Parking allotment by builder before society formation
Sachin
(Querist) 01 March 2014
This query is : Resolved
Dear Sir,
This is regarding parking space allotment QnA on this site
We have purchased a flat in Kurla East in a under construction building in 2009, agreement date in Jan-2010. The construction is complete now and possession in
progress, the builder personnel approached us for parking allotment through phone call (no official written communication/email). Builder asking for money for parking
without giving any receipt, he will just provide a allotment letter showing that it is a free allotment on first cum first serve basis. Nothing is mentioned in our
agreement about parking.The society is formed yet and may take a couple of years as the construction of other wings is in progress. Also builder is taking a parking
no-claim undertaking from those who have not allotted the parking while providing the possession letter. Some of flat owners already paid him forking and got parking
allotment letter while majority others refused to pay for parking as per SC judgement. I think the builder is legalizing his illegal parking allotment by no payment
receipts, first cum first serve basis and parking no-claim undertaking.
Now I have below queries
1. The allotment is done after 31-Aug-2010 (SC judgement) however before formation of society so the allotment made by builder is legal? As per your answer the allotment can be legal
so have doubt about it.
2. Once society formed can society cancel the builder's parking allotment by laws? Society can decide the llotment rules at that time as per by laws.
Request you to please help to answer these queries. Let me know if you need anymore details to answer it.
Thank you in advance.
Best Regards,
Sachin Timane
Kishor Mehta
(Expert) 02 March 2014
Sir,
[1]The Builder can neither sell nor allot open or stilt parking spaces.
[2]"No Parking claim undertakings" are patently illegal and not binding on the purchasers.
[3] The Society can cancel all allotments of the builder.
Good Luck,
Kishor Mehta
Thyagarajan
(Expert) 02 March 2014
1.Some Builders are putting the cost of construction of one car park in costruction cost of the flat. They are not selling flats without car parking cost.Additionally they pprovide few slots for visiters parking
2.Some builders are selling flats without cost of car parking and on demand they sell the parking lot.
In chennai owners in category 2 are approaching courts not those on category 1
T. Kalaiselvan, Advocate
(Expert) 02 March 2014
The author's query can be solved once the society is formed or if a legal notice and subsequent suit before an appropriate court is filed against the builder.
Kishor Mehta
(Expert) 02 March 2014
Sir,
With due respect to the Experts. I would like to state that it is very well documented Judgment of the Hon'ble Bombay High Court and the Hon'ble Supreme Court of India that builders can not sell stilt or open parking spaces.
The legal observations are as under:
“ It is pertinent to note that parking spaces are mentioned in clause 22 of the Maharashtra Ownership Flats Act along with words open space, lobbies and staircase giving clear indication that these spaces
are also common amenities.
This also indicates that car park spaces do not have independent status. Clause numbers 22 and 23 could not have given the promoter/ developer right to deal with the open spaces, car park spaces lobbies and staircase. Such property would remain the property of the promoter/ developer, but he would keep the property as trustee and convey the same at the earliest to an association formed by the purchaser of flats.
This is legal obligation of the promoter/developer under section 11 of the Maharashtra Ownership Flats Act."
Good Luck
Kishor Mehta
M V Gupta
(Expert) 04 March 2014
In spite of the clear pronouncement by the SC and the BHC, builders are bullying the flat purchasers to pay for the parking space. Flat buyers should refuse to pay. The Society when formed can legally refuse to accept the allotments made by the builder and ask the buyers of the parking space to vacate. This is being done by several Societies in Mumbai already.
Sudhir Kumar, Advocate
(Expert) 26 March 2014
you may better meet lawyer with papers. Whole course of action depends on perusal of papers.
Thyagarajan
(Expert) 26 March 2014
In Chennai some builders fix the price of per sq.ft cost flat that includes per sq.ft of one parking slot. The construction agreement or sale deed for UDS do not speak of parking slot. But as per CMDA rules they make provision for car parking space enough to all flats and 10%for visitors. Once the builder hands over the site to association the association divide parking space and allot to owners No extra charge is collected by the association. What Expert MV Gupta says happens in Chennai too.
M V Gupta
(Expert) 27 March 2014
Dear Shri Thyagarajanji, I am given to understand that in Tamilnadu generally Condominium of Apartments are formed and not Coop Hsg Societies as in Mumbai. Would u pl enlighten us the general system that prevails in T nadu and the laws governing the flats there.
Thyagarajan
(Expert) 28 March 2014
Dear Expert Mr. MV Gupta,
Builder gives his proposed plans to CMDA ,CMDA checks whether the plans are in confirmatory to Development Controls created under Tamilndu Town and country Act. Is so CMDA gives clearance. Plan given by builder shows common areas that include car parking's. The Association of owners takes the site on completion and it is mandatory that the Association registers it under registrar of society Act. You are right to say the Association is not told as Housing society as in Bombay.I hope the Housing societies in Bombay are also registered under societies Act in Bombay.
High court of Madras had said some judgments passed by Bombay high court with Venus Cooperative Housing society as a party, has perusal valve when the associations of owners in madras take up cases of the of similar nature before high court.
