• Terrace Rights

This is an issue relating to the terrace rights of different floor wise owners of the three storey building where I have been residing since 1980. My father, who is deceased, had during his lifetime allowed/bequeathed to his three daughters ( no son) to be the owners/occupiers of the Ground Floor and First floor, and the partially built second (barsati) floor. My father lived with his eldest daughter and her husband in the ground floor, till his demise in 2009. The first floor was let out and the rental income was used by my father on his well being and health care for as long as he lived. But it was deemed that the First floor belonged to the youngest daughter. She never resided there and let it out off and on for rental income. I being the second daughter, occupied and have resided what was the barsati floor at that time soon, after my marriage and have lived continuously there for last 46 years. When we moved in, it was partially built . Over the period we extended the built up the floor area and today the floor is built up as per the permissible covered area. In 2008-2009 when the second floor as per permissible covered area was completed. ,the entire terrace ( ie the roof of the built up second floor) became available. We had shifted all the water tanks of all the three floors on ( which had been lying here and there before the entire terrace floor became available) on top of the terrace and the area that became available below the six water tanks we converted into a room and attached B/R which used by us for the last 17 years or so. Moreover, we had to build a mumti on the terrace floor on top of the the stairway from second floor up to the terrace floor. This mumti is small in area and was unused but we started using it as an area for work from home after 2019. The rest of the space on the terrace is used for keeping gardening/ plants/sunshine in winter. All this happened in the year 2008-2009 while my father was still alive . Neither of the other daughters or their husbands ever objected or murmured about our use of the terrace floor in the manner described above in the past seventeen years. However, the youngest sister of late ( after lapse of 17 years plus) has started badgering me for her share in the terrace. She has even threatened taking legal action. It seems to me that she is contemplating selling her floor. 
Q - My question is whether the first floor nominee ( because her floor still not transferred in her name) can force us by legal action to divide the terrace, when after all these seventeen years of their knowledge that we were using the terrace floor they never registered any murmur or protest. Raising an objection by the other owners including the owner at Ground Floor ( who has also been silent all along) at this juncture is tenable or not ? Is there law under any property related act in view of the long time elapsed which can give us relief so that we can continue to enjoy the fruits of our labor.
Asked 3 hours ago in Property Law
Religion: Hindu

3 answers received in 2 hours.

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3 Answers

Unless a father's Will or original title deeds explicitly gave exclusive terrace rights to a specific floor (e.g., specifying that the second floor includes roof/terrace rights), the open terrace is legally treated as an undivided common area for all floor owners.

The law of equity states that if a person stands by and knowingly lets another person construct structures, spend money, and occupy space without protest for a long time, they cannot later demand demolition or partition.

Since you have openly, continuously, and exclusively built upon and possessed the roof space since 2008–2009 (exceeding 12 years) without permission or rent to the co-owners, your title over that specific built portion has matured through adverse possession. Her right to challenge your physical possession of those built-up areas is extinguished by law.

In many urban property arrangements, the owner who owns the topmost built-up floor implicitly holds the practical access and roof rights of that top ceiling, subject to providing utility access (water tanks) to lower floors.

If the first floor has not even been legally transferred/mutated into her name via a registered gift deed, probate of a Will, or relinquishment deed, she lacks full legal standing (locus standi) to institute a suit for property partition.

Ensure that the lower floor owners still have unhindered physical access to reach their respective water tanks on the roof. Fulfilling this basic easement obligation makes it nearly impossible for her to win a claim of hardship or denial of rights in court.

T Kalaiselvan
Advocate, Vellore
91138 Answers
2525 Consultations

If the area comes her rightful share then she can claim it unless a common area used by both parties equally and mutually 

Prashant Nayak
Advocate, Mumbai
35310 Answers
257 Consultations

Terrace forms part of common area for benefit of all floor owners 

You can only claim complete, exclusive legal ownership of the open terrace area if your father explicitly gave you the terrace rights in a registered Will, Gift Deed, or Settlement Deed, or if your sisters signed a Relinquishment Deed giving up their shares in it.

2) The Water Tanks: Even if the terrace were private, you cannot block access to essential common utilities. Moving the water tanks to the very top was necessary, but your sisters still retain the right to access the roof to maintain their specific water tanks. [

 

3) building a full bedroom/bathroom on top of the final sanctioned floor or converting a mumti (which is meant strictly to cover a staircase) into a living/working space is considered an unauthorised construction unless it was explicitly approved in the building's structural plan.

 

4) courts in India are highly reluctant to grant adverse possession against family members (co-heirs). The law usually presumes that one sibling occupying a property is doing so with the implied permission of the others, not hostilely against them

Ajay Sethi
Advocate, Mumbai
100931 Answers
8242 Consultations

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