Terrace forms part of common area for benefit of all members
2) you are entitled access to terrace for installation and maintenance of water tanks , dish antennae
3) file suit seek court orders to direct top flat owner to give you access to terrace
Roof right
I have my watet tank installed at the rooftop its pre-installed since I purchased the ground floor. But later on I came to know that the dealer has sold the top floor with the roof right even before my purchase. Now there is tough situation for me. The owner of the top floor do not allow me to use the rooftop and also threaten me to remove the water tank, they are also not allowing me to install the dish and camera on rooftop. Rather they have constructed a room and a toilet on the portion of the rooftop without any permission from authority. The owner of middle floor have the same situation like me as he is also not allowed to visit rooftop. The property is three floor building and sold floor wise to three different persons and located in Punjab region. What should I do? There is no other place to install the water tank as pipes are fitted in such a way. Can roof right be sold 100 per cent exclusively to someone? Is there similar cases available for reference?
Asked 6 years ago in Property Law
Religion: Hindu
17 Answers
1. If the roof top was sold prior to the roof right being given to you then dealer had no competence to give you any right on the roof top in the first place.
2. Your remedy is to file a criminal complaint of cheating against the dealer and get a FIR registered against him.
3. Unless your sale deed is perused it is not possible to formulate an opinion on whether you can claim any rights on the roof top.
No it can't be sold 100 percent to any body. You need to approach the civic authority or competent authority having authority of the same on the said premises and seek direction from that authority. Otherwise moving court will be final option
See firstly your sale deed need be perused as to what rights are granted over common area. See since the roof top in this is is kept as common area or not accordingly it can be seen. Though roof generally forms part of common area for access to all and for installation of overhead tank.
You can file suit seeking access to the roof top and rights of keeping tank and fitting antenna .
Also if the room on same is constructed without approved plans file complaint before municipal authority.
1. There is no legal bar to sell the roof right to one particular flat owner but that does not mean the access to roof for essential service like water connection , plumbing, electricity etc.
2. So if for water related issues you are not allowed to fix the problem you can file both civil suit for injunction or criminal case of wrongful; restraint.
You can file a suit for mandatory injunction with reliefs for easement rights also.
You may first issue a legal notice to him instructing him to refrain from indulging in such illegal activities failing which, you may inform that you will proceed legally against them.
1. Roof /Terrace are classified as "common open spaces" and "free of FSI", under the regional town planning act /laws. Hence it cannot be Sold /Purchased etc.... It would be grossly illegal. Usually due to apathy & ignorance, Roof is sold by Builders /Landlords, causing distress /discontent to other residents of the building.
2. Make a written complaint about the circumstances, with photographs and other documentary evidences, the the local Collector's office and to the local Municipal office.
3. Last solution is to file a Civil Court dispute and seek relief for usage of roof and restraining order on persons claiming ownership rights of roof.
Roof comes under common area, cannot be sold or put to exclusive use by any flat owner. You can file civil suit in court to obtain common roof rights. Roof has common right and on land - each have 1/3rd share each.
Room and toilet is illegal or for common use.
Please provide me any verdict of HC/SC on similar case about roof right. If possible.. Thanks for the responses
Asked 6 years ago
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) Sri Ramagauri Keshvlal Virani vs Walkeshwar Triveni Co-Operative Society
court held that terrace use cannot be restricted to the disadvantage of the other residents.
Delhi District Court
Kuldeep Kumar & Anr vs Madan Lal & Anr on 7 June, 2016
. Section 13 of Indian Evidence Act, 1882 talks about easement of necessity. According to Section 13, easement of necessity arises only where by a transfer, bequest or partition, a single tenement is divided into distinct and separate tenements and any of separate tenement is so situated that it cannot be used at all without enjoying an easement over other such tenement or tenements.
"Easement may relate to a right of way, a right to light and air, right to draw water, right to support, right to have overhanging eaves, right to drainage, right to a water course etc. Easements can be acquired by different ways and are of different kinds, that is, easement by grant, easement of necessity, easement by prescription, etc. A dominant owner seeking any declaratory or injunctive relief relating to an easementary right shall have to plead and prove the nature of easement, manner of acquisition of the easementary right, and the manner of disturbance or obstruction to the easementary right. The pleadings necessary to establish an easement by prescription, are different from the pleadings and proof necessary for easement of necessity or easement by grant. In regard to an easement by prescription, the plaintiff is required to plead and prove that he was in peaceful, open and uninterrupted enjoyment of the right for a period of twenty years (ending within two years next before the institution of the suit). He should also plead and prove that the right claimed was enjoyed independent of any agreement with the owner of the property over which the right is claimed, as any user with the express permission of the owner will be a license and not an easement. For claiming an easement of necessity, the plaintiff has to plead that his dominant tenement and defendant's servient tenement originally constituted a single tenement and the ownership thereof vested in the same person and that there has been a severance of such ownership and that without the easementary right claimed, the dominant tenement cannot be used. We may also note that the pleadings necessary for establishing a right of passage is different from a right of drainage or right to support of a roof or right to water course. We have referred to these aspects only to show that a Court cannot assume or infer a case of easementary right, by referring to a stray sentence here and a stray sentence there in the pleading or evidence."
In RSA of Delhi high court,
Delhi High Court
Jagdish Kumar Kapoor & Anr. vs Anil Rohtagi & Ors. on 5 March, 2012
Author: P.K.Bhasin
It was held thus:
plaintiffs under Order XII Rule 6 CPC merely on the appellants - defendants' plea in one of the paras of their written statement that the respondents - plaintiffs had a right to go to the terrace for repairing/cleaning water tanks kept there ALSO ignoring their stand that that right of having an access to the terrace could not be exercised by the respondents - plaintiffs after entering into the flat on the third floor belonging to them (appellants-defendants )?
You can refer sri Ramagauri Keshavlal Virani vs Walkeshwar Triveni Co-Operative Society.
You don't need a case it a law point and you can set law machinery in motion after your complaint
1. Rood rights cannot be sold to any person as it comes under common area of building.
2. And if the roof rights are sold to someone even then he cannot remove the water tanks or other necessity from roof due to some dispute.
3. You and owner of middle floor can file suit for permanent injunction against top floor owner for allowing you to visit top floor and restraining him to remove any water tank from roof top.
1. Every judgment of SC/HC is on the facts of the case. There can be no straight jacket formula.
2. As I said before, nothing can be said without perusal of sale deed.
terrace forms part of common area for benefit of all owners.You can file a suit against the owner court give orders for accessing the common areas.
Vinay Kumar Sharda vs Sh. Praveen Kumar Kohli & Ors on 17 March, 2015
Vinay Kumar Sharda vs Sh. Praveen Kumar Kohli & Ors on 17 March, 2015
Too many citations.