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Top roof rights

(Querist) 03 May 2021 This query is : Resolved 
Dear Sir

In our registry we had purchase a flat without roof right but we can go for repair & maintenance related work in top floor but now the terrace owner locked it . what we can do now kindly suggent.


Mahendra Singh

Sankaranarayanan (Expert) 03 May 2021
What without roof rights? If you purchased flat with undivided land share then automatically you have roof rights. Show your documents to local advocate and get clarity
MAHENDRA SINGH (Querist) 03 May 2021
thank you for your reply but what is meant by undivided land ? it is made by builder on basis of collaboration .
Sankaranarayanan (Expert) 03 May 2021
Undivided share is a part of land held by the buyer of the apartment in a residential complex on a plot on which the entire structure is constructed. Each and every flat built on that particular plot will have a share in the land but will not have any defined boundaries
Advocate Bhartesh goyal (Expert) 03 May 2021
Issue legal notice to terrace owner/occupier and ask him to unlock the doors of terrace so that repairing and maintainance could be done in your flat.
ashok kumar singh (Expert) 03 May 2021
agreed with earliers views of experts, therefore no further comments so far.
MAHENDRA SINGH (Querist) 03 May 2021
thank you to all experts
kavksatyanarayana (Expert) 03 May 2021
Whether the flat is the individual portion of it belongs to an apartment/society. If the society is looking at the matters then ask the committee regarding the locked terrace. Otherwise, issue a legal notice to the terrace owner.
Dr J C Vashista (Expert) 04 May 2021
You can very much do repair work even if you did not purchase roof rights.
Who has locked / denied access to roof for repair, discuss and sort out matter amicably, otherwise, obtain mandatory and permanent injunction from civil court.
T. Kalaiselvan, Advocate (Expert) 04 May 2021
Terrace come within the 'common space/area' in a society and all the allotees/flat owners will have a conjoint interest upon the same.
\It has been seen that many buildings have terraces on certain floors, below the main terrace on the top floor. Developers often hoodwink the residents and sell these terraces to the adjacent flat owners thereby making huge profits. However, this too is against the law. A terrace that is not accessible from the common areas and is attached exclusively to a flat can only be sold to a flat owner but all other terraces are for the common usage.

It is for the same reason a terrace is not included in the Floor Space Index (FSI) of an apartment. Reason: it cannot be bought or sold.

The terrace forms part of common areas, hence the builder cannot sell this as a separate unit.

In the case of Rajesh, according to the UP Apartment Act 2010, a developer does not have any right to sell or lease terrace of the housing society to any particular owner or owners of the properties in the society or anyone else.

A terrace or rooftop is a common area of in a residential society which is for the enjoyment and benefit of all its members. Although it has been seen that many developers resort to selling or giving exclusive terrace rights on payment, the practice is illegal.

It is untenable in the eyes of law where one resident gets the right to use the rooftop to the disadvantage of others. If residents choose to wage a legal battle, this may land the developer and the erring resident in soup.
krishna mohan (Expert) 07 May 2021
I would like to add that when you buy a flat your right inlcudes maintenance rights. Rarely maintenance done on the roof except the top most floor being a common roof top for all flat owners. You can take up the issue with the builder or promoter to help you to do the maintenance or through your society as other right also involved when you do the maintenance work on the roof top.
Sudhir Kumar, Advocate (Expert) 10 January 2023
You not being owner of the roof does not stop you from accessing the roof. The person has purchased roof rights with encumbrance of the water tank etc of all flats being there (though you did not clearly say if water tank is on rood whereas generally they are).

If that is the condition then approaching you from roof appears criminal action of "unlawful restrain" (atleast appearing from the facts shared by you so far on this thread). In such case you can call police.

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