Park­ing space, com­mon ar­eas to find sep­a­rate men­tion in agree­ments

Builders will now have to spec­ify com­mon as well as car­pet ar­eas in prop­erty sale doc­u­ments

Hindustan Times (Chandigarh) - Estates - - FRONT PAGE - Van­dana Ram­nani van­dana.ram­nani@hin­dus­tan­

Some newly for­mat­ted agree­ments to sale be­ing read­ied by de­vel­op­ers clearly state that the al­lot­tee shall have un­di­vided pro­por­tion­ate share in the com­mon ar­eas and that the garage/ closed park­ing shall be treated as a sin­gle in­di­vis­i­ble unit for all pur­poses.

Many of these agree­ments fol­low the agree­ment to sale tem­plate no­ti­fied by min­istry of hous­ing and ur­ban poverty al­le­vi­a­tion for union ter­ri­to­ries. No state has so far no­ti­fied the agree­ment to sale rules.

“The right of the al­lot­tee to use the com­mon ar­eas shall al­ways be sub­ject to the timely pay­ment of main­te­nance charges and other charges as ap­pli­ca­ble. It is clar­i­fied that the pro­moter shall con­vey un­di­vided pro­por­tion­ate ti­tle in the com­mon ar­eas to the as­so­ci­a­tion of al­lot­tees as pro- vided in the Act,” says an agree­ment to sale.

It also clar­i­fies that the com­pu­ta­tion of the price of the apart­ment or plot in­cludes re­cov­ery of the price of land, con­struc­tion of (not only the apart­ment but also) the com­mon ar­eas, in­ter­nal de­vel­op­ment charges, ex­ter­nal de­vel­op­ment charges, taxes, cost of pro­vid­ing elec­tric wiring, fire de­tec­tion and fire­fight­ing equip­ment in the com­mon ar­eas etc and in­cludes cost for pro­vid­ing all other fa­cil­i­ties as pro­vided within the project, it says.

It also clar­i­fies that garage/ closed park­ing shall be treated as a sin­gle in­di­vis­i­ble unit for all pur­poses.

This, say le­gal ex­perts, is a pos­i­tive move. Ear­lier the de­vel­op­ers would sell an apart­ment based on the su­per area due to which com­mon ar­eas and park­ing ar­eas were never spec­i­fied sep­a­rately in the sale deed. “The statute now de­mands that the builder sell the unit ba­sis the car­pet ar­eas and there­fore the need to spec­ify the com­mon ar­eas and the park­ing ar­eas sep­a­rately,” says SK Pal, a Supreme Court lawyer.

The new agree­ments also spell out the rights a cus­tomer has as per the agree­ment and after pos­ses­sion of the apart­ment. Now a cus­tomer is en­ti­tled to spe­cific per­for­mance by the builder as a buyer.

“If the pro­moter fails to de­liver or do some­thing, then the pur­chaser can go in for spe- cific per­for­mance. What this means is that in­stead of claim­ing dam­ages or com­pen­sa­tion, the buyer has the right to make sure that the de­vel­oper per­forms the obli­ga­tions laid down in the con­tract,” says Ak­shat Pande, part­ner, Seth Dua & As­so­ciates.

As for the force ma­jeure clause, these agree­ments spec­ify that the de­vel­oper has to hand over pos­ses­sion un­less there is de­lay or fail­ure due to war, flood, drought, fire, cyclone, earth­quake or any other calamity caused by na­ture af­fect­ing the reg­u­lar de­vel­op­ment of the real es­tate project.

“A pro­moter can­not ter­mi­nate an agree­ment on ac­count of in­crease in ce­ment prices or lack of ad­e­quate labour. Force ma­jeure clause is ap­pli­ca­ble to con­di­tions that are beyond hu­man con­trol, some­thing that im­pacts a de­vel­oper’s ca­pac­ity to per­form the con­tract,” ex­plains Pande.


Park­ing space will now be treated as sin­gle in­di­vis­i­ble unit.

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