Can a builder execute a sald deed for a terrace
Amit
(Querist) 11 May 2014
This query is : Resolved
I have a office in a commercial Building in Mumbai which is more than 30 years old.
It is a three storey building.
On the third floor there is a terrace which the builder has not yet handed over to the society and has his Lock on the same.
He has executed a sale Deed for the terrace in his individual name and claims that he has sold the terrace to himself as an individual.
Not sure if the building has conveyance.
There was no registration required then so it is a non registered agreement.
I wish to know what are the builders (as an individual)rights for the same and weather the society can sell the same to an existing member.
ajay sethi
(Expert) 11 May 2014
terrace forms part of common area . builder has no rights on said terrace .
Rajendra K Goyal
(Expert) 11 May 2014
It is common area, builder has no right on it. Agreement can be challenged.
dr g balakrishnan
(Expert) 11 May 2014
terrace position in agreement executed with other buyers is vitally to be seen if it is common area then no right exists with builder, as terrace is indeed a common area!
in such circumstances, court would or might give adverse verdict on builder, most probably if he could not come our some other pleas!
Advocate. Arunagiri
(Expert) 11 May 2014
You have not stated what is the UDS for the open terrace?
If 100% of the UDS area is already allotted to other flats, this terrace is a common area for the flat owners, the terrace can not be separated and can not be sold.
Amit
(Querist) 11 May 2014
What is UDS...Adv Arungiri
What about the societies right to sell the terrace to a member?
Can i purchase the terrace from the society and challenge the builders rights over the same?
Sankaranarayanan
(Expert) 12 May 2014
I do agree with experts if it is come under UDF then it is trated as common then it can not be sold
Kishor Mehta
(Expert) 12 May 2014
Sir/s,
With due respect to the experts, I beg to cite here under two valid paragraphs that are relevant:
"[1]Co-operative Appellate Court, Mumbai. (A.O No. 86 of 2001. March 4, 2002)
“ 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,
"[2] “MODEL BYE – LAWS OF COOPERATIVE HOUSING SOCIETY AS PER 97TH CONSTITUTIONAL AMENDMENT and MAHARASHTRA CO-OP. SOCIETIES (AMENDMENT) ORDINANCE 2013
170. The society shall not let out or give on leave and license basis or permit any subletting, giving on leave and license basis any open space available under the Staircases, Terraces, Open ground, Lawns, Club house, Common Hall etc. or to any person whether the member of the society or not, for any purpose whatsoever.
(a) All open /common spaces meant for use of all members e.g, staircase, steps, landing areas, parking areas, lift, corridor, and such other spaces, cannot be occupied by any member for his own use. The use of such areas shall be restricted to the cause for which these are meant. Any member found to be violating the above condition by encroachment shall have to vacate the encroachment and further he/she shall pay an amount equal to five times the monthly maintenance charges per month for the period for which he/she has encroached such spaces and further members must not carry out any constructions, structural changes over and above the sanctioned plan without prior permission of the society and concerned municipal authorities. Any member violating the above directives shall pay an amount equal to five times the monthly maintenance charges, per month with retrospective effect for the period for which such violation is existed.”
Good Luck,
Kishor Mehta
T. Kalaiselvan, Advocate
(Expert) 13 May 2014
I think expert Mr. Kishore Mehta has explained the underlying law on the subject very clearly and hope this would enable the author to initiate appropriate legal proceedings against the builder.
Surrender K Singal
(Expert) 14 May 2014
Each member's allocation agreement / letter might have specified such right (if any) reserved in favour of either and may be the basis for alleging any violation (if any) otherwise KM has elaborated about common areas (whether it includes terrace)
