The tamilnadu apartment ownership act 1994 and rules thereunder
sreevichin
(Querist) 25 January 2013
This query is : Resolved
The Absolute sale deed (year1980) given to the apartment owners does not add up to the total extent of land . Now in 2013 the apartment owners want to redevelop the project. the undivided share retained by the original developer before 30 years is not represented by any apartment in the complex. does the original developer still have any right in the redevelopment. The Tamilnadu apartment ownership act 1994 and rules talks about the DEED OF APARTMENT, Where it says the uds is to share according to the plinth area of the apartment. the original developer does not have any apartment in the complex not does he possess any ownership of any apartment ,if at all the original developer goes ahead with the redevelopment will the sale deed signed by the original developer for the left out portion valid ,( will it be accepted by the bank etc for purpose of loan) since the property as a whole belongs to the apartment owners no portion for retention is contemplated by the said act
Raj Kumar Makkad
(Expert) 26 January 2013
The common areas though may not form the part of the individual sale-deed but after the formation of the society, the same now belongs to the society and not to the re-developer who even do not possess any specific site/flat in the premises. Banker do include such areas while deciding loan to eb advanced to the societies.
sreevichin
(Querist) 26 January 2013
Sir, Thanks for the reply, Actually the original developer ( 1980) has not fully handed over the full extent of the plot, he originally planned for 2 floors and he stopped construction in 1980 with 1 floor ,that is why there is shortfall.Now( 2013) the doubt for the apartment owners is whether he or the developers legal heirs still has any right over the schedule A property.meaning the plot on which the redevelopment is to take place. there is a mistake that the apartment ownersthey did not check whether full extent of land is handed over as uds to individual apartment owners
Raj Kumar Makkad
(Expert) 27 January 2013
Even if the facts of the matter stated by you are the same, all plot owners jointly may serve a legal notice to the original developer and may seek anding over the entire area.
sreevichin
(Querist) 28 January 2013
Thanks for reply sir,1.can we go ahead with reconstruction,without issuing such notices,to the original developers heirs(in which case how to sell to the new buyer of the apartment), can the original developer object to the redevelopment 2.do the above on the strength of The Tamil Nadu apartment ownership act,1994 Sec 16(a) reproduced
3.16. Disposition of property on destruction or damage –
Wherein the event of the property either in the entirety or in part being damaged or destroyed and the society or the Association of Apartment owners has not undertaken to repair, reconstruct or rebuild within a period of ninety days or such further period as may be specified by the competent authority from the date of damage or destruction,-
(a) the property shall be deemed to be owned in common by all the apartment owners in the same percentage as the percentages o the undivided interest specified in the Deed of Apartment;
(b) the undivided interest in the property owned in common which shall appertain to each apartment owner shall be the percentage of the undivided interest previously owned by such owner in the common areas and facilities and the limited common areas and facilities;
(c) any encumbrance affecting any of the apartments shall be deemed to be transferred in accordance with the existing priority to the percentage of the undivided interest of those apartment owners in the property.
Also the same act has a overruling provision in Sec 25 to override other laws inconsistent to the provision in this act Sir with reference to this act can we go ahead with reconstruction can the original developer object.if so what relief do we have we want to cautious without litigation since none of us have an alternative accommodation to stay.Can we go ahead with preparation of Deed of apartment and registering the deed of apartment as per Sec 11 of the said act. and then go ahead with reconstruction
Raj Kumar Makkad
(Expert) 28 January 2013
1. You need to serve legal notice.
2. Though there is no possibility of any harm from the original developer as per provisions mentioned by you in your query yet for the safer side, it shall be good to intimate the legal heirs of the deceased original developer that the land has been distributed by you all allottees of the flats as per rule and that notice be treated just as an intimation.
sreevichin
(Querist) 28 January 2013
Thanks thanks sir for the time and wonderful reply ,for clarification given ,1 supposing if the original builder/heirs, himself takes up the redevelopment project,total cost born by himself/heirs and giving all of us the apartment due to us, in such a situation will the sale deed executed by the original builder/heirs of the original builder, be valid sale to new buyers , because the original builder has no right over the property as per TN apartment ownership act. whereas he may have as per Transfer of property act.
R.K Nanda
(Expert) 29 January 2013
no more to add.
Raj Kumar Makkad
(Expert) 29 January 2013
The original builder or his legal heirs have got no right to cancel either of the sale-deeds even though those had even not right under the Act to get the registration of sale-deeds just because the property had vested in the society.
M V Gupta
(Expert) 30 January 2013
You have stated that the Developer planned to construct two floors but stopped the construction in 1980 after constructing one floor only. Hence the sale deeds given to the apartment purchasers do not convey the entire land to the apartment purchasers. Therefore it appears that the Developer/his successors have with them the ownership rights of the remaining portion of the land. If apartment purchasers want to redevelop the property they can do so only to the extent of the land conveyed to them under the sale deeds and not to the full extent of the land. Hence it may be necessary for the apartment owners either to purchase the remaining portion of the land or enter into an agreement with the Developer or his heirs to redevelop the property jointly on ceertain agreed terms.
sreevichin
(Querist) 30 January 2013
But Respected sir,While browsing i State Bank of Travancore v. The State of Tamil Nadu - Writ Petition No.39468 of 2002 [2003] RD-TN 940 (23 October 2003) , decision reproduced here
24. A person cannot retain any undivided share in the land unless he is an apartment owner and in possession of the constructed area in the building. The Car parking is not owned or possessed by Respondents 4 to 14. Inasmuch as possession of the entire car parking had already been handed over , after demolition of the structure pursuant to the undertaking given before this Court by R2 and R3, to the flat owners and they were not legally divested of their possession , the car parking in law, is in the possession of the petitioner and the other apartment owners. It is not in the possession of the respondents 4 to 14; and they have no interest in the car parking area. Hence, Respondents 4 to 14 cannot seek for regularization by payment of fees and become owners of the 241 square meters of the car parking area. Their application for regularization therefore is liable to rejected summarily.
So no right for retention in undivided share of land is contemplated once the apartment is handed over , so no question of retention after 30 years this is my humble opinion. please clarify , this is a serious matter because the building is planned to be demolished and to be reconstructed.
sreevichin
(Querist) 30 January 2013
http://www.rishabhdara.com/sc/view.php?case=73964 I have cut and pasted the link above . please do reply
sreevichin
(Querist) 02 February 2013
Dear respected legal community,
kindly clarify in light of the above said decision in Madras High court. The question is not yet resolved due to doubt raised my Shri Gupta ji
Kindly clarify
M V Gupta
(Expert) 02 February 2013
Unless the judgement is read fully, it is not possible to give further comments. The case appears to relate to parking space. If the judgement is reported in any journal pl let me know.
Raj Kumar Makkad
(Expert) 02 February 2013
I have read over the referred judgment and according to that the previous builder or his legal heirs have no connection with the apartment.
sreevichin
(Querist) 02 February 2013
I have given the case number and it is available in the site http://www.rishabhdara.com/sc/view.php?case=73964 , Sir you can cut and paste the above in the search . I have sited the case in my post 2 days ago. please see above , the whole case is given in the website.kindly clarify sir, Gupta jiplease.
sreevichin
(Querist) 04 February 2013
Thank for the time, and nice clarification Respected sir, Shri shri shri Raj Kumar Makkad ji
