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Terrace or Parking in housing society can not be sold or purchased

It is observed that in some cooperative housing societies, the terraces have been purchased by the resident which was purportedly sold by the developers, also in some of the societies; top floor flat owners have claimed their right/ownership in connivance with the members of the Managing Committee. Well whether it’s purchased or claimed the right on terrace/parking in connivance with the office bearers, the legal position is absolutely clear that no open space including terrace and or parking can be sold as it is termed as “Common Area / Space”.

In accordance with the provisions of the Maharashtra Ownership Flats Regulation of Promotion of Construction, Sale, Management and Transfer Act 1963 commonly known as MOFA, developers/builders in our opinion have no right to sell the open car parking as well as the open terrace. It has been held in Ferena Co-operative Housing Society Ltd., V/s. Miss Synthia Lobo that interest in the car parking is independent of the interest which a member has in the flat occupied by him. The member does not have a transferable interest but only a restrictive interest in the parking space allotted to him. It has also been held in Ramagiri Keshavlal Virani V/s. Walkeshwar Triveni Co-operative Hsg. Ltd., that the builder cannot dispose of the terrace to one of the purchasers of the flat. It has been held in Shakari Nagar H.H.C.H.S Ltd., V/s. Shri J.G. Sharma that no member has an absolute right on the open space detrimental to the common interest of other members. The view in this regard is clear that ground floor occupants of a building cannot exclude other members of the said building from the user of the open space around it on the basis that it is only meant for him an apartment and not for others. As per the provisions of the Indian Registration Act 1908 subject to the exemptions the sale, purchases of immovable property as well as right, little and interest in the immovable property above Rs.100/- should be compulsorily registered. Such type of documents for sale of terrace/parking by the builder/developers is normally not registered.

It is also to be noted that in the approved plan of the building/society the terrace is also shown as open space and is not included in FSI calculations and member/s of the society cannot even cover the terrace. This means that all the members of the society have an equal right & share on the terrace and on the parking and one single member cannot enjoy that right exclusively. Therefore, the builder has no right to sell the terrace/parking to a member and deprive the other member of the open space rights as shown in Mumbai Municipal Corporations record. As per the law, open spaces including terrace are meant for the benefit of all the members who are entitled to the benefit under the plan and no single individual can appropriate any part of the same. As per the Maharashtra Ownership Flats Act 1963, section 4(1A) an (iii), (viii), (x) and section 10(1), the builder has absolutely no right or authority to sell terrace. In fact, none of the provisions, individually or collectively, authorize the builder or any other entity including the society, to sell a terrace and or parking including the stilt parking of the building.

In a landmark judgment given on this matter, Mr. Justice D G Deshpande of Mumbai High Court, on writ petition No. 4577 of 1985, decided on 5-7-1999 in the matter of Smt. Ramagauri Keshavlal Virani V/s Om Walkeshwar Triveni Co-op housing society Ltd & others. The learned judge passed the judgment saying, “For all these reasons, I have no alternative but to hold that judgments of the trial court, as well as the appellate court, do not require any interference”. Lastly, it was argued by Mr. Naik that since two bedrooms have the opening on the terrace, security of the flat of the petitioner should be maintained. Mr. Deodhar appearing for the respondent No. 1 has given an assurance that nothing will be done by the society to endanger the security of the flat of the petitioner. This will, however, not prevent the society in exercising its right over the terrace. Hence, petition dismissed. Rule discharged. Stay vacated. No order as to costs. Prayers for the stay of operation of this order is rejected.

6 thoughts on “Terrace or Parking in housing society can not be sold or purchased

  • There is one exception to this rule.
    We have a CHS which was made in 1972 and it had say x number of members. This was built before the Govts advisory to builders to have seperate parking area per flat and at that time parking area was considered as part of property with flat area.
    The members planned a ground + 2 floor building but discovered it was prone to flooding and raised the building on stilts at their own cost and through a loan which each of them repayed back in total. The terms of shelling the amount were that each of them would own an equitable parking bay in the created space. Just for security reasons they did not make demarcating walls between the bays so that one security guard could ensure security of both gates due to clear line of vision (so technically though one calls it stilt area it is owned stilt area per flat) They pay property tax since the Govt levied it. Now the CHS added more flats later where builder was not conveyed any right to the land and he thereby could not possibly convey this to new members. new members parking was amicably adjusted in open space of the CHS precints and they dont pay property tax. In such a case where people have paid for their stilt parking before Govt made rules, the bye laws uphold the ownership right of the stilt area with the original CHS members as in above case. Many misinterpret the rules for their own convenience and this clarity needs to be provided in the byelaws that sharing of open spaces or stilt area DOES NOT OVERRIDE ANY PURCHASED AREA IN CHS BUILT BEFORE THE GOVT ITSELF MADE THE SAID PARKING RULES. Otherwise it would be akin to stealing property of the residents for which they have paid with their sweat and blood.

    • I do not agree. The rules were very much in existence but the interpretation of the common space was as per the convenience of the seller / builder for the own interest and monetary benefits. The Hon’ble Supreme court very well clarified the interpretation and held that such common space cannot be sold by the builder / developer.

  • Dear Sir,
    Our society is register under mcs act & till date no conveyance deed of the society. In general body meeting passed the resolution that open space should be given on rent basis for car parking, but there is no parking slots in the common space as per the layout plan sanctioned by corporation.
    My question is how society can give parking on rent which is not as per layout plan.

    • Santosh,

      If in your society you have open space may be de-marked for play area etc. the same can be used for parking. It is not necessary that the plan needs to have specifically show a parking. Each member has right on the open / common space and hence society can take such decision in the interest of members.

  • I am co owner of plot of land along with my relatives, where the conveyance is identical in all respects. There is a ground + 2 floors structure on the land. The residents of the ground floor are claiming the garden surrounding the house to be theirs, the residents of the 1st floor are claiming the single garage and common driveway including the watchman cabin to be their exclusive property. Since I am on the 2nd floor the entire financial burden of maintenance and repair of the terrace is being borne by me. Also, I have no car parking inside the compound of the house
    I am forced to park my vehicle in the neighboring building where we all have our grandmothers flat.

    Kindly advise how can I get my relatives to share the expenses of the repairs and be allowed to park my vehicle and use the garden in the house.

    • Looks you do not have a registered CHS and do not know how many members do you have in total? As per bye-lays, garden, terrace, open parking etc. are common property where every member had equall right and no one has exclusive right. So all the expenses needs to be shared by all. In absence of registered CHS it will be difficult to enforce so my suggestion would be to form a CHS and the proceed as per bye laws.

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