Kumar 20 June 2016

delay in clubhouse delivery

Dear All,

Appreciate your valuable input / advise on the below matter.

This is regarding villa property with 200 villas. Phase 1 has 120 villas (100 delivered and 20 sold but work in progress) and phase 2 has 80 villas (mostly unsold and is likely to take 3 years for completion). 80 families have moved in gradually over the last 2 years but the builder hasn't provided OC. Builder has so far been maintaining the property (without charging us) primarily due to the fact that the clubhouse and other amenities were not delivered. The sale deed states that builder will maintain the property for 5 years. Deed also states that association will be formed when more than 50% purchasers form it. The builder now wants to start charging maintenance from April'16 (2 months retro) although they haven't yet completed clubhouse. for doing so, they would want us to deposit corpus fund

I have the following question:

Is it legal to move in without OC? When can we ask the builder to get OC? If builder finishes phase 1, can he get OC for phase 1 villas?
When is the best time to form association?
Can the maintenance be refused until the promised clubhouse is completed? If not, what legal options/rights, we have to get builder to expedite completion of promised amenities? Or do we need to wait endlessly till the builder is kind enough to provide these (remember, clubhouse is already 2 years behind schedule). Please also note that the deed states that not completion of the club shall not be deemed default on the builder (is this justifiable to have this clause especially when we have paid for clubhouse charges)
Can we delay submitting the corpus fund cheques and instead ask builder to charge us for the consumables like diesel (for back-up power), water etc. does this option safeguard our corpus fund?
Is the builder well within his right to start charging maintenance from the date each residents took possession. For example, a few residents moved in 2 years ago. Can the builder ask the residents to pay for these two years? The sale deed states that the buyer will start paying maintenance once the possession is given/deemed to be given. In this situation, when should the maintenance actually start? From the date of possession? Or from the date the OC is given? Or from the date the clubhouse is completed?
Both the sale deed and agreement are heavily favoring builder. For example,
1. it states the association will have no rights over running of clubhouse/facilities
2. in case where the bye laws are inconsistent with the terms and condition of sale deed & agreement, the terms and condition in the sale deed would prevail over bye laws
3. builder has the right to run the clubhouse for 5 years and the association will have no role/will not interfere in running/maintenance of this clubhouse

Are these points valid in the rule of law? Since the buyer don’t have a choice of changing the content of the sale deed, is there a recourse left for the buyer?

Thanks once again for your advise.

Kumar