• Unfair car allotment by builder

Dear Sir/Mam,
   We had a property land in Chennai. We entered in to JDA (Joint development agreement) with a builder with 50% share agreement. 

We as land owner wanted two 3-BHK in first floor; and builder initially planned for two 3-BHK in 2nd floor. As per JDA the slit area (ground floor) was decided to be shared as 50%. 

Due to some reason; the builder changed his plan to go for THREE 2-BHK in second floor (got official plan approvals & we too agreed - as it was not affecting us). We updated the JDA & registered it again.

But while allotting the car parking in Slit area; he is not ready to give the 50% share. Though our JDA still says that: 50% of slit area will be shared to land owner.

1) Can we raise this as a legal concern against the buider?

2) Builder was also un-fair in allotting the car parking slot. (MAIN Concern) For all the 3 flats owned by builder; the cars can be taken out with-out disturbing other cars. But for the 2 flats owned by the land-owners; he has allotted the car parking in such a way that: we need to move out one car; to take another car. We are really dis-appointed with this. Can this be raised as 'Unfair allocation of Slit area'.

We went for multiple discussions with the builder; but we could not resolve it. 

Please do share your expert views; to resolve our concern. Thanks
Asked 1 year ago in Property Law from Hong Kong
Religion: Hindu
1) the terms of agreement are sacrosanct 

2) if as per agreement 50 percent is to be your share in stilt car parking builder cannot unilaterally refuse to allot you your share 

3) further allotment of slots should be with your consent 

4) builder cannot unilaterally keep the best slots and allot you slots where it is difficult to park  

5? there must be arbitration clause in contract 

6) issue legal notice to builder and invoke said clause for resolution of disputes 
Ajay Sethi
Advocate, Mumbai
23122 Answers
1214 Consultations
5.0 on 5.0
1. yes you can raise this as a legal concern as per your agreement. Get a legal notice issued to the builder.
2. You can ask the builder to abide by the terms and conditions of the agreement. A suit for specific performance on the part of builder to comply with the terms may be filed but it is advisable that if the matter can be resolved after issuing a legal notice, that would be better.
3. A perusal of the agreement would be required for further advice as regards resolution of the said unfair allocation of slit area.
Shaveta Chaudhary (Sanghi)
Advocate, Chandigarh
821 Answers
60 Consultations
5.0 on 5.0
1. This is a common problem which arises if he development plan is not executed keeping all these future problems in mind,

2, In the development agreement it should have been mentioned that after registration of your flats, builder's flat will be registered and you shall register all the flats including builder's share,

3. Similarly the car parking slot also should have been mentioned,

4. However, send the builder a legal notice and insist fot 50% of car parking slit area

5. If he does not comply with, file a specific performance suit againsr him and do not co-operate with him in registering the flats allocated to him unless your claim is fulfilled.
Krishna Kishore Ganguly
Advocate, Kolkata
12043 Answers
228 Consultations
5.0 on 5.0
Hi, if the Builder does not ready to allot the land lord 50% share than it will amount breach of  contract so you can file suit against the Builder for allotting 50 % share as agreed by in Joint Development Agreement.

2. First issue a legal notice and thereafter file a suit but in the Joint  Development Agreement if there is Arbitration clause is there then you have to initiate Arbitration Proceedings. 
Pradeep Bharathipura
Advocate, Bangalore
4104 Answers
133 Consultations
4.3 on 5.0
1) Can we raise this as a legal concern against the buider?

Yes, you can raise this issue with the builder by first communicating to him in writing to him and get his acknowledgment of having received the communication, get his reply, dont worry even if he is not replying, secure the evidence and issue him a legal notice demanding the 50% share of land in the ground floor as was agreed and reduced to writing as conditions in the JDA quoting the relevant clause in the said terms and conditions of the JDA; 



2) Builder was also un-fair in allotting the car parking slot. (MAIN Concern) For all the 3 flats owned by builder; the cars can be taken out with-out disturbing other cars. But for the 2 flats owned by the land-owners; he has allotted the car parking in such a way that: we need to move out one car; to take another car. We are really dis-appointed with this. Can this be raised as 'Unfair allocation of Slit area'.

The builder cannot take away the car parking area as per his convenience, it can be common and not one suiting his benefits alone, in the same legal notice you can demand the fair distribution of the car parking space properly to all the flat owners of the complex.

The legal notice may not invoke response or proper response hence you may subsequently approach either consumer forum for  deficiency of service citing breach of T & C of the JDA and also you may approach civil court for property relief by filing a suit for mandatory injunction. 
T Kalaiselvan
Advocate, Vellore
13934 Answers
127 Consultations
5.0 on 5.0
1. The builder is bound to act in accordance with the agreement. If the car parking has not been allotted in consonance with the JDA the builder has acted in violation of the law.

2. You can issue a lawyer's notice to the builder as a warning to make him carry out his contractual obligations. 

3. If the builder does not comply with the agreement even after notice from your lawyer then you may move to court to legally compel him to perform his obligations and also seek damages from him. 
Ashish Davessar
Advocate, Jaipur
18061 Answers
446 Consultations
5.0 on 5.0
A. Generally, the builder has no right to allot  the Carparking area because of this area would be considered as common area. In your case, the builder has bounden duty to provide proper common area to the customer for peaceful enjoyment without any disturbance and hassles. Once the builder hands over the project to the association that the association divide parking space and allot to owners.  No extra charge is collected by the association. OR

B. Issue a legal notice to the builder to provide the proper car parking areas as common peaceful enjoyment as enjoying all the other flat owners. Later, if no proper response from the builder side, you can approach the Consumer Forum under the deficiency in the Service.
 
B.T. Ravi
Advocate, Bangalore
733 Answers
29 Consultations
5.0 on 5.0

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