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I have Purchased a Flat in a apartment 4 years back.. Now I am.hearing the builder wants to construct one more house on the current terrace..my flat is in 2 and floor.. The proposed construction is on 4th floor ..This new Construction is legally allowed?.. Will.this not affect the life of my flat ? We are Totally 7 Residents in the Apartment
Asked 4 months ago in Property Law
Religion: Hindu

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11 Answers

If it's legally allowed you can't stop the same. You can object only that the same was not their in your approved plan when you got the same. 

Prashant Nayak
Advocate, Mumbai
26719 Answers
79 Consultations

4.4 on 5.0

Hi, Builder can't construct the 4th Floor and it is violation of Sanctioned Plan. If the Builder has started constructions then all of the owners can protest it and lodge a complaint in the local authorities.

Pradeep Bharathipura
Advocate, Bangalore
5374 Answers
306 Consultations

4.5 on 5.0

Builder needs to get building plans sanctioned by muncipal corporation for carrying on further construction 

 

further builder needs approval of other flat owners for carrying on additional construction 

 

file RTI application and obtain copy of building plans sanctioned by muncipal corporation 

Ajay Sethi
Advocate, Mumbai
87212 Answers
6048 Consultations

5.0 on 5.0

Hello, 

 

If possible, share with us a copy of the builder buyer agreement. He can only construct the same if he has approval from the appropriate authority to make the construction. 

 

Also, if the same is not mentioned in your BBA then he is required to take NOC from all the allottees. 

 

Regards 

Anilesh Tewari
Advocate, New Delhi
17923 Answers
367 Consultations

5.0 on 5.0

1. If you and other 7 residents have bought the terrace rights at the time of sale deed in your favour, then the construction to be proposed by the builder is not legally valid.

2.  Please check the narration in the sale deed to find out as to whether the sale deed in your favour clearly mentions the terrace rights with you or with the builder.

3.  Based on the sale deed in your favour, if the terrace rights are with you only and not with the builder send a legal notice to the builder not to proceed with the proposed construction.

4. Inspite of legal notice, if the builder persists to start construction, bring an Injunction Order from the jurisdictional Court to stop construction on the terrace floor. 

U R Welcome Sir.

Shashidhar S. Sastry
Advocate, Bangalore
4100 Answers
258 Consultations

5.0 on 5.0

- A terrace is a common area of a residential apartment  which is for the enjoyment and benefit of all its members. 

- Hence , none having right to construct any structure on the terrace even the said builder. 

- You can lodge a compliant before the municipal authority and to the police against the builder legally to stop him from the construction.

- Further, if no legal action then you all can file an Injunction suit before the court for restraining the builder from constructing any structure on the terrace. 

Mohammed Shahzad
Advocate, Delhi
9473 Answers
107 Consultations

5.0 on 5.0

You refer to the original plan that was approved for this building. 

If the proposed construction is not within the approved plan then it is a total deviation and violation of the terms of construction plan approvals. 

You along with other flat owners can issue a legal notice to the builder instructing him to restrain from going ahead with the proposed construction. If he is still adamant about it then you can make a complaint to the competent authority immediately. 

If there's no proper response from there too you may take proper legal course of action in furtherance. 

T Kalaiselvan
Advocate, Vellore
77366 Answers
1458 Consultations

5.0 on 5.0

The builder should have the building plan approved by the competent authority. Otherwise the proposed construction will be illegal. You may object to the proposal and demand the factual position in writing from them by sending them a notice through a local lawyer. If not authorized, you may complain to the local authority in writing and also move the court for a stay against the proposed construction.

Swaminathan Neelakantan
Advocate, Coimbatore
1838 Answers
18 Consultations

4.9 on 5.0

Dear Sir,

It is not legally illegally. You can go to court and get stay order. Your UDS will be diminished.

Kishan Dutt Kalaskar
Advocate, Bangalore
6049 Answers
363 Consultations

4.8 on 5.0

These cases are very common in various Courts of India and Supreme Court of India. I can understand your concern in this regard. Section 14 of the Real Estate (Regulation and Development) Act (RERA) 2016, mandates that any modification in the building plans, including the construction of additional floors, required the requisite consent of two-third of the allottees.

Please see section 14 of RERA Act, 2016 states expressly about adherence to sanctioned plans and project specifications by the promoter.—

(1) The proposed project shall be developed and completed by the promoter in accordance with the sanctioned plans, layout plans and specifications as approved by the competent authorities.

