• Area increased at time of possession

I had purchased a flat in resale in Oxy Homez by Super Realtech in Bhopura Ghaziabad about a month back. The area in BBA is mentioned as 1350 sq ft. Now the builder has offered possession with a demand of additional charges for internal as well as external area increase. The internal area increased as claimed by the builder is 45 sq ft while the external area is nearly 100 sq ft. The BBA has a clause of allowing a variation of SBA  of +/- 6%(which is +/- 81 sq ft here). When I spoke to the builder, he explained that the clause addresses to the internal area only while we can increase the external area to any extent. External area is (a larger balcony with the kitchen, build to cover the parking below the flat) being sold to me at half the BSP rate. Also, the external area increase will not be counted while registering the sale deed with GDA. What shall I be doing in this situation?
Asked 10 months ago in Property Law from Ghaziabad, Uttar Pradesh
Religion: Other
A chajja projection ( as balcony) of a width of 0.75meter at lintel or roof level is not included in the floor area ratio. if construction is larger that that area it will be include in loor area ratio but only 50% of that area. builder gives it on 1/2 of the bsp rate. 
Shivendra Pratap Singh
Advocate, Lucknow
2737 Answers
41 Consultations
4.9 on 5.0
variation of sba is about 6% but it excludes 0.75 mt balcony, meter area, Canopy projection etc. so your total area will be lower than 81 square feet.
Shivendra Pratap Singh
Advocate, Lucknow
2737 Answers
41 Consultations
4.9 on 5.0
1) builder cannot increase the area of flat without consent of flat owners 

2) you can refuse to make payment for additional area demanded by the builder 

3) in the alternative pay amount under protest take possession of flat 

4) file complaint before consumer forum and seek refund with interest 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
1) you can with cheque enclose a covering letter that payment is made under protest . not necessary to be drafted by a lawyer 

2) builder has to carry on construction as per sanctioned plans . if plans show flat area as 1350 square feet builder cannot arbitrarily increase area by 140 square feet and demand flat owners pay for additional area 

3) the increase is more than 6 %mentioned in agreement 

4) as per "UP apartment act 2010" having a builder buyer agreement & 
 is mandatory, you are supposed to get the 
agreement docuement, registered with authority within 4 months of 
execution of BBA.& do ensure that builder buyer agreement mentions 
"ALL"  the details of l of Terms and conditions plus floor plan, 
building plan, material to be used, specifications , amenities and 
quality to be provided, common area and its use, built up area, carpet 
area, date of completion
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
1. The builder cannot force down the throat of the buyer anything which has not been agreed to in the original agreement.Unless the clause specifically excludes external area from its ambit it has to be interpreted as inclusive of internal and external area. Now the remedy is to either issue a notice for cancellation of agreement to claim the refund of sale consideration or you may pay the additional charges to take the possession under protest and then go to court to recover the same with compensation for breach of contract.

2. It is in your interest to get the notice drafted by a lawyer;. 
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
Some developers have found a new way to milk homebuyers of their hard-earned money. People who booked and paid for apartments are now getting notices from their builders asking for extra money for increase in “super area” - the space reserved for lifts, passageways and clubs in a building or society. Buyers have neither given permissions for the increase nor do they know about the exact specifications of the super area increase.Calculating an apartment’s super area is such a complicated process that even real estate experts admit defeat, saying there is no way to figure out an increase or decrease in the super area because it includes all of the common areas of a building.A developer can include any built-up area in the super area and claim he has increased the super area. If you go by the principle of architecture, there shouldn’t be any variation in the apartment size from the day the architectural design is done and the foundation built till the time the whole group housing project is ready. It’s not possible for an apartment of size A in a building with a ready skeleton structure to grow to size B at the time of possession.
A model-builder buyer agreement, sale of flats on the basis of carpet area and strict implementation of apartment acts are some of the solutions to solve the problem of builders charging extra for increasing super area for booked flats.“If the flat sale happens on the actual size (carpet area/covered are) which a home buyer can physically measure, the increase in area can be easily verified. Further, if the builder-buyer agreement refers to only the carpet/covered area and no increase or decrease in apartment size at a later stage, the issue can be addressed in favour of the home buyers to a great extent,”
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
1) Can the lines "Variation in area up to (+/-) 6% is understood & accepted. The sale price would be adjusted on the basis of booking rate." be assumed as the consent of the buyer for up to 6% increase in floor area and any random increase in balcony size?
There shall be a a provision to give true disclosure at the booking stage to the homebuyer as well as the development authority. This disclosure will clarify each and every aspect of the upcoming group housing project. The developer can’t fleece homebuyers in the name of increased super area. 




2) Does payment under protest need to be drafted by a lawyer or a simple letter to the builder would do?
The payment under protest can be drafted by the buyer itself ad there is no need for a lawyer to draft it.



3) Is the builder violating, while demanding this payment any law of the UP Apartment Act ? If that is the case, I can quote that violation to force the builder to agree on some settlement.
the UP Apartment Act 2010 has a provision to give true disclosure at the booking stage to the homebuyer as well as the development authority. This disclosure will clarify each and every aspect of the upcoming group housing project. The developer can’t fleece homebuyers in the name of increased super area. 

T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0
1) dont with draw the letter 

2) move consumer forum to direct builder to deliver possession of flat and also seek refund of additional amount paid by you with interest 
Ajay Sethi
Advocate, Mumbai
23206 Answers
1218 Consultations
5.0 on 5.0
Now the remedy is to file a lawsuit against builder seeking court's binding directions to him to deliver the possession to you along with the refund of the amount illegally sought and compensation.
Ashish Davessar
Advocate, Jaipur
18088 Answers
448 Consultations
5.0 on 5.0
After having made the payment in full, the builder is intentionally delaying the handing over of possession for the obvious reasons. If he is not responding to any of the requests made, you may issue a legal notice to him demanding your requirement, let him give a reply, if he is still adamant, you can even lodge a criminal complaint against him with the local police or can drag him to consumer forum seeking relief and compensations for the mental strain and pecuniary losses. 
T Kalaiselvan
Advocate, Vellore
13985 Answers
127 Consultations
5.0 on 5.0

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