Kunal Oberoi (Manager) 17 February 2010

Query over right to terrace viz a viz newly approved floors

I am the owner of a ground floor and basement in south delhi in a plot measuring 200 square yards roughly,

in a regularized colony. The first floor ownership is with a different family and they have also had roof rights along with it.

Until about an year and a half back construction was only aloud uptil 1st floor and you could just make a maintenance room and a servant quarter on the terrace as i understand.

However there has been fresh development as everybody knows and now construction of 2nd and 3rd floor is aloud in delhi.

Does that mean that a person with roof rights automatically becomes the owner of 2 more floors that he can construct now on top; thus automatically inhereting a Rs.3 crore bounty (assuming value of 1 floor 1.5 cr) minus the construction cost.

I understand that the guy on the first floor has 'ROOF RIGHTS'. But what exactly does roof rights imply. Does it imply that any subsequent floors as and when cleared by the athorities to be built on top, will all belong to the person having roof rights??

Or is the implication of roof rights merely to the extent that the person can enjoy his terrace and use it as he likes with permissible one room construction but subseqyently if 'n' number of floors are passed by the authorities then some benefit has to pass on to the guy on the ground floor.

WAITING FOR EXPERT OPINION OR SOMEONE WHO HAS BEEN IN A SIMILAR SITUATION OR HAS BEEN WITNESS TO ONE.

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3 Replies

R.R. KRISHNAA (Legal Manager) 17 February 2010

Dear Kunal,

I think my reply here may upset you. But the legal position is that the person who has the right of the terrace will also have the right to construct any number of floors (subject to approval of statutory authorities) and he acquires all right and absolute ownership thereof. As you stay in ground floor you have no right to question the same unless you are provided with the right to claim share or any right over the terrace or newly constructed floors expressly mentioned in your sale deed of the ground floor.

Kunal Oberoi (Manager) 18 February 2010

Thank you for your prompt reply/clarification Mr. Krishnaa.

I would like to take the opputunity to appraise you of some other things i have heard regarding the same.

Kindly let me know what you think about this.

I have heard that in such a situation the person occupying the 1st floor has to take an 'NOC' from the one on the ground floor without which his his plans are not accepted by the authorities.

So that means that he cannot construct the 3rd and 4th floor on his terrace unless i sign the NOC.

In light of this people in similar situations as me have ended up in some kind of settlements with there

counterparts to allow them construction for the newly approved floors while there counterparts ahve agreed to pass on some benefit what so ever.

Also, talking logically one can always challenge the construction of new floors on an existing premises as the new floors put a burden on the existing infrastructure that includes physical foundation of the house that was intitially built to withsatnd a certain load; pipelines that were of a particular gauge to cater to a certain amount of load again.

YOUR COMMENTS PLEASE. THANK YOU.

R.R. KRISHNAA (Legal Manager) 18 February 2010

The person occupying the first floor need not mandatorily take permission from the ground floor owner unless there is any written condition/covenant that a permission should be taken from the ground floor owner to make further construction in the sale deed of the first floor's owner. If there is no covenant as such the first floor owner can construct as he like with the permission of the statutory authorities. Moreoever as the statutory authorities grant permission (NOC) after considering all the facts of the building and its viability, there is little left for you to challenge the same.

But from your point of view you can obtain a licensed engineer's report or any expert report that the bulding does not have stability and any construction of 3rd or 4th floor will do substantial damage to the ground floor etc etc and file a suit for injunction against the first floor owner adding the NOC authorities also as parties to the case and obtain interim injunction against the proposed construction. This can be done by you from the legal point of view and thereafter you can enter into any settlement with the first floor owner and get some benefits.

I hope you are clarified.