Can a builder sell off the parking space?
Question asked by Mangesh Nalawade from Pune:
Dear Vatsala Madam, I’m from Pune, Maharashtra. I will explain in brief about my case history. We were living in old Wada in Pune as tenant (Wada is like chawl in Mumbai). My father is tenant in the place from many years. In year 2005 the land owner decides to demolish the Wada and construct new building in which all existing tenants will get flats on the basis of ownership.
Our landlord has done the development agreement with a local builder/developer, but he did not sell the property to developer. The agreement between landlord & developer is only development agreement by which developer secure only rights to develop and sell the FSI developed by him.
We come into the agreement with developer in Jan 2005, when he shows us sanctioned project plan by Municipal Corporation, commencement certificate and development agreement done with landlord.
In the sanctioned plan there was no car parking space was shown when we entered in the agreement with developer. But there was only two wheeler parking was shown. In the agreement there is very confused clause mentioned. It is mentioned in this way “Developer will provide common parking for two wheelers but in agreement there is no information mentioned about car parking spaces available in project. Further in the agreement the clause mentioned “that developer have got sanctioned plan from municipal corporation, he submitted the plan for correction to municipal corporation and that the developer reserves the right to construct additional flat or floor if any TDR or FSI generated during construction and common facilities can not be change”
Now developer have constructed additional 2 flats which we can understand that he have the clause in agreement and have the rights to do so.
But real problem is :- When we enter the agreement the sanctioned plan he has shown had ample two wheeler parking space now he sold off half of two wheeler parking space as car parking spaces to the few flat purchaser. And now we have lack of enough space to park our two wheelers as the so called car parking owners have constructed cages around their car parking purchased from developer.
My question are :-
1) How builder can sell parking spaces to any flat purchaser? There is only development agreement has been done between landlord and developer, where as the builder/developer is not the owner of land how he can sold piece of land in the name of car parking spaces?
2) As there is only development agreement has been done between landlord and developer, the builder must sell only the FSI which he has developed and not the land?
3) Our flat sale agreement was done under the Maharashtra Ownership Flat Act 1963, Apartment Act 1970 etc. As per Maharashtra Ownership Flat Act 1963 section (7) it is compulsory for the builder/developer to disclose full and true information to the flat purchaser in their flat sale agreement when he accepts 20% money and register the sale agreement done with flat purchaser. In fact in our sale agreement the car parking spaces was not mentioned in the project amenities. Then, how can a developer create car parking spaces after we registered our sale agreement.
4) As per Maharashtra Ownership Flat Act 1963, section 22, 23 there are legal clauses which not allowed builder to sell open/covered parking spaces, then how builder in our case can sell the parking space?
5) Builder is not the authority who decides about the parking spaces in project, he have to provide parking spaces as per Municipal Corporation rules, there are D.C. Rules exist for every municipal corporation. In our case Pune Municipal Corporation have sanctioned 1 Car, 51 two wheelers & 51 cycle parking.
There are no changes so far introduced by Pune Municipal Corporation in D.C. Rules for building height & parking spaces in Pune city and even changes in D.C. Rules not published via local news paper, internet etc. So how builder can change this parking which Pune Municipal Corporation have sanctioned in our project plan on which basis we entered in agreement with developer.
6) Parking spaces are not comprise in FSI approved to developer and car parking space is not “a right in land, it is only space allotted for parking cars by the municipal corporation while approving building plans and cannot be converted into business.” Then by which laws developer can sell car parking spaces?
7) In general practice co-operative society owns the total land on which project have been constructed and if there are any car parking spaces approved by municipal corporation in project then society can give car parking spaces on rent as per bye-laws 78 -85 under co-operative housing society act. Then if the proposed housing society will own the total land how builder can sell part of land to any flat purchaser under name of car parking spaces.
8) If we considered that car parking sell is legal (it’s 50% of the total land in our case) then how much land will be transfer on name society when developer executes sell deed in favor of housing society by transferring land ownership on the name of housing society?
Can you please help us with answer of above question?
Thanks,
Mangesh
Vatsala Speak:
A detailed answer can be given by a practicing lawyer in Mumbai who is cognizant of the local enactments and who can study the documents. However it looks to me that this is a matter which is best settled in a court of law because of the fact that illegal car parking slots have been carved out and alienated by the developer.Vatsala
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