• Share in the land of condominium apartment

Dear sir,
We have condominium of 6 apartment of 1000 sq ft equal size built on approximately 6000 square feet land. There are 6 car, 12 two-wheeler and 24 bicycle space marked on sanctioned plan in Pune corporation. Every apartment has 1/6th share as per declaration. Ours is registered condominium society

But in decleration deed builder marked the sanction plan and allotetd half of terece ,1200sq ft side margin plot as garden and 3 car park space to 1 apartment owner. Is it legal? If yes then i do not have 1/6th share on usable land. I have only 1 car park. Can i challange this in court?


As per plan there is allotetd space for 12 two-wheeler but builder allotetd this space to 1 appartment as car park. Is it legal?
Asked 6 years ago in Property Law
Religion: Other

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18 Answers

Builder cannot sell terrace , garden area and car parking slots 

 

you have to file suit to set sale of terrace ,garden area, 3 parking slots  to one flat owner

 

take the plea that you have one sixth share in plot  

Ajay Sethi
Advocate, Mumbai
99899 Answers
8153 Consultations

Builder does not have special powers that he can sell common areas for benefit of one family 

 

since slots  are reserved for 2 wheeler it should not be sold as car parking slot 

Ajay Sethi
Advocate, Mumbai
99899 Answers
8153 Consultations

1. It would be a prosecutable offence to deviate in ANY way from the sanctioned plan, under the MRTP Act and the PMC Act.

2. You alone can file a local Civil Court case on the builder, for violating the sanctioned plan and the related losses caused to you & your rights, for the illegal trade practice, negligence & deficiency and seek directions to the PMC and the Builder to restore the spaces, according to the sanctioned plans.

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

Yes you are correct 

Ajay Sethi
Advocate, Mumbai
99899 Answers
8153 Consultations

Void neither such allotment is binding on society. You can complain to registrar. Last remedy - direction from court. NO deviation from the sanctioned plan permitted. YOU can also complain to sanctioning authority. Builder seize with any authority once society is formed. Further common facilities cannot allotted/sold for exclusive useto any flat owner including terrace. 

Declaration by builder will stand illegal. Is this statement correct - Why waited for so long to challenge this. 

Yogendra Singh Rajawat
Advocate, Jaipur
23085 Answers
31 Consultations

The builder cannot do any such thing contrary to the approved plan. 

You first ensure if your allotted space has been shrinked or encroached by the alleged act of builder,  if so you can drag him to court of law and seek justice. 

T Kalaiselvan
Advocate, Vellore
90099 Answers
2503 Consultations

You first go through the master plan,  the clauses for 2 or 4 wheel parking in your sale deed and ascertain if there's any discrimination in your allotted space after which you can contemplate to initiate legal action as per circumstances. 

 

T Kalaiselvan
Advocate, Vellore
90099 Answers
2503 Consultations

Your understanding is right that the builder cannot show partiality in  this regard neither he can do injustice to other members by his greedy acts. 

He can be sued if he doesn't allot you the property as per sale deed. 

T Kalaiselvan
Advocate, Vellore
90099 Answers
2503 Consultations

1. "ALL" types of parking spaces and terrace are all classified as "common open spaces" & Free of FSI, under the Regional Town Planning Act and the Fire Act, and CANNOT be "legally" Sold or Purchased or Registered or Leased. Parking spaces can be allotted (most of the times by illegally collecting money, which is a criminal offence).

