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Parking areas cannot be sold as flats or garages: Supreme Court

Comments(40) Sub Category:Community,Court Orders,Legal,Realty News Posted On: Sep 02, 2010

The Supreme Court has that ruled builders/promoters cannot sell parking areas in the stilt area as independent units as the same is to be extended as “common areas and facilities“ for the owners. 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 parking slots in the stilt area as independent flats or a garage.

“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 “saleable independently as a flat or along with a flat”, the court said in a judgment.



The judgment delivered Tuesday by a bench of Justices R M Lodha and A K Patnaik. Justices R M Lodha and A K Patnaik in a judgment rejected the argument of a real estate development company that they were entitled to sell garages/stilt parking areas as separate flats to owners who intend to use it as parking facilities.

“If a promoter does not fully disclose the common areas and facilities, he does so at his own peril. Stilt parking spaces would not cease to be part of common areas and facilities merely because the promoter has not described the same as such in the advertisement and agreement with the flat purchaser. “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 organization. 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’,” Justice Lodha, writing the judgment, said.
Source: HindustanTimes



40 Responses to “Parking areas cannot be sold as flats or garages: Supreme Court”

  1. dr vilas wade says:

    friends
    Nowdays we are able to bye flat easily &hapily.But todays need is flat with parking places.our supreme court should give directions to developers to provide adquate parking places either by sell or freely.But with new bye laws residentials members are not going to solve theire parking problem but it is trigger factor for unnessary quarrels & aggressive issues at society.
    our aim should to solve to solve our parking facility.
    Actully developer should create sufficient parking .
    We are paying for all requirement materials including pencils, news paper
    How one can expect free still parking places from developer.

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  4. Raminder Singh Sahota says:

    I am seeking others, who wish to file cases against Builders to recover parking space money taken by him.

  5. MD Srinivsan says:

    Sir / Madam,
    We bought Flat and we were not told about our 4 car parking 2 and back 2 (in two rows) – (In the plan it is there but we were not told about the pillers) – We signed with agreement with the builder for 3 Lack for car parking. Now everytime we will be disturbed to take out the car parked infront of our car. How we can resolve. There no space for every owner to take out the care without disturbing other. Buidler says to ADJUST – Do we need to adjust at the cost of 3 lac. How to find is this carparking land is own to us than a commen place ? Is this should be declared to us as undevide share of land. Please help us

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  7. Balasubrahamanyam says:

    The builder in a five storeyed apartments/group house has sold car parking space in the cellar/Stilt floor to those oweners who wanted on payment. Later he constructed two more dwelling units in the cellar or Stilt floor making the same very congested. My question is can a builder construct dwelling units in the celar/Stilt floor? Are there Court judgements or Government rules in this regard? Will someone please clarify my point?
    Balasubrahamanyam

  8. Urmimala Das Gupta says:

    Sir i am Smt Urmimala Das Gupta, purchase a owner ship flat from P.M DEVOLAPERS. At chandanagore, hooghly, West Bengal. After sign the registed Deed promoter not given any parking space for parking the byke and cycle. But at time of purchase he told us this is the parking space showen in the advertisement. After sale of all flat he told this parking space (which is stilt) is my and saleable either flat owner or outsider. He told i am not mention on the reg deed it is common. We are file a injunction petetion on this matter at city civile court of chandanagore hooghly, by arrising main two que in honarable court. That this is the question of privecy you can not rent or sale the parking space inside the apartment, this is lapse our serqurity. And as per sc judgement you can not sale stilt parking. But honarable chandanagore city civil court regect our injunction petetion by given the cause, this is not mention on your deed that it is common area. And sc judgement is based on MOFA. For this is not aplicable and comply in west bengal apartment ownership. act. What our next step we are taken for illigeal activity doing by promoter. Pl reply as your earliest. My mb no.09831062174. Thanking you. URMIMALA DAS GUPTA. Age 55. Unmaried women.

  9. Mansi says:

    Hello, I am planning to purchase a ground floor flat in a 5 storey building.Actually there are two flats on the both sides of the parking area. The parking area is very spacious. The flat size is just 450 squire feet only. I like the locality so I want to purchase it. The parking area is for common use for all the 8 residents of the building. Shall I purchase it? Plz. somebody reply as soon as possible. Can we get into some trouble after purchasing it?

  10. ABV Vijaya Lakshmi says:

    Parking charges of Rs.2 lakhs were collected in the year 2009 and the flat construction has been inordinately delayed and not yet handed over although as per the brochure, it was to be given possession at the end of 2010.
    Whether the amount of Rs.2 lacs can be claimed at the time of possession?

