• Sale of Garage and Flat

We own a flat and a enclosed garage ( both separate agreements)  in a cooperative society . We receive separate maintance bills for them. The garage does not have a share certificate and is currently being used as office with NOC from society

What will be the status of the Garage property if only the flat is sold to a separate user, can I continue to use the property and what will be the issues ?
Asked 6 months ago in Property Law from Mumbai, Maharashtra
Religion: Hindu
Actually Garage is a part of the Flat. If it is buy by two different sale deed it could be considered as two entities. If so you can sell both of them or kept in hand as per your wish. 

What will be the status of the Garage property if only the flat is sold to a separate user, can I continue to use the property and what will be the issues ?
If you have a sale deed with respect to the Garage area , you can kept it in you hand  and  use office. 
Ajay N S
Advocate, Ernakulam
1905 Answers
19 Consultations
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If you have a separate sale deed for the garage then the sale of flat will not result in the sale of garage. So you can continue to use the garage,
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
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Since both the garage and the flat is separate unit and fortunately you bought those by two separate deeds , selling of one will not be considered as sale of another.
So while selling the flat you may not sell the garage and contuse the use the same as office.
Devajyoti Barman
Advocate, Kolkata
5154 Answers
54 Consultations
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As per the general practice in the market, the developer, by the agreement of sale, sells only the ‘flat’ and the purchaser has rights in respect of only the flat and no other portion of the building. This is exactly what had been agreed to between the developer Nahalchand Laloochand Private Limited and the flat purchasers of Panchali Co-operative Housing Society Ltd.Each flat purchaser had executed a declaration to the effect that stilt parking spaces/open parking spaces shown in the plan exclusively belong to the promoter and that the Society has no objection to the sale of such spaces by it. However, this was later argued by the Society as being contrary to law and hence, not binding. When the dispute arose, the developer approached the Bombay Civil Court seeking “permanent injunction restraining the Society from encroaching upon, trespassing and/or in any manner disturbing, obstructing or interfering with its possession in respect of 25 parking spaces in the stilt portion of the building”.
In a 2010 judgment, Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd. [AIR 2010 SC 3607], the Hon’ble Supreme Court rejected the argument of a real estate development company that they are entitled to sell garages or stilt parking areas as separate flats to owners who intend to use it as parking facilities. A bench of Justices A K Patnaik and R M Lodha, ruled that builders or promoters cannot sell parking areas as independent units or flats as these areas are to be extended as “common areas and facilities” for the owners. Also, the Court said that the developer is only entitled to charge price for the common areas and facilities from each flat purchaser in proportion to the carpet area of the flat.
In the words of the Court : “The promoter has no right to sell any portion of such building which is not ‘flat’ within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organisation; the only right remains with the promoter is to sell unsold flats. It is, thus, clear that the promoter has no right to sell ‘stilt parking spaces’ as these are neither ‘flat’ nor appurtenant or attachment to a ‘flat’. A `flat' to be within the meaning of the definition in Sec. 2 (a-1), it must be a separate unit conforming to the description capable of being used for one of the purposes given in the definition.
the Court has categorically stated that the meaning and significance of the bracketed portion "(and includes a garage)" should be seen in the context given to the word `flat' which is true indication of intent of the legislature. The phrase `and includes a garage' in the bracket does not bring in `garage' by itself within the meaning of word `flat'. If stand alone `garage' was intended by the legislature to be a `flat' within the meaning of Section 2(a-1), that could have been conveyed by use of the expression `or garage' after the word `business' in the same breath as preceding uses. The bracketed phrase is indicative of the legislative intention to include a `garage' as appurtenant or attachment to a flat which satisfies the ingredients of Section 2(a-1).

From the above contents and judgement by supreme court, it can be construed that you have bought this garage as a separate unit with separate sale deed with the meaning of garage' and not a parking space, hence there cannot be any objection from any quarter for you holding it as a garage even after selling your flat.
As this is not coming within the meaning of parking space and has been properly defined as garage, in my opinion, you may continue to hold and use this separate property for the purpose it was bought.
T Kalaiselvan
Advocate, Vellore
13931 Answers
127 Consultations
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1) you cannot sell the flat and retain the garage 

2) your right to own the garage flows from your membership of the society

3) if you sell the flat society will not transfer flat in name of the purchaser unless garage is also sold 
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
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Relevant provisions of MOFA:

14. The definition of `flat' in Section 2(a-1) is most vital and during course of arguments it has been rightly said that meaning of the word `flat' is the actual fulcrum of MOFA. Section 2(a-1) reads thus:

"S.2(a-1).- "Flat" means a separate and self-contained set of premises used or intended to be used for residence, or office, show-room or shop or godown or for carrying on any industry or business (and includes a garage), the premises forming part of a building and includes an apartment.
Explanation.--Notwithstanding that provision is made for sanitary, washing, bathing or other conveniences as common to two or more sets of premises, the premises shall be deemed to be separate and self-contained."

2) since garage forms part of flat you cannot independently sell the flat and retain the garage 

Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
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1) society has issued one share certificate for flat and garage 

2) even if you receive separate bills for flat and garage society cannot permit you to retain the garage if you have sold the flat 

3) you can make application to society to issue you separate share certificate for garage but chances of society doing so are bleak
Ajay Sethi
Advocate, Mumbai
23116 Answers
1214 Consultations
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If the society agrees to to transfer the flat alone then you may do nothing, apply for share certificate of the garage as per the registered sale deed in your name, let the society say that is it is not proper as per bye laws, then you may take up the issue legally through the Dy. Registrar of cooperative societies or the registrar court seeking remedy and relief.
T Kalaiselvan
Advocate, Vellore
13931 Answers
127 Consultations
5.0 on 5.0
Any prospective buyer desirous of purchasing the garage will ask you to prove his title thereto. You have to have an instrument of conveyance of the garage to you. A sale agreement is not a document of title. 
Ashish Davessar
Advocate, Jaipur
18057 Answers
445 Consultations
5.0 on 5.0

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