Car parking

Shyamal (Querist) 14 May 2021 This query is : Resolved
Is right to car parking stilt or open a legal entitkement? Can builder sell a flat without any parking space? Can builder sell multiple parking spaces to a flat purchaser? If as per supreme court judgement builder can not sell open or stilt parking space, how a parking dpace is allotted by builder to a buyer and also mentioned in the agreement? If there is enough parking space for sll and still additional space is available, can builder allot that to one or more purchaser as per his desire?

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The legality of builders selling car parking spaces is a complex issue. Generally, open or stilt parking is considered a common area and cannot be sold by the builder, with Supreme Court rulings confirming this. While builders may not legally sell parking, buyers derive their entitlement from the purchase of the flat itself, often included in the super built-up area or common facilities. Once a housing society is registered, it becomes the owner of parking spots, and allocation is typically managed by the society's managing committee, sometimes on a first-come, first-served basis with regular reshuffles.

Dr J C Vashista (Expert) 15 May 2021
You are already aware about the legal position qua selling of parking, what else?.

Advocate Bhartesh goyal (Expert) 15 May 2021
Legally builder cannot sell parking space nor can he promise to buyer or mentioned in agreement.

Shyamal (Querist) 15 May 2021
My question was basically what a flat buyer can expect when he buys a flat insofar as parking space is concerned. He derives his entitlement to a parking space from where? Outside Maharashtra where there is no law akin to MOFA, does a buyer have a legal entitlement to a parking space, unless allotted by builder either by allotment letter or through an agreement? If Builder can not allot and society registration happens much later after taking possession, where does the buyer park his car? Will not there be fight among buyers over parking space?

J K Agrawal (Expert) 15 May 2021
look at your purchase agreement of flat. if any common facility area is charged and sold to you or not. Generally it inclusive the use of common facility. Super builtup area if described it also includes right to park vehicle, You have a good case with you and can avail right to park your vehicle. It makes no difference that it is mentioned in your agreement or not about right to park vehicle.

T. Kalaiselvan, Advocate (Expert) 16 May 2021
According to the “Apartment Act” in most states, car parking is a part of the society’s common areas. Since the purchase of parking slots has been deemed illegal, the transaction to purchase would become null and void. Once the housing society is registered, it becomes the owner of all the common spaces of the apartment complex including the parking spots.
The Ministry of Housing and Urban Affairs’ model by-laws allow 2 ECS (Equivalent Car Space) per 100 sq meter of floor area in residential premises. This can be translated to 1 space per 3BHK and 2 per 4BHK. According to Apartment acts, you are neither allowed to cover or repurpose parking spaces nor shall a member have any right to sell or transfer parking slots allotted by the society. A fine may be charged by the society for any violation of parking laws.
So, if there are a limited number of parking spots, then the managing committee decides the basis of the distribution in consultation with the members. Some take the first come, first serve route and often perform quarterly reshuffles of parking spots to ensure no resident enjoys exclusivity
A builder has to provide a certain number of parking spaces based on the number of units of houses. According to the National Building Code, one car parking space must not be less than 13.75 sq. meter. For a 2-wheeler, it must not be less than 1.25 sq. meter. As per a mandate from the Mumbai High Court, the builder is not allowed to sell parking spaces outside the FSI consumed. This has been confirmed by the Supreme Court of India too.

However, The RERA or Real Estate (Regulation and development) Act, 2016 only spoke of covered parking space but the rules did not include open parking. Hence, a developer was fully entitled to sell covered parking but open parking couldn’t be sold.

In 2017, the Ministry of Housing and Urban Poverty Alleviation specified that in Section 2 (n) of the RERA Act, common areas include open parking spaces and thus, open parking spaces cannot be sold to allottees.

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