  11. ABV Vijaya Lakshmi says:

    I have observed that even State owned Housing Complexes like Andhra Pradesh Rajiv Swagruha Corporation Ltd has been levying parking charges in the CELLAR with impunity in utter disregard and violation of Supreme Court directive.
    The private builders are a highly powerful mafia with high level connections with the State Chief Minister and the Cabinet Minister holding the Housing portfolio besides Secretary (Housing) mostly a highly corrupt IAS bureaucrat in our country. Unless kick-backs are given to them by the Builder, necessary approvals can’t be granted.
    Refusal to pay the parking charges may endanger one’s own life as the builder may use his brute force and will not hesitate to liquidate the allottees. Even Consumer Courts are favouring Builders. The case in point is that when my son has filed a case recently against CHALAPATHI ESTATES PVT LTD in Hyderabad, the case was dismissed by the Consumer Forum-II, Nampally despite strong grounds in his favour. However, he challenged the decision in the State Commission and won the case eventually.

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  13. Olivas says:

    Great topic! I need to spend some time learning more or understanding more. Thanks for wonderful information I was looking for this info for my mission.

  14. Carlan says:

    The efforts you have put in this content to inform all of us is great! Regards for all the great blog posts.

  15. santosh says:

    CAN I SALE MY PARKING GARAGE TO THE NEW OWNER ? OR SHOULD I HAND OVER THE GARAGE TO SOCIETY ? BUT THE PERSON HAS ALREADY BOUGHT A FLAT FROM ME AND SOCIETY SAY’S THE NEW OWNER CAN’T USE THE PARKING IT MUST BE HANDED OVER TO SOCIETY.
    PLEASE HELP ME I AM FROM MUMBAI, AND LOT OF MISUNDERSTANDING IS HAPPENING WITH THE PERSON WHO HAS PURCHASED THE FLAT DUE TO THIS SOCIETY MEMBERS.

  16. ABV Vijaya Lakshmi says:

    SOMEONE ABOVE HAS USED THE TERM ‘PODIUM’. WHAT I UNDERSTAND ABOUT THE MEANING OF PODIUM IS “DIAS” / “PLATFORM”. THEREFORE, I AM AT A LOSS TO UNDERSTAND AS TO WHY THIS TERM HAS BEEN USED AND HOW IT IS RELATED IN THE PRESENT CONTEXT UNDER DEBATE/DISCUSSION.
    IN ANOTHER CLARIFICATION SOME OTHER GENTLEMAN HAS GIVEN A VIVID DESCRIPTION THAT IF THE THREE SIDES OF THE ‘GARAGE’/'PARKING LOT’ ARE CLOSED, THEN THE BUILDER HAS EVERY RIGHT TO CHARGE THE PARKING CHARGES THRU THE NOSE.
    HOWEVER, IN THE INSTANT CASE, THE BUILDER IS PROVIDING PARKING SPACE IN THE “CELLAR”(PERHAPS IN TWO TIER) OF HIGH-RISE TOWERS OF 14 STOREYS EACH OF ‘A’ & ‘B’ IN SECTOR-61, NOIDA-201301. UNDER THE AFORESAID CIRCUMSTANCES, WHETHER THE BUILDER CAN FLEECE THE ALLOTTEE WITH A HEFTY SUM OF Rs.2 lacs IN THE VERY BEGINNING OF THE CONSTRUCTION ITSELF?
    WILL SOMEONE GIVE AN AUTHENTIC CLARIFICATION ON THE DOUBTS ENTERTAINED BY ME?
    WITH UNCEASING GRATITUDE,
    ABV VIJAYA LAKSHMI
    02-7-2011

  17. Kittu says:

    @ABV Vijaya Lakshmi
    As per the judgement ‘For the purposes of MOFA, and particularly Section 2(a-1), the term ‘garage’ must be considered as would be understood by a flat purchaser and such person would contemplate garage which has a roof and wall on three sides.’
    Thus, if your ‘covered parking’ meets the definition of ‘garage’ above, it is ok for the builder to charge separately for the same. However, if it does not, then the builder cannot charge separately for it.

  18. Fightright says:

    @MILIND MAHAJAN
    I have read the judgement of the SC (link: http://www.borivaliwest.com/?tag=bhk&paged=3). To answer your question, Wherther parking in podium can be sold out by developers ?, my answer is NO, the builder cannot charge separately for podium parking since this forms a part of ‘common amenities’, the cost of which should be included in the rate per sq.ft.

    @neeta gulavane
    The judgement is applicable to all builders who are charging separate for stilt/ podium/ open parking. If the builder is charging separately, he is doing so contrary to the law and is liable to be penalised.

