Can the builder prevent the owner from making alterations to the apartment terrace?
Querist :
Anonymous
(Querist) 08 June 2011
This query is : Resolved
My family bought a first-floor apartment in Karnataka. They paid money for this entire apartment, which includes 2 terraces and 1 balcony. (Please note that only the first floor apartments have the 2 terraces). However, they are not able to step out into the terraces because they face a daily threat of objects (which include heavy iron and glass objects) falling from the upper floors. There was an instance where a child who slipped into the terrace to play was seriously wounded on the head by one such object. Other apartment owners in the first floor have the same problem, and all of them would like to build some kind of protection over the terrace so that they can use that space.
However, the apartment builders are objecting to this, because the Deal Of Declaration says that the outer appearance of the building cannot be changed by the owners.
The Deal of Declaration from the builder includes the following clause:
"The apartment owner cannot change the external appearance of the apartment unit in any form whatsoever, either temporarily or permanently, including enclosing the balconies or fixing anything like grills, meshes, glass etc under any circumstances by any apartment owner. Even the Executive Management Committee (EMC) of the Apartment Owners Association shall not have the authority to permit any such acts. In case of breach of the above conditions to any extent whatsoever, the EMC of the Association shall have the authority/power to cause it to be removed without notice and to recover the cost incurred for the same and a sum of10,000/= as damages and also for injunctive relief from court of law at the cost of the apartment owner."
The Sale Deed shows that my family has paid for the 2 terraces and balcony, so they are the rightful owners of this space. How is it possible that the builder can have this agreement in the Deal of Declaration, preventing the owners from changing their own space? Doesn't this agreement violate the right to property?
Can the Deal of Declaration by the builder prohibit the families from building a protection over their heads on the terraces, in their own apartment space, especially given the life-threatening situation?
Is there a court ruling related to this issue that we can use to overturn the agreement that we signed?
Please help me with this problem.
Thanks!
sanjeev murthy desai
(Expert) 09 June 2011
In the sale Deed if terrace rights were specifically n absolutely conveyed to you, then go ahead subject to obtain a permission from the association. But structural alteration should be punishable from the management of the association. I need to verify the all the documents including by-laws and memorandum of associations. Then only i may give you perfect answer.
If you need further details please contact me at sanjeev926@gmail.com
prabhakar singh
(Expert) 11 June 2011
Depends on terms and covenant pre agreed.
Querist :
Anonymous
(Querist) 12 June 2011
Thank you so much for your help!
The terrace is included in the sale deed.
We would like to have your opinion on the following two points:
1) Is the clause in the deal of declaration legal? That is, can a private company (the builder) make a property owner sign a clause that prevents the owner from making changes to his own property?
If this clause is not legal, could you let me know about some cases where such signed documents were overturned?
2) Are there other cases in Karnataka where similar issues related to alterations in apartment buildings have been addressed?
Thanks!
Advocate. Arunagiri
(Expert) 12 June 2011
The UDS of land should be directly proportionate to the built up area bought. If the terrace is part of the unbuilt area, you can buy it and do the construction.
Otherwise you cannot construct in the terrace.
