Car parking areas cant be sold separately by promoters: SC

In a several  orders, courts have ruled that a parking space that comes with a flat cannot be sold by the builder to a party that has not purchased the flat. Both the HC and the SC have successively ruled against the promoter. It is a civil dispute, on a very limited point.  

That is targeted against the promoter’s act complained of, in its retaining car parking area(s) in the form of ‘stilt car parking’ in the building complex, with the intent of selling them ‘separately’, and for a price. The court has held to the effect that the promoter has no right to so retain any area in the building complex, for sale. The reasoning is that all such areas are very much part and parcel of the “common areas and facilities”.

“Open-to-sky” areas or “stilted” (covered) portions of their flat complexes, usable as parking spaces, cannot be sold separately by flat builders/promoters/developers as “garage”, the Supreme Court has ruled.

A judgment delivered by a bench of Justices R M Lodha and A K Patnaik in 2010 comes in the backdrop of interpreting the legislative intent behind enacting the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1969.

The court made the observations while dismissing an appeal filed by Mumbai promoter Nahalchand Laloochand Private Limited, seeking permanent injunction against a co-operative housing society to whom they had sold a few properties in Anand Nagar, Dahisar (East) in the city. They accused society members of “encroaching” into 25 stilt parking spaces in the building.

The court said promoters will not be put to any financial prejudice by treating parking spaces as common areas since “he (promoter) is entitled to charge price for the common areas and facilities from each flat purchaser in proportion to the carpet area of the flat”.

“Can a promoter take a common passage/lobbies or say staircase or the RG area out of purview of ‘common areas and facilities’ by not prescribing or defining the same in the ‘common areas’?” asked the court and illustrated how the Maharashtra law mandates the promoter to describe the “common areas and facilities” in the advertisement as well as in the agreement later with the buyer.

“The promoter is required to indicate the price of the flat, including the proportionate price of the common areas and facilities. If the promoter does not disclose the common areas and facilities, he does so at his own peril,” the bench observed.

The court clarified that “stilt” or covered parking spaces were “common areas”, and would not cease to be so even if the promoter fails to describe them as common spaces.

What if it is already charged and paid?

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