 years of possession you have to approach to the Builder to correct and fix it in case there is any problem you have to approach to the consumer forum or state consumer dispute redressal Commission as the case may be.

4. Allotment of parking is legally binding when it is allotted on the letterhead of the Builder because this space is not registered but this is part of the apartment.

5. Practicallythe stagged  parking is not possible in the apartments if the parking is not managed by the Builder and the Builder has the opportunity to sell the parking lots till it is not handed over to the executive committee of the resident welfare Association after the handing over every society to RWA Builder have no  authority to  sell any unallotted parkings

 

 

Vimlesh Prasad Mishra
Advocate, Lucknow
6852 Answers
23 Consultations

4.9 on 5.0

1.  You can organise the other flat owners for a meeting and to form a society on your own on the basis of the strength you people command.

 

 

2.  Since the maintenance is being done by the builder till date, you can make him responsible to fix the problems.

 

3. You can first peruse your own wing's map and ascertain that this portion of land belongs to your wing alone after which you can issue a legal notice as a society to the builder warning him not to use this portion of land for the other wing after which you can follow it up through legal process and gt a stain on his proposed act.

 

4. Selling car parking space is illegal and he allotment letter issued by the builder will not be valid once the society is formed because the common areas shall come under the society, hence you may not rely upon this.

 

5. Yes the residents can object to this arrangement made by the greedy builder and he can be dragged to consumer forum also for this unjustified act

 

 

T Kalaiselvan
Advocate, Vellore
84890 Answers
2190 Consultations

5.0 on 5.0

Go against the builder in Consumer court or rera as per your agreement.

Prashant Nayak
Advocate, Mumbai
31930 Answers
179 Consultations

4.1 on 5.0

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