2. By virtue of above, ANYTHING contrary /adverse to the above is illegal and legally not enforceable.

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

No it can't be allotted as car park. You can file a complaint in the same for violation of the sanctioned plan

Prashant Nayak
Advocate, Mumbai
34602 Answers
249 Consultations

there cannot be any exclusive right in favour of one member/family in respect of a particular area which comes under limited common areas 

the common areas are to be shared by all the members each having an equal undivided share

by restricting the particular space in favour of a single member, the builder has converted the common areas [to be shared by and for benefit of all members] as the exclusive property of a single member thereby giving it the recognition of an independent apartment, which is not permissible 

Yusuf Rampurawala
Advocate, Mumbai
7906 Answers
79 Consultations

1. Yes it is illegal because builder cannot sell car parking to anyone.

2. Yes you can challenge this in court. 

3. Builder cannot sell parking for two wheelers for car parking.

4. Declaration deed executed by builder is voidable and for that you have to file suit in court.

Mohit Kapoor
Advocate, Rohtak
10686 Answers
7 Consultations

No doubt under definition of limited common areas builder can by declaration reserve portion for benefit of few apartment owners 

 

2) as per said definition builder can sell half of terrace , garden , 3 parking slots to one flat owner 

 

3) however you are at liberty to challenge sale  of half of terrace area , garden , 3 parking slots to one apartment owner .you can seek quashing of declaration as it include certain areas of the complex as “common areas and facilities” within the declaration, thereby effectively depriving the apartment owners of their rights over the same

 

4) it should be your case that these are the necessary and essential facilities which have to be provided to the flat owners by the developers, for the common use of the flat owners. 

 

Ajay Sethi
Advocate, Mumbai
99899 Answers
8153 Consultations

You have asked for an opinion from this forum,  there's no assurance to you that  you that you will get a satisfactory reply neither there's any yardstick to measure someone's satisfaction level. 

The charges you have paid was for the services you availed.

You will remain a silent spectator when the builder openly cheat by lakhs of Rupees whereas you resort to mean tactics just because you were not satisfied with the reply in terms of the service rendered to you for few hundred rupees. 

T Kalaiselvan
Advocate, Vellore
90099 Answers
2503 Consultations

In my view the apartment owner in whose favour the reservation is made is only given a right of exclusive use of the limited common areas

That would not mean that other apartment owners do not have an undivided share in such limited common areas

Because even if there is any exclusivity in favor of a particular apartment owner, the area still falls under the head of 'common areas', however with limited use by other apartment owners, barring the owner for whom this reservation is made

And Sir regarding your grievance

Please understand that all answers given here are based on a preliminary basis. Many a times the query requires extensive legal research. Sometimes even the act is not clear. So you cannot expect to have a perfect answer from the lawyers here by paying a pittance! All answers here are probable and based on the very limited information given by the querist. The lawyer tries to answer them even without seeing the papers. For proper consultation and opinion you have to approach a lawyer independently. Even if you go for an opinion from a senior lawyer, the opinion is not without a disclaimer!! Many points are highly contentious which only the court can resolve. 

FYI the pittance which you pay to the platform is shared among the answering lawyers. So for instance if you pay 600 and 10 lawyers answer your query, then the platform shares that with the answering lawyers after deducting its commission. So all the lawyers are essentially answering on a honorary basis. 

Admin- whateger pittance has come to my wallet for answering the query, kindly take it back and refund it to the queriest. I cannot say for other answering lawyers on this. 

Yusuf Rampurawala
Advocate, Mumbai
7906 Answers
79 Consultations

If the declaration is of 1995, then now it's too late to challenge because it will be deemed that even if there were certain irregularities by the builder in the earmarking of spaces in the declaration in violation of the sanctioned building plans, and there was no objection all this while from the apartment owners, then the doctrine of acquiescence will apply and it will be deemed that the apartment owners acquiesced and waived their right to object against such allotment

Yusuf Rampurawala
Advocate, Mumbai
7906 Answers
79 Consultations

This mean that where more apartments included in single project, builder can specify that this portion will be for exclusive use of this apartment owners. Common area for x apartment owners and excluded y z apartment owners from any use.

Yogendra Singh Rajawat
Advocate, Jaipur
23085 Answers
31 Consultations

Common areas are all areas which are outside the flat areas. 

Prashant Nayak
Advocate, Mumbai
34602 Answers
249 Consultations

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