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Open, stilt parking spaces are common areas, builders can’t charge extra: SC.......Krishnadas Rajagopal
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.
“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.
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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