Owner of the top floor has exclusive rights for the terrace as per the sale deed agreement. Till date the 10th floor owner had the key for the door to enter roof and would give when society needed for any work in Solar panel, cleaning waterctank & lift room. Now due to some difference of opinion with society on some other matter, the tenth floor owner is asking society to remove the solar panel from the terrace claiming exclusive rights and solar panel is installed in their property. What is the legality of this claim? Solar panel is a common facility of the building installed by society 5 years back with their concurrence for all common lighting.
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Terrace forms party of common area for benefit of all member’s notwithstanding clause in sale agreement
2) refuse to remove solar panel installed with his consent
seek court orders restraining top flat owners from removing solar panel and for access of all flat owners to terrace
In most apartment buildings in India (including under the Rajasthan Cooperative Societies Acts and Apartment Ownership or similar state laws), the open terrace / rooftop is considered a “common area” of the building owned jointly by all flat owners. It is not part of any individual flat unless the sale deed explicitly and clearly states that the terrace has been sold and conveyed as part of the top-floor flat’s exclusive property. Simply living on the 10th floor does not automatically give full ownership or exclusive property rights over the terrace/roof.
If the sale deed specifically grants ownership rights to the terrace area to the 10th floor owner, and it’s recorded and clear, then that owner may have rights. But if the terrace is not specifically transferred in the deed (i.e., not shown as part of his flat), then legally the terrace belongs to all flat owners as a common area. Any clause that gives exclusive roof rights without clear deed language may be unenforceable or illegal.
No individual flat owner can unilaterally remove or claim a common facility that was lawfully installed for the society without proper authority (e.g., General Body resolution). Unless the deed explicitly shows that the terrace and the solar plant area is part of the 10th floor owner’s private property, his claim that “solar panel is on his property and he can remove it” is not legally valid in most standard cases.
Therefore unless the sale deed explicitly confers roof rights to the 10th floor owner, the terrace is a common area belonging to all members of the society. The Solar panels installed for common lighting/service cannot be unilaterally removed by one owner. By withholding access or demanding removal over a personal dispute is not legally sustainable.
In this case, the land owner jointly formulated an agreement with a builder for developing a property in their land. In that agreement they have retained pent house in the 10th floor and roof top access exclusively with them. The other floors from ground to 9th has been distributed between land owner and builder which can then be subsequently sold by either of them to third party. Post this land development and both builder and land owner selling their allocated flats to other third party, a residential welfare society was formed. Erstwhile land owner still resides in the pent house. The agreement between the landowner and builder however says that roof rights is not part of the saleable area allotted to both parties.
If the JDA explicitly excluded the roof from the saleable area and this was maintained in the sale deeds to third-party flat buyers, the landowner's claim to the roof is valid.
Verify if the sale deeds of the 0-9th floor buyers explicitly stated the roof is exclusive to the penthouse.
Under the Real Estate (Regulation and Development) Act, 2016 (RERA), roofs, staircases, and terraces are explicitly defined as common areas.
Every apartment owner holds an "undivided interest" in these common areas. This means no single party, including the original landowner or builder, can legally claim exclusive ownership or block access unless very specific conditions are met.
Courts have repeatedly held that any clause in a sale deed or development agreement that contradicts the law—such as a builder or landowner retaining exclusive rights to a common terrace is null and void.
The municipal-sanctioned building plan must explicitly mark the terrace as an "exclusive use" area for a specific unit (e.g., the penthouse). The terrace must be accessible only through the private unit and have no common entry point (like a shared staircase). The RWA/Society must formally agree to this arrangement in its bylaws.
Upon formation of an RWA or Co-operative Society, the builder/landowner is legally required to hand over the entire building complex, including all common areas (terraces), to the association. Regardless of ownership, the roof must remain accessible for maintenance (water tanks, lift rooms) and emergency fire safety as per the National Building Code. Even if the landowner retains the right to construct additional floors (FSI), they usually cannot block current residents from using the existing roof of the topmost floor.
You can approach court of law with a suit for permanent injunction against the land owner/10th floor owner to restrain him from obstructing the access to the terrace for the essential purposes.
Try to settle with the top flat owner
litigation is long drawn and expensive proposition
Since the agreement specifically excluded the rooftop from the saleable area, the rooftop area belongs exclusively to the landowner.
the landowner holds special rights to the top level, creating a unique ownership structure where the rooftop and penthouse are private rather than common
Sole ownership of the Roof is misconceived. Even if it was mention in the sale deed, still it does not effect other residents right to use property on the basis of proportionate owner in land and roof.
Society can easily claim key of door and right use roof by order of court.
Agreement between the landowner and builder - do not bind other residents as this is illegal. If there are 10 flats than each flat owner has 1/10th share in land and roof.
If it’s a common area shared by all then it wil not be saleable
