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
In apartment law, a clear distinction is made between exclusive use rights and ownership. The terrace/roof of a building is, by its very nature, a common area, because it protects the structure, houses water tanks, lift rooms, fire safety installations, electrical lines and other utilities essential for all residents. This legal position has been consistently recognised by courts, including the Supreme Court. A developer or landowner cannot transfer ownership of the roof as an independent immovable property unless it is specifically carved out as a separate unit, which is extremely rare and usually impermissible under building laws.
From your clarification, the development agreement itself records that the roof rights were not part of the saleable area allotted either to the builder or to the landowner. This is crucial. Once it is not part of saleable area, it automatically falls within the common areas of the building. At best, the penthouse owner enjoys exclusive access or limited user rights, meaning he can use the terrace for personal enjoyment, subject to the rights of the society and other members.
Further, the solar panels were installed by the society, for a common purpose, with the concurrence of the penthouse owner, and have been in use continuously for the last five years. This long-standing consent and acquiescence creates a strong legal presumption that the installation was lawful. After allowing common facilities to be installed and enjoyed for years, the penthouse owner cannot suddenly revoke consent arbitrarily, especially when the installation does not deprive him of access or structural safety.
Once a cooperative society or association of apartment owners is formed, the management and control of common areas vests with the society, not with any individual flat owner, regardless of special clauses in earlier agreements. Any clause in a sale deed giving “exclusive rights” must be read subject to society rights, municipal laws, fire safety norms, and common benefit usage. Such clauses do not give an absolute veto power to deny common utilities.
Courts have repeatedly held that even where a top-floor owner has exclusive terrace rights, he cannot prevent the society from using the terrace for essential services, including water tanks, solar panels, lift machinery, antennas, or safety installations. Solar panels for common lighting clearly qualify as a legitimate common facility.
Therefore, the demand to remove the solar panels solely due to a dispute with the society is legally weak and unsustainable. The society is within its rights to retain the solar panels, provided they do not cause structural damage or violate safety norms. If the penthouse owner forcibly obstructs access or threatens removal, the society can legally restrain him through a notice and, if required, approach the civil court for an injunction.
In summary, the terrace remains a common area; exclusive rights mean restricted personal use, not ownership; prior consent and five years of uninterrupted common use strongly favour the society; and the penthouse owner cannot unilaterally demand removal of a common facility like solar panels merely on the basis of an “exclusive rights” clause.
Dear client,
Rooftop Rights
Owners of the 10th floor have exclusive rooftop rights as stated in the sale deed agreement. To date, the 10th floor owner had the key to the roof access door and only providing it to the society when needed for work such as solar panel installation, cleaning, or access to the lift room.
The 10th floor is now requesting that the council remove solar panels from the rooftop because they claim exclusivity over that unit and the solar panels are affixed to their building; however, the solar panels are a shared facility installed by the council 5 years ago with the agreement of both parties in regards to common areas.
The agreement created an exclusive right for the 10th floor owner to use the whole 10th floor and the portion of the rooftop above that area.
The agreement also states that the council has exclusive right to access the shared facilities for repairs and maintenance which give owners of the 10th floor a limited right to use the rooftop area for that purpose.
In this scenario the agreement, therefore, gives the 10th floor exclusive rights over the penthouse or entire rooftop but is not sufficient basis for requesting removal of the solar panels from the rooftop; and; if the council fails to provide access to carry out repairs or maintenance on the shared facility, they could potentially be liable damages to the 10th floor owner.
If you have any queries please fell free to contact us.
This is a classic conflict between “exclusive terrace rights” and “common utility rights of a residential society.”
The answer lies not in the wording of one sale deed alone, but in how the building was structured legally.
Let us examine it carefully.
First Legal Principle – What Is a Terrace in Law?
Under apartment and cooperative housing laws across India (including Rajasthan), certain portions of a building are treated as:
Typically, these include:
The governing framework in Rajasthan is the Rajasthan Apartment Ownership Act, 2015 (if the property is submitted under apartment ownership format), along with the Society/Association bye-laws.
Even if not formally submitted under the Act, courts generally treat:
The terrace/roof slab as part of the structural and common portion of the building.
What Does “Exclusive Terrace Rights” Usually Mean?
When a sale deed says:
“Exclusive roof rights”
It normally means:
✔ Exclusive access
✔ Right to use for personal purposes (subject to structural safety)
✔ Right to prevent nuisance
But it does NOT automatically mean:
- Absolute ownership of the roof slab
- Power to remove common utilities
- Right to alter structural services
Especially when:
This distinction is extremely important.
Builder–Landowner Agreement Clarifies the Position
You mentioned:
“Roof rights are not part of the saleable area allotted to both parties.”
That sentence is legally decisive.
It indicates:
Therefore, the 10th floor owner’s right is more in the nature of privileged use, not absolute ownership.
Status of the Solar Panel
The solar panel:
This changes the equation.
When a common utility is installed:
The principle of acquiescence applies.
He cannot suddenly reverse position unless:
Merely citing “exclusive rights” is insufficient.
Can He Legally Demand Removal?
His claim will succeed only if he proves:
The terrace is his exclusive property (not merely access right).
Society had no authority to install common utilities there.
Installation amounts to trespass.
From your description, those elements appear weak.
Courts have consistently held:
Common utilities like water tanks, lift rooms, telecom towers (in some cases), and solar panels serving the building can be placed on terrace even if access rights are exclusive.
Important Distinction – Exclusive Access vs Ownership
There is a big difference between:
If roof was not conveyed as independent property with separate title, it remains part of the common structure.
He cannot treat it as a private bungalow roof.
Society’s Legal Standing
Once a Residential Welfare Society was formed:
If the solar installation was approved through proper resolution, his unilateral withdrawal is weak legally.
When Could He Succeed?
He may have a case only if:
Otherwise, it is unlikely that a court would order removal of a long-standing common utility.
Practical Reality
Courts balance:
Solar panels serving common lighting are generally treated as beneficial common infrastructure.
Removal would require strong legal ground.
What Society Should Do Now
Obtain copy of:
Check if terrace is defined as common area.
Pass a formal resolution recording:
Respond legally but calmly.
Final Legal Position
Based on the facts you provided:
✔ Terrace was not sold as independent property.
✔ Only access/use rights were retained.
✔ Solar panel is common facility installed with concurrence.
✔ 5 years have passed without objection.
His demand for removal appears legally weak unless he proves ownership of the roof slab itself.
