Builders cannot charge extra for car parking space: Flat purchasers need not shell out extra money from their savings to buy parking spaces, both open and closed, from property developers at the time of sale.

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“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”, the Supreme Court has ruled.

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 verdict sets a precedent even as the apex court took note that builders/promoters/developers were “indulging in malpractices in the sale and transfer of flats and the flat purchasers were being exploited”.

The judgment delivered Tuesday by a bench of Justices R M Lodha and A K Patnaik comes in the backdrop of interpreting the legislative intent behind enacting the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1969.

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The court made the observations while dismissing an appeal filed by Mumbai promoter Nahalchand Laloochand Private Limited, seeking permanent injunction against a co-operative housing society to whom they had sold a few properties in Anand Nagar, Dahisar (East) in the city. They accused society members of “encroaching” into 25 stilt parking spaces in the building.
The court said promoters will not be put to any financial prejudice by treating parking spaces as common areas since “he (promoter) is entitled to charge price for the common areas and facilities from each flat purchaser in proportion to the carpet area of the flat”.

“Can a promoter take a common passage/lobbies or say staircase or the RG area out of purview of ‘common areas and facilities’ by not prescribing or defining the same in the ‘common areas’?” asked the court and illustrated how the Maharashtra law mandates the promoter to describe the “common areas and facilities” in the advertisement as well as in the agreement later with the buyer.

“The promoter is required to indicate the price of the flat, including the proportionate price of the common areas and facilities. If the promoter does not disclose the common areas and facilities, he does so at his own peril,” the bench observed.

The court clarified that “stilt” or covered parking spaces were “common areas”, and would not cease to be so even if the promoter fails to describe them as common spaces.

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9 Comments

  • ashok bhalla says:

    In our cooperative group housing society registered under DCS Act, 2003 has multi-storeyed flat complex with stilt space. The members/residents who are residing in this flat complex are claiming exclusive rights over the use of stilt area/space as they claim to have paid cost of the flat which includes the cost of land on this structure has been raised. Whereas the other members who are residing in other complexes without stilt are claiming rights over the use of stilt area as they claim it a common area. Nothing is mentioned in the bye-laws of the society over the use of this stilt area or car parking policy in the society. Kindly clarify which of the two claims is legally correct?

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  • Mihir Shah says:

    Dear Sir,

    Our society (CHS) had passed a order few months back with respect to allotment of unreserved open parking space on a first come first serve basis for a lump sum amount (one time only). However, in the allotment it had been mentioned that the CHS can take back the allotted parking space from the member on “justifiable grounds”. I paid the said consideration to the CHS through cheque and was allotted the parking space. However, recently the CHS has altered the rules for allotment of parking space and has decided to allot the same on a lottery system for a fixed annual consideration (recurring yearly charges). Hence, the CHS has asked me to return the parking space allotted earlier and they shall refund the amount paid by me earlier. However, I don’t want to return the said parking space since I had already paid the amount demanded by the CHS. What options do I have now?

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  • Nikhil says:

    Hi, with respect to above case and the note at bottom, I request your help on below:
    1. Purchased a flat with stilt parking in June 2012 in Mumbai
    2. Builder handed over parking allocations based on above
    3. I sold my car which I used to park in this stilt parking lot
    4. Temporarily have allowed my friend to park car in this parking lot who stays in same complex but different society. That society is part of society of societies of which our society is also part.
    5. Above was discussed in AGM and as per the minutes, society accepted a proposal to charge me Rs. 300 towards rent for previous month and to discontinue his parking car in my parking and also charge Rs. 25 per day if parking is not surrendered.
    6. In same AGM society has proposed that owner can allow using the parking to only persons in blood relation and they have to be part of the same society.

    Can you please help?

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  • Bhakti says:

    Hi, We have purchased a flat in Thane. We own a car and have parked it in open space. We own a scooter too which we have parked in a friend’s parking. Now d builder is charging ₹ 250 per month for every vehicle may it be open or stilt parking. Inspite of such costly flats are we liable to pay this monthly charge which is other than the maintenance charges..plz help..need proper advice.. thanks..

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  • Shilpi says:

    I have purchased a new flat in Noida and builder alloted me only open car parking despite the fact that there are several covered parking space available. But builder is asking 2 lacs for it. Can I claim covered car parking as a mater of right in the light of above judgement.

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  • Ram Narain says:

    I have been allotted a 2 BHK flat in Rail High Risers (Sector-10 Sonipat) by Indian Railway Welfare Organisation (IRWO) before issuance of Completion Certificate from HUDA. They have also charged Rs.60,000/- for allotment of Open Parking Space. I have heard from someone that Delhi High Court has ruled out that no builder can sell open parking space to allottees. If it is true, please let me know the case details enabling me to demand for a refund from IRWO for that. Thank you Sir!

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  • B. Iyer says:

    Ours is a redeveloped CHS in Mumbai. Prior to the redevelopment all the existing members signed agreement with the builder stating the stilt area would be in the possession of the developer. The builder had after completion of the construction and obtaining part OC had given from the stilt area parking space to some members who had an arrangement with the developer by payment.However subsequently another member who was also a party to the agreement has forcibly occupied the place earmarked for my flat and parks his vehicle and also keeps a bike etc there whenever he moves his vehicle. The Society members had asked him to vacate the parking space earmarked for me, but he has refused citing Supreme Court Judgement. Kindly let me know whether the Supreme Court Verdict applies in this instance and what is my remedy. Thanks Iyer

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  • B. Iyer says:

    Sorry, I have’nt received your comments. Awaiting for the same.

    Regards

    B Iyer

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  • Ajay Jagtap says:

    I have purchased a new flat 2BHK in pune, Maharashtra and builder Kolte Patil not allotted me covered parking space and covered parking space not purpose fully mention in the agreement. I request builder for covered parking space but builder is asking me 3 lac cash for the same. Please guide me

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