  19. Bed Bug Killer says:

    Hi this is a great informative post. Bed bugs are really a nuisance and should be totally eradicated. – Ray

  20. ABV Vijaya Lakshmi says:

    ABV Vijayalakshmi says:
    September 5, 2010 at 10:38 am
    In my case, the Builder had already collected Rs.2 lacs as Covered Parking Charges, said to be mandatory at least for one Vehicle (extra to be charged if the flat owner is having more than one automobile) in the beginning itself along with second installment.
    Whether the recent APEX COURT Order will bring some relief to people like me? If it is so, whether I can deduct the aforesaid amount of Rs.2 lacs already paid at the time of final payment to the Real Estate Company?
    It will be appreciated, if some knowledgeable persons interpret and clarify the above Ruling given by the Highest Court of the Land.
    Waiting for elucidation with mounting anxiety and thanking in the meantime,
    ABV Vijaya Lakshmi

  21. neeta gulavane says:

    after registration of the society but before conveyance of the society, does any builder have the right to sell the stile parking? Do the judgement given by the Supreme Court on 2nd Sept 2010, applicable to all the builders or it is case to case verdict. The judgement do not specify whether it is applicable in every case. So, we can see that though such judgement is given by SC, builders are selling the stilt as well as open parking. the judgement is not clear about the podium parking. Shall I expect the reply to may query?

  22. Eijaz says:

    Can somebody explain where should 1 complain if a builder does not agree to complete the registration unless the investor pays the parking amount ? can any reputed lawyer guide ?

  23. [...] 2010, a developer of a housing complex cannot charge members for parking space. The ruling said the developers cannot sell open spaces and stilt areas in their buildings as these are meant for common use and form part of the [...]

  24. [...] Sept 1 Supreme Court ruling prohibits builders from selling parking area as independent units to flat buyers. A division bench of Supreme Court has ruled that builders cannot sell parking areas [...]

  25. psn atmarm says:

    The judgement has created more problems than solving it.The ruling deferntiates between a parking slot covered by three sides and one not covered by three sides.It appears to be not reasonble as some multi-vehicle parking slots in a stilt area may qualify as GARAGE as envisaged by the said ruling.Similerly the express provision in new by-laws regarding sale and purchase of parking place to the member was not discussed in the said ruling at all.It does not say anything about the age-old transactions where parking slots are bundled with flats and the entire transaction is stamped and registered.Further it does not say about old cases where the new DC Rules where not in existance.If the builder is allowed to recover exta money from each purchaser then the new amendment regarding sale as per carpet area becomes infructeous.

  26. Santanu Deb says:

    Dear Sir,
    My self Santanu Deb from kolkata. I booked a flat in Kolkata & going to sign agreement with builder within Tuesday, where builder is charging Rs. 2 Lakh open car parking par flat. Here my question regarding above said judgment -” The Supreme Court has that ruled builders/promoters cannot sell parking areas in the stilt area as independent units as the same is to be extended as “common areas and facilities“ for the owners” – is applicable for West Bengal ?
    My Builder says this rule is applicable for Mumbai only ! Please reply?
    If so sir it can save another 2 lakh from our savings.
    Santanu Deb

  27. Prabodh says:

    Dear Sir,

    We have developed this website with the intention of sharing our experience in dealing with the cheating builder and to expose the cheatings- builders commit.

    Please to see this double click on the URL.http://swayamsevak.tripod.com/
    It gives details of our problems at APEKSHA RESIDENCY and how we fought the case in District Consumer Court and also at State commission..

    We collected lot of information which is being shared in this website. Knowledge is POWER. Information is POWER.

    It empowers you to fight any illegal acts of the builders. Our ignorance of Law is exploited by these builders.

    Our website provides information of other JUDGMENTS wherein flat buyers are proved right.

    We have to realise that It is implied that builder has to provide all the statutory certificate / documents like Building licence, Completion/ occupation certificate, Deed of Declaration etc even if it is not mentioned in your agreement. Any clause contrary to the the Law in your agreement is not valid. If your agreement allows the builders to have right in Terrace, it is not valid as Terrace is the common area jointly owned by all the flat owners. Association / Society has right to adminster the Terrace.

    He can not charge saparately for car park.

    Past news involving buiders also show that SC does not take violation of building laws lightly.

    Builders in Karnataka are awaiting Akrama Sakrama as it is a Bailout Scheme in favour of builders by the goverment to convert illegal construction to Legal one.

    They think that they can cheat all the ignorant people all the time. With the improved awareness, people will start asking more relavent questions and a time comes when it will not be easy to cheat any buyers of the flat.

    Please forward this email to all your friends so that awareness of the extent of cheating in building industry is spread all over.

    Thanking you,

    Yours sincerely,

    Prabodh C. Bolur

  28. Ranjan Pandit says:

    I have purchased a flat in Pimple Nilakh. My flat is under construction and will i have to pay for the parking after this judgment? weather the supreme court order benefit me or i’ll have to pay parking charges??????
    reply……..

