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In a apartment building Can a builder put a condition that building terrace belongs to him (its his personal) and he can construct additional floor on the same terrace and sell it? And any of the other flat owners can not call it common area? If this condition is there in sale deed and all flat owners signed this agreement then whether it can be challenged??
Asked 3 months ago in Property Law
Religion: Hindu

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12 Answers

no such condition can be put by the builder as terrace forms part of common area for benefit of all 



such a condition in sale deed can be challenged in court of law 


any agreement contrary to law is not valid 

Ajay Sethi
Advocate, Mumbai
93506 Answers
7253 Consultations

5.0 on 5.0

You may have to first look into the approved plan i.e., upto how many floors that the builder has obtained permission to construct. 

The 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.

Terraces in housing societies are part of common areas, meant for all flat owners.

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.

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

T Kalaiselvan
Advocate, Vellore
83704 Answers
2057 Consultations

5.0 on 5.0

The terrace portion of an apartment complex is an area common to all its residents and the promoter cannot use it for commercial purposes, including for the purpose of constructing extra flats and selling them. 


See this: https://timesofindia.indiatimes.com/?back=1

Vibhanshu Srivastava
Advocate, Lucknow
9534 Answers
299 Consultations

5.0 on 5.0

Such conduction is not valid neither binding on the flat owners.

Yogendra Singh Rajawat
Advocate, Jaipur
22464 Answers
31 Consultations

4.4 on 5.0

Terrace area is a common area and belongs to all the flat owners. A builder can't put a condition that building terrace belongs to him as his personal property. The builder can't construct additional floors on the same terrace and sell it.  Before signing the sale deed, the buyer should have checked about terrace common area.  If the sale deed is already signed with terrace as personal property of the builder, it can be challenged in the jurisdictional Court.  If that's the case, the owners of flats can approach RERA to intervene and resolve the issue.

Shashidhar S. Sastry
Advocate, Bangalore
4947 Answers
308 Consultations

5.0 on 5.0

Actually it’s a common area but if there is no society or association formed then builder may say that but actually it’s association control 

Prashant Nayak
Advocate, Mumbai
31071 Answers
162 Consultations

4.1 on 5.0

FSI is determined on the size of the plot over which the superstructure is proposed to be constructed. It is on this basis that local planning authorities approve building plans. Once a project is completed and the flats are occupied, no builder can reserve such rights. Check if your promoter has any spare FSI left so that additional floors can be built. If there is no further scope, the agreement can be sought to be set aside.

Swaminathan Neelakantan
Advocate, Coimbatore
2710 Answers
20 Consultations

4.9 on 5.0

Yes, builder can put such condition that terrace area shall belong to builder but builder is bound to provide roof to occupants for water tank etc. 

Siddharth Srivastava
Advocate, Delhi
1179 Answers

5.0 on 5.0

- As per law,  terrace of  a building is common area , and it is a public space that is accessible to everyone living in the apartment. 

-  Hence, a Builder does not have the legal right to sell an area which is shared by all members of the apartment , and even 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 by the builder without the consent of all owners of the building.

- You can file a complaint before the Consumer forum against the builder , and even can lodge a compliant to the municipal corporation as well. 

Mohammed Shahzad
Advocate, Delhi
12521 Answers
172 Consultations

5.0 on 5.0

Dear Client 

In general, whether a builder can claim ownership of the terrace in an apartment building and construct additional floors on it depends on several factors, including local building regulations, the terms of the sale deed, and any applicable laws in your jurisdiction. Here are some key points to consider:

Local Building Regulations: Local zoning and building regulations play a significant role in determining what can and cannot be done with the terrace of an apartment building. These regulations may restrict the use of terraces for additional construction or specify how they can be utilized.

Terms of the Sale Deed: The terms and conditions outlined in the sale deed are crucial. If the sale deed clearly specifies that the builder retains ownership of the terrace and has the right to construct additional floors on it, and if all flat owners have willingly signed this agreement, it may be legally binding. However, the validity of such terms can still be subject to legal scrutiny.

Legal Challenges: Even if all flat owners have signed an agreement, it may be possible to challenge such conditions if they are found to be in violation of local laws or regulations, or if they infringe upon the rights of the other flat owners. A legal challenge may involve disputing the validity of the terms in court.

Common Area vs. Private Ownership: The classification of the terrace as a common area or the personal property of the builder depends on the terms of the sale deed and local regulations. If the sale deed specifies that it is the builder's personal property, it may not be considered a common area unless local laws dictate otherwise.


Anik Miu
Advocate, Bangalore
8095 Answers
97 Consultations

5.0 on 5.0

If the builder has put such a condition in the sale deed, it is not valid and it can be challenged in court. The flat owners can also approach the Real Estate Regulatory Authority (RERA) to intervene and resolve the issue.

The RERA Act, 2016 specifically states that the terrace is a common area and belongs to all the flat owners. Section 3(3)(g) of the Act defines "common areas" as follows:

"Common areas" means all areas of the building, excluding the areas of individual apartments, which are meant for the use and enjoyment of all the owners of the apartments, such as staircases, lifts, corridors, lobbies, gardens, parking spaces, terraces, etc.

Moreover, as per section 18(2)(e) of RERA act builder can't sell common area.

Akshit Aggarwal
Advocate, Delhi
52 Answers

5.0 on 5.0

No ; It can be challenged in Court

Gaurav Ahuja
Advocate, Faridabad
58 Answers

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