Parking space allotment by Association
xx.To receive money for utilizing the facilities of club house, or any other common facilities including open spaces and the charges may be fixed by the Association from time to time.
xxi. To allocate or re-allocate/re-organize parking spaces to the members
Common Property: Following are the Common Areas and Common Properties Owned By the association as trustee of all the members
a.All the Common Areas and common properties shall be the property of the association and they include Common Areas of the Buildings, Compound wall, and gate
b.Plinth and Foundation
c.Water Sumps and Over Head tanks
d.Generators and their accessories including batteries
e.Transformers and their accessories
f.Fire Fighting equipments and their accessories
g.Furniture Fixtures and fittings in common areas
h.All Kinds of electrical items, equipments, control panels, meters, including wires, and cables in common areas
i.Airconditioners in the office, gym, club house, etc.
j.Sewage treatment plants, and their accessories
k.All lifts and their accessories,
l.All equipment in the gym /health club
m.Built up areas of Club House, Health Club, Gym , Office, Indoor games area, Creche, Security Rooms, buildings accommodating STP, WTP , RO, Gas plants, Toilets for the staff and security.
Neither the Managing Committee nor the General Body shall have any power whatsoever to use the common areas other than for common utility of all members and as stipulated in these Bye Laws.
Parking Allotment by the Association: First and foremost, it is not sale as interpreted by few. It was only permission to park vehicles and the amount charged was collected as Non Refundable Deposit. Suggestion emanated from Open House. Legal opinion was obtained. Decision was taken in Managing Committee Meeting with just one dissent. Information was circulated through emails inviting bids with minimum charge as 1.5 lacs. Six persons offered to take with offer of 1.5 lacs (except one who offered 1.52 lacs). This person later withdrew. There were only five persons and five slots. Again allotment was decided with full discussion and approval of Managing Committee. This has been clearly explained in the AGM on 20th Sep 14 and voting was taken twice . Majority of 29 has approved twice while 21 voted against.
What is the legal position now?
Is there any relevant case law? If so details please
Asked in Property Law from Chennai, Tamil Nadu
If the association is letting the area to use for a fixed period, it is right in its action.
when it comes to the allotment/sale to an outsider other than the member , the association has no right, the same is the case of the builder or promoter.
Even if the builder has not specified the area as common area , it i virtually become a common area by nature . If the association has taken votes and followed the procedure, it has to also keep in mind that holding the space temporarily for use does not give the right absolutely.
When it comes to the sale of common space ,The supreme court has cleared it in "Nahalchand Laloochand Pvt Ltd, "The apex court passed the judgment while dismissing the appeal of the promoter, Nahalchand Laloochand Pvt Ltd, challenging the Bombay High Court ruling that under the MOFA (Maharashtra Ownership Flats Act), a builder cannot sell “Open-to-sky” areas or “stilted” (covered) portions of their flat complexes, usable as parking spaces, cannot be sold separately by flat builders/promoters/developers as “garage”. These spaces are part of the “common areas” in flat complexes and not “salable independently as a flat or along with a flat”, the court said in a judgment.parking slots in the stilt area as independent flats or a garage.According to the ruling, "If a promoter does not fully disclose the common areas and facilities, he does so at his own peril. Stilt parking spaces will not cease to be part of common areas and facilities merely because the promoter has not described the same as such in the agreement with the flat purchaser. The promoter has no right to sell any portion of the building which is not a flat."
Though the nature of your issue is different the law is the same as it gives the right to the association to make use of the area for its financial advantage and the members in majority has agreed to it.
The association should go ahead with its decision to allot as it has obtained the majority provided all members are members
1) there is no infirmity in allotment of car parking slot by the association to 5 members . association has power under byew laws no 6 to fix charges for parking , to allocate parking slots to members
2) society has followed proper procedure . invited applications from members for allotment of car parking slots against refundable security deposit .
3) decision taken by MC was duly ratified in AGM by majority vote
1. The arrangement made appears to be perfectly alright legally,
2. Only question which can be raised later on is that whether the permission granted to 5 persons to park their 5 nos. cars at their alloted parking spaces are for a particular period or for ever,
3. Is the said permission to park cars at specified parking spaces trsnsferable? I.e. can the said 5 nos. car owners trsnsfer their authority to park cars at the specified spaces to some other persons after taking consideration?
4. If it is so, then the some day some one may sue the Society alleging that the said parking spaces have been sold/leased out illegally without registering the same by paying stamp duties and registration fees,
5. Hence, the allotment letter is required to be seen to advice properly.
all depends on terms of allotment letter.
Advocate, New Delhi
1. Your decision to allot the space on the said terms are right and proper legally. Make it in the most transparent manner and with proper documentation,.
2. The allottees are members and there should not be any legal issue even if any aggrieved member complain against your decision before the authorities, as the association is legally authorized to do so as per the existing bye-laws.
The association should refund the amount received from the 5 members.There is no locus standie to allot parking to the desired members without the consent of the builders and civic authorities.
1. No legal or procedural infirmity can be found in the action of the association.
2. Clause no.6 specifically empowers the association to allocate parking spaces to members. Association has followed the proper procedure while allocating the parking space. Arbitrariness is not traceable to the procedure followed by it.
3. If the parking space allocated by the association is non-transferable then association is on the right side of the law.