  29. Worried says:

    Is this applicable to the deals done in past for resale properties?

    Let me explain my situation in brief:

    I bought a resale property, along with the reserved parking space allotted to the owner last year. I paid an additional amount to the owner for stilt parking. The registered document for my apartment ownership also mentions about it.

    The housing complex is approx 8-9 yrs old. But the co-operative housing society is not yet formed (It’s still proposed. They are working towards it).

    But now chairman and few members of the proposed society want to take advantage of this decision and are working towards declaring each parking space as common parking space forcibly. (Since chairman owns a car and doesn’t have a parking space of his own.)

    The earlier owner will also be reluctant to refund my money back.

    Since I didn’t buy the parking space directly from builder, is this judgment applicable to me also?
    What should I do in this case to retain my covered parking space?

  30. MILIND MAHAJAN says:

    court verdict is for stilt parking. but it is not clear about the podium parking consructed by developers. Wherther parking in podium can be sold out by developers ?
    can any body guide me in this matter as I have paid Rs 5 lacs for podium parking separatrly consutructed by developers.

  31. Prabodh says:

    Why car park can not be sold separately?
    Let us clear the perception of Common areas and car-park.

    While booking the flat, we have paid for:

    1.We have paid for Undivided share of Land, registration charges, and legal charges. Therefore we all own the land jointly. Therefore, any part of the land can not be sold by builder as open car-park.

    2.Builder obtains the permit from MCC, to build & sell certain number of flats of certain sizes on certain number of floors. Total super built up area permitted is based on the MCC’s rules on certain FAR. Please note that car-park is not considered while calculating FAR.

    We have paid the Price for the super built-up area of the flat which includes builder’s profit. The construction cost of the building is divided by the total super built-up area permitted to get the Rate per (sq.ft)unit of super built-up area. This is how the Price of each flat is calcutated . This means we have also paid for all the common areas in the building.

    Common areas include basement, ground floor stair case, Passage/lobby on each floor, Terrace over the roof of permitted top floor, all Columns, beams, etc. Therefore we all jointly own common areas. The construction can not be made with out foundation, columns and beams in all the floors. The cost of the flat construction includes all of them. Therefore we have paid for the stilt areas therefore stilt areas can not be sold by the builder separately.

    When multi floor carpark is constructed, then carpark area is considered in FAR calculation.

    3.We have paid separately for Electrification and water supply charges, registration charges. Therefore we jointly own all the electrical installation like Electric Lifts, Transformer, Distribution board, cables, water pump motor , water tank, plumbings etc for common use.

  32. Gk says:

    What i understood is :
    The ‘stilt area’/'open to sky area’ should be mentioned under ‘Common area’.
    And that space should not be sold as ‘parking area’ by the builder.

    Is this new ‘common area’ charge-able ?

    In Bangalore all the builders charges ‘Car parking area’ under ‘stilt/open’ separately from 1.5 to 2 Lakhs. Is there any benefit for the Buyers of ‘under construction property’ now, with this rule?

  33. abc says:

    how does it matter…
    for new agreements.. builders will increase the base price of the flats and include parking as free :P

  34. Priya Miraji says:

    But it is further clarified that….“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 “saleable independently as a flat or along with a flat”

  35. Gk says:

    Thank you Mr.Shivanand, The heading was misleading. and we din’d read it properly.

  36. ABV Vijayalakshmi says:

    In my case, the Builder had already collected Rs.2 lacs as Covered Parking Charges, said to be mandatory at least for one Vehicle (extra to be charged if the flat owner is having more than one automobile) in the beginning itself along with second installment.
    Whether the recent APEX COURT Order will bring some relief to people like me? If it is so, whether I can deduct the aforesaid amount of Rs.2 lacs already paid at the time of final payment to the Real Estate Company?
    It will be appreciated, if some knowledgeable persons interpret and clarify the above Ruling given by the Highest Court of the Land.
    Waiting for elucidation with mounting anxiety and thanking in the meantime,
    ABV Vijaya Lakshmi

  37. shivanand says:

    Hi,

    pls. read the judgment carefully.

    It says: ‘a builder cannot sell parking slots in the stilt area as independent flats or a garage.’,

  38. I have already paid car parking amount to Builder & Possession of flat is due in December,2010. In this case what can i do?

  39. Gk says:

    Oh! What can i do for my under construction (half paid) Flat in bangalore for which builder is charging 1.75 Lakhs? Do we get any benefit with this order ?

  40. Manoj Batra says:

    Is this applicable to flats booked in the past but possession not yet received? Can we refuse to pay parking charges at the time of offer of possession?

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