A common problem in all of NCR
Many RWAs in Ghaziabad, Faridabad, Gurgaon and Noida are fighting developers for rights over common areas
The issue of ownership of common areas in housing societies continues to perplex apartment owners all over the NCR, be it Ghaziabad, Faridabad, Gurgaon or Noida.
Despite legal provisions for handing over common areas to the resident welfare association (RWA) in the apartment act of the states concerned, developers continue to insert clauses in sