Can a common area be allotted to a flat owner for exclusive use
PM
(Querist) 26 March 2012
This query is : Resolved
I recently bought a flat from a reputed builder. The flat is of area 1600 sqft. It has a attached garden to the balcony. The garden is of area 450
The builder has
1. Done the main registered agreement which mentions
a. The carpet area of the flat
b. The area of the balcony
c. Exclusive use to one parking slot
d. It does not mention that he has sold me (by charging a premium rate) the garden area
2. Notarised agreement for exclusive use for the Garden area. This just mentions the area of the flat and no charges that the builder has taken from me
On having digged further, I find that the garden area is actually a part of common area. My queries are
a. Can the builder allot a part of the common area for exclusive use to any owner of the flat. The builder has not mentioned the same as restricted area in the agreement
b. The builder has formed an Association. In this case can any other owner(s) take an objection on the same. Also what will be the legal weapon I have to fight for the right.
Your request on the same will be highly appreciated
Raj Kumar Makkad
(Expert) 26 March 2012
Common areas cannot be sold by builder that is why builder has not mentioned the same in the main agreement. You both know this fact but lust to grab money by builder and your lust for a valuable land for just some money are creating hurdle to accept this truth.
Any other member of the society not only can object it but all members can snatch exclusive possession of you over the park constructed/developed over common land.
PM
(Querist) 26 March 2012
Thanks Raj for your valuable comment. So the notarised agreement for Exclusive use of the area has no legal value ?
ajay sethi
(Expert) 26 March 2012
it has no legal value . builder has no powers to sell common area , parking space . once society is formed members will object to your use of common area . land you in legal mess with society .
PM
(Querist) 26 March 2012
Thanks Ajay.
In the registered agreement, the builder mentions Parking as a restricted area. He also says that the alloted parking cannot be disputed and nobody can change the allotment of the parking space done by the builder. Does this have a legal significance ?
ajay sethi
(Expert) 26 March 2012
nope as per suprem court judgement builder cannot sell car parking slots .
R.Ranganathan
(Expert) 27 March 2012
If car parking area comes in the common area portions then the same cannot be sold to anyone. Supreme Court judgement is with regard to areas in the stilt portion of the building.
PM
(Querist) 27 March 2012
Thanks all. My further queries are
1. The builder has not sold me the common area. So I am definetely not the owner of the space. This is clear. But can a builder allot a part of the common area for an exclusive use to an owner ?
2. In case the garden (with an exclusive right ) comes in dispute, will their be an impact if I want to sell my flat
3. In the case of the dispute, can I ask for an exclusive access due to security and privacy reasons ?
4. What do you suggest me to do as an expert. Should I sell it off and think of buying a new property or you think that it should to be a big issue knowing the knowledge of the people in india
V R SHROFF
(Expert) 27 March 2012
You compound your area, and be in exclusive use ans it's possession. You have Notorised Agreement, which other members do not have. You or other members are unaware, whom that part of land belong to. Only builder knows ownership!!!
Possession cannot be evict without due process of Law. Let Builder be party in that civil suit, that may be filed by Co-op Society. Soc not in existence , and u possess it before society born.You grow tree, plant, etc, no one can cut it later to use as common passage.
Why sell off.
PM
(Querist) 27 March 2012
Thanks Shroff. Appreciate your reply.
There are atleast 50 other flat owners whom the builder has alloted exclusive use of the adjacent garden and the above terrace. So in case somebody takes an objection on my garden it will be an objection on all 50 flat owners right ?
Also I know that I don't own the place and its a society's (Association of Apartments) place. But as a promoter can the builder allot it to an owner for exclusive use ?
Also if the property comes in dispute, it will only be the garden. I can still sell my flat right ?
V R SHROFF
(Expert) 27 March 2012
VERY RIGHT:
SO ENJOY IN UR GARDEN
CALL US TOO,
ONE CANNOT GET ANYTHING WITHOUT TAKING CALCULATED RISK. AND THERE ARE 50 MORE SAILING IN THE SAME BOAT!! SO WHY WORRY??
PM
(Querist) 27 March 2012
Shroff thanks for the encourangement and making me feel comfortable.
But I am surprised how can a builder/promoter actually give me an exclusive use right when he is not authorised to do so. (Though the good part is he has not sold it to me ) Can the builders do this.. does every builder do it ??
Again, thanks a ton to all the experts who helped me with this query
V R SHROFF
(Expert) 27 March 2012
Q"
how can a builder/promoter actually give me an exclusive use right when he is not authorised to do so. (Though the good part is he has not sold it to me ) Can the builders do this.. does every builder do it ??
Ans : He is no fool; he knows his calculated risk. May have disputed rights, or rights where formalities incomplete or in objections, or any legal problem, with govt. ;
everything cannot be disclosed, but must have hidden rights acquired on payment in cash.
Why dig grave, when recd possession.
