Hi Legal Experts, I recently purchased a resale flat in Hyderabad. Built in 2016, the apartment complex is in a prime location on a 100ft main road and currently has 5 floors with 30 flats in total. There is a registered association of all the flat owners as well. My flat was originally purchased by Mr.X from the builder and as I was going through their sale deed, I noticed the following clause. 9. The VENDEES agrees with the co-owners to avail the common areas and facilities including corridors, stairs, peacebly with other occupants of the flats and not to claim exclusive terrace or other separate rights in common areas. The terrace rights lies with the Vendors/Builders & Developers and the VENDEES have no rights on the terrace. Does this mean, the owners association doesn't have exclusive terrace rights? Is it legal for the builder to claim terrace rights even after selling all the flats? As far as I know, the terrace belongs to all the occupants or the association. Based on this clause mentioned above, can the builder build another floor at a later stage (if permission is accorded by the authorities). The builder also constructed a pent house without permission and rented it out. What should the association do to set this right now? Please provide your valuable suggestion.
1) terrace forms part of common area for benefit of all members
2) builder cannot claim exclusive rights on terrace
3) any such clause in sale deed would be valid as contrary to law
4) for construction of additional floor consent of all flat owners would be necessary
Your understanding is correct terrace rights belong to all residents, no one can claim exclusive rights over terrace. This is specifically provided under RERA, though the project may not be registered under RERA, its rules apply to all projects. Association can seek declaration to the effect that it belongs file a suit in civil Court of Secunderabad or Hyderabad depending on location of project.
You can also get the penthouse demolished by approaching the Court as it must be against the sanctioned plan.
Terrace is common area and association has all the rights in the same
The terrace and other common areas are common to all the members of the associations and the association of the apartment is having rights and control over all the common areas of the complex.
A terrace or rooftop is a common area of in a residential society which is for the enjoyment and benefit of all its members. Although it has been seen that many developers resort to selling or giving exclusive terrace rights on payment, the practice is illegal.
A community hall, a play area, a garden, a stairway, a terrace and elevators are all shared areas and have to be made accessible to all the apartment-owners without any ownership issue. As any repair, replacement and maintenance cost of such common areas has to be borne by all the flat owners collectively, likewise, any income or profits arising from the use of such common areas have to be distributed evenly among all the flat owners.
It has been seen that many buildings have terraces on certain floors, below the main terrace on the top floor. Developers often hoodwink the residents and sell these terraces to the adjacent flat owners thereby making huge profits. However, this too is against the law. A terrace that is not accessible from the common areas and is attached exclusively to a flat can only be sold to a flat owner but all other terraces are for the common usage.
It is for the same reason a terrace is not included in the Floor Space Index (FSI) of an apartment. Reason: it cannot be bought or sold.
The residents can complain against the developer by approaching the Consumer Forum
1. Terrace area comes under common area and belongs to all the flat owners
2. The Association has to file a complaint with the Registrar of Co-operative Societies as well in the jurisdictional Consumer Forum.
3. If the builder starts construction on the terrace, let the Association approach the jurisdictional Court to stop the construction by bringing Injunction Order.
From the facts narrated, it is clear that the promoter has reserved the terrace rights for further construction. The association may take up the issue of unauthorized construction of the penthouse with the State RERA and the local planning authority separately.
Dear Client,
A Terrace or rooftop is a common area in a residential building which is for the enjoyment and benefit of all its members. Hence, the terrace is a common portion and does not belong to the top floor owner. - The builder/developer has no right to sell the terrace
- A common terrace is a public space that is accessible to everyone living in the society and the responsibility of its maintenance is shared by all the residents.
- A builder does not have the legal right to sell an area which is shared by all members of the housing society, and any flat owner cannot claim ownership of the terrace and deter other owners from using the same.
- Further, no construction works can be carried out on the terrace without the consent of all co-owners of the building.
- Further, as per law, all open spaces in a building, including the terrace is a common easement for the benefit of all the members who are entitled to enjoy the same.
- Further, as per rule , the Association shall frame rules, regulations and procedures for its common areas and facilities as well as frame guidelines of restrictions and measures designed to prevent the unreasonable and improper use of facilities and common areas which will interfere with the peaceful occupation of units by respective Owners / Residents conducive to day to day living environment.
- Since, a terrace is a common area of a residential society which is for the enjoyment and benefit of all its members, hence a society can frame the rules for the benefit and enjoyment of apartment’s owners.
- Hence , the said construction by the builder is illegal , and the society can take legal action against the builder.
- The society can give a compliant before the Municipal corporation for fixing the liability and to demolish the said extra construction over the building without the consent of the flat owners. & the Society.
- If non response, then file a compliant before the Consumer forum against the said builder.
