Possession

David Baker (Querist) 16 May 2014 This query is : Resolved
A developer hands over 90% of units to buyers. He asks them to sign an agreement between him that he has handed over possession. The subject line of the said agreement says possession to carry out interiors. He specifically prohibits anyone from occupying the said unit till OC is obtained. Now he is demanding maintenance from his customers. As a matter of fact possession of the unit under MOFA can only be given after OC .

Now many buyers were not aware of this stipulation in the agreement and have been residing in their units since 3 years. Should we pay maintenance in the absence of actual possession and OC?

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Devajyoti Barman (Expert) 17 May 2014
Please refer to the original sale agreement.
Both the developer and the buyers are bound by its terms.
If the same is silent on this topic that it is open to adjudication by appropriate court of law in the even both the parties disagree with each on this issue.
Once buyers occupy the respective flats then maintenance charge is to be paid.

Guest (Expert) 17 May 2014
Well advised.

T. Kalaiselvan, Advocate (Expert) 18 May 2014
On occupation, the flats require maintenance is simple logic, thus the occupants are bound to pay the maintenance charges.

Surrender K Singal (Expert) 18 May 2014
Maintenance before getting OC may not be lawful as the occupation itself is against the local bye-laws

David Baker (Querist) 18 May 2014
Possession has been given by the developer to carry out interiors. The possession letter clearly prohibits me from residing here until OC is received. How can one call this possession. Surrounding areas have water connection, whereas we don't, as we have not received the OC. MUNICIPAL AUTHORITIES visited the site and asked the builder to pay compounding fees as they found quite a number of units occupied. Builder not willing to pay compounding fees. Considers a legal remedy more appropriate than paying up. Thus denying the buyers access to their units for which 100% payment has been made while taking over possession to carry out interiors. In other words the buyers were fooled into believing that they had received possessions, but as a matter of fact they did not

Devajyoti Barman (Expert) 18 May 2014
I think it is a fit case for compensation to be filed in the consumer forum.

David Baker (Querist) 18 May 2014
I'm not sure if MOFA PROVIDES for compensation when possession has not been given. It provides though that the builder refund the money with 9% interest. How on earth would a buyer who paid 4 years back the entire consideration with this kind of a provision in place. I guess this provision needs to be amended so as to ensure that the buyer gets the present market value of the flat along with interest.

Surrender K Singal (Expert) 25 May 2014
case for compensation be filed in the consumer forum

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