• Allotment of car park

Dear Sir,

I bought an apartment in Chennai in 2015 with a covered car park allotted by the builder. I have received an allotment letter and this is also mentioned in my registered construction agreement in of the schedules. The building was completed in 2013 and the builder had been selling units from 2013 and there are few owners who bought the apartments before me didn't get car park when they bought the flat initially. I understand that they were told by the builder that car park will be allotted later, but it was not done and now there are few owners who has not got car parks in the complex. Now the building is maintained by the flat association and the owners who didn't get car park allotted by the builder are suggesting the association to cancel the car park allotted by the builder and do a fresh allocation based on first come basis. Means, whoever bought the flats first, car park to be allotted first. Can you please let me know on the following?
1.	If the association has any right to take the car parks already paid and bought by owners? W
2.	What legal remedy is available for those owners who weren't allotted car park by the builder?
3.	Will I be able to retain the car park allotted by the builder without any issues? 
4.	If association decides to cancel my car park and other buyers' who bought flats towards the end, what legal protection will I get from the court? As mentioned earlier, I have the allotment letter from the builder and also the registered construction agreement, wherein in one of the schedules it is mentioned that 'one partially covered car park will be allotted by the builder under their discretion. Just to provide you a background on 'partially covered' means, my car park is on the corner and hence there is a small cutting on the roof, though that is sufficient enough to get a cover for a mid-size sedan.

Thanks.
Asked 3 months ago in Civil Law from Chennai, Tamil Nadu
1. The association has no right to cancel the allotment done by the builder. So rest assured.
2. They can seek refund or compensation from the builder for non availability of car parking space.
3. Yes, you can surely retain the car park with you . The association can nit snatch the same and allot to some other owner.
4.You can challenge the said order of association from court and get a stay order.
Devajyoti Barman
Advocate, Kolkata
5137 Answers
54 Consultations
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1. If the car parking slots have been allotted in violation of the well settled legal principles then the entire allotment can be scrapped and fresh allotment may be made. However, they may seek injunction to restrain the association from cancelling the car parking.

2. The allotment can be challenged by the left out owners in the court. The principle of first come first serve basis should have been followed. 

3. If you want to stop the association from cancelling the car parking allotted to you then you may file a suit for injunction.
Ashish Davessar
Advocate, Jaipur
18055 Answers
445 Consultations
5.0 on 5.0
1) builder cannot sell car parking slots 

2) it forms part of common area for benefit of all members 

3) association can cancel allotment of car parking by builder 

4) fresh allotment can be made by drawing of lots for each year 

5) allotment of car slots cannot be on Naidu of first come first basis 

6) you have to seek refund from builder for money paid by you for car parking slot
Ajay Sethi
Advocate, Mumbai
23090 Answers
1212 Consultations
5.0 on 5.0
Parking spaces have often been a matter of prime concern for several apartment complexes. Often there are some disputes like allocation of spaces or the fee structures

According to the “Apartment Act” in most states, car parking is a part of the society’s common areas. Since the purchase of parking slots has been deemed illegal, the transaction to purchase would become null and void. Once the housing society is registered, it becomes the owner of all the common spaces of the apartment complex including the parking spots.

So, if there are limited number of parking spots, than the managing committee decides the basis of the distribution in consultation with the members. Some take the first come, first serve route and often perform quarterly reshuffles of parking spot to ensure no resident enjoys exclusivity. At times, if this is not practiced then the residents claim ownership of the parking spot.

A builder has to provide a certain number of parking spaces basis the number of units of houses. As per a mandate from the Mumbai High Court, the builder is not allowed to sell parking spaces outside the FSI consumed. This has been confirmed by the Supreme Court of India too.

The apartment complex “Solely” owns the common spaces (Stilt or Open)
The members DO NOT own these spaces
Allotment of Parking space is a “Administrative function” and the Managing Committee as well as General Body are empowered to allot the parking space to its own registered members
Registered members include family members and associate members.
Supreme Court ruled that developers cannot sell parking spaces as independent real-estate units.

A Bench of Justices R M Lodha and A K Patnaik in a judgement rejected the argument of a real estate development company that they are entitled to sell garages/stilt parking areas as separate flats to owners who intend to use it as parking facilities.
...
"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.

Thus it can be evidently seen from the judgments of supreme court and other courts that the parking slots are the properties of the association and canot be sold by the builder so you may not get any respite in this regard even if you aproach court. 
T Kalaiselvan
Advocate, Vellore
13910 Answers
127 Consultations
5.0 on 5.0
Hi
Back ground of construction lawsL

Specifically, in Tamil Nadu, if a car parking area is to be allotted or transferred, then the builder should have mentioned the usage of FSI for the construction of parking slot in the construction plan. 

The Tamil Nadu Apartments Ownership Act also states that all owners have a percentage of interest in the car park and hence can be transferred vide construction agreement to respective owners. 

Now coming to your query, when the builder has mentioned specifically the car parking slot in your agreement, that means that he has used the FSI for the construction of parking slot in the construction plan and accordingly transferred to you , your  interest in the car park vide your construction agreement. 

Answer to your specific questions

1) The Association does not have any right to take back the car parking slots that were sold by the builder to some of the flat owners and more so  if the allocation of car parking slot is specifically mentioned in detail in sale deed/ construction agreement. Car park slot once mentioned in agreement,  becomes part of the title to the property.

2)  The legal remedy to the owners who weren't allotted car park is to file a suit against the builder, if  they have paid for it . But legal remedies do not lie against the other car park owners who have been allotted as a part of their sale deed. 

3)  Yes you are entitled to the car park slot  and are free to use the car parking slot earmarked for you  exclusively for your own use and other flat owners cannot obstruct to your enjoyment and peaceful possession of the car parking. 

4)  Association has no Title or claim towards any property or part of property owned by flat owners. it is only an administrative body set up for the purpose of maintenance of flat. Association cannot decide on the terms of the ownership(including common spaces, car parking slots, servant quarters, Gym etc)  that has been entered in to by the residents with the builder directly and made part and parcel of the construction agreement between the builder and individual owner. 

5. Your allotment letter from the builder and also the fact that it is mentioned in your registered construction agreement is the proof of your ownership and NO person/ entity can make any claim whatsoever on your partially covered  parking. 

Hope this helps.
Rajgopalan Sripathi
Advocate, Hyderabad
868 Answers
43 Consultations
5.0 on 5.0

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