New Delhi: The Supreme Court has ruled that
builders/promoters cannot sell parking areas as independent
units or flats as the same is to be extended as "common areas
and facilities" for the owners.
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.
"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 organisation. 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 judgement said.
The apex court passed the judgement while dismissing the
appeal of the promoter Nahalchand Laloochand Pvt Ltd
challenging the Bombay High Court`s ruling that under the MOFA
(Maharashtra Ownership Flats Act) a builder cannot sell
parking slots in the stilt area as independent flats or
garage. The apex court accepted the argument of the flat owners
of Panchali Co-operative Housing Society, Anand Nagar,
Dahisar (East), Mumbai, that even if they had entered into any
prior agreement or contract with the builder that they would
not lay any claim on the parking areas, the same would not
have any legal sanctity.
It brushed aside the claim of the promoter that by
treating open/stilt parking space as part of ?common areas?,
every flat purchaser will have to bear proportionate cost for
the same although he may not be interested in such parking
space at all.
"As a matter of fact, in so far as the promoter is
concerned, he is not put to any prejudice financially by
treating open parking space/stilt parking space as part of
?common areas? since he is entitled to charge price for the
common areas and facilities from each flat purchaser in
proportion to the carpet area of the flat," the apex court
said.
PTI