(2) Notwithstanding anything contained in any law, contract or agreement, after the sanctioned plans, layout plans and specifications and the nature of the fixtures, fittings, amenities and common areas, of the apartment, plot or building, as the case may be, as approved by the competent authority, are disclosed or furnished to the person who agree to take one or more of the said apartment, plot or building, as the case may be, the promoter shall not make—

(i) any additions and alterations in the sanctioned plans, layout plans and specifications and the nature of fixtures, fittings and amenities described therein in respect of the apartment, plot or building, as the case may be, which are agreed to be taken, without the previous consent of that person:

Provided that the promoter may make such minor additions or alterations as may be required by the allottee, or such minor changes or alterations as may be necessary due to architectural and structural reasons duly recommended and verified by an authorised Architect or Engineer after proper declaration and intimation to the allottee.

Explanation.—For the purpose of this clause, “minor additions or alterations” excludes structural change including an addition to the area or change in height, or the removal of part of a building, or any change to the structure, such as the construction or removal or cutting into of any wall or a part of a wall, partition, column, beam, joist, floor including a mezzanine floor or other support, or a change to or closing of any required means of access ingress or egress or a change to the fixtures or equipment, etc.

(ii) any other alterations or additions in the sanctioned plans, layout plans and specifications of the buildings or the common areas within the project without the previous written consent of at least two-thirds of the allottees, other than the promoter, who have agreed to take apartments in such building.

Explanation.—For the purpose of this clause, the allottee, irrespective of the number of apartments or plots, as the case may be, booked by him or booked in the name of his family, or in the case of other persons such as companies or firms or any association of individuals, etc., by whatever name called, booked in its name or booked in the name of its associated entities or related enterprises, shall be considered as one allottee only.

(3) In case any structural defect or any other defect in workmanship, quality or provision of services or any other obligations of the promoter as per the agreement for sale relating to such development is brought to the notice of the promoter within a period of five years by the allottee from the date of handing over possession, it shall be the duty of the promoter to rectify such defects without further charge, within thirty days, and in the event of promoter's failure to rectify such defects within such time, the aggrieved allottees shall be entitled to receive appropriate compensation in the manner as provided under this Act.

In one case, Maharashtra Real Estate Regulatory Authority (MahaRera) disallowed a builder last week from carrying out the construction of an additional floor for his project at New Panvel without the consent of the buyers who already bought flats in the building.

Recently Supreme Court stated that the country should have a “national model builder-buyer agreement” to ensure homebuyers are not left at the mercy of whimsical clauses included by real estate developers in their contracts. Court implored the Union government to contemplate framing a standard form housing agreement. A bench of justices Dhananjaya Y Chandrachud and Surya Kant underscored the “helplessness” of the people, especially middle-class homebuyers, while urging the Centre to examine the pertinent provisions of the Real Estate Regulation and Development (RERA) Act to consider framing a model agreement.

You write to the plan approving authority about your “no consent” to build further. The authority cannot approve the plan unless all the flat owners agree. You can also file a complaint to RERA Authority in Karnataka. According to the Karnataka RERA rules, every promoter, ongoing project and real estate agent has to register with the Karnataka RERA before it can reach out to the common public. Complaint can be filed by visiting rera.karnataka.gov.in or offline by visiting the nearest office. Due to Covid-19 restrictions it is advisable to file the complaint online.

You can also send a legal notice through Advocate asking for compensation for the mental and physical agony you all owners are facing due the misdeeds of builder. My team has handled with similar issues. A legal notice is, therefore, a formal communication to a person or an entity, informing the other party of your intention to undertake legal proceedings against them. This notice, when sent, conveys your intention before the legal proceedings and thus, makes the party aware of your grievance. Many times, a legal notice served will bring the other party on heels, and the problem can get resolved out of court too, with fruitful discussions on both sides. And, if the other party is still not heeding to the grievance, one can always start the court proceedings after a particular interval, as stated by the law. Although a legal notice can serve as a purpose of negotiations between the parties and save time, effort and money that are usually spent in court cases.

 

You may contact my secretary to connect with me for clarification. 

 

Gopal Verma

Advocate on Record

Supreme Court of India 

 

 

 

Shri Gopal Verma
Advocate, New Delhi
312 Answers
5 Consultations

4.0 on 5.0

Dear Client, 

It is legal, when the existing building is designed for the loads that occur from future expansion and obtained the certification during the construction of the building.

Thank you.

Anik Miu
Advocate, Bangalore
4377 Answers
45 Consultations

4.9 on 5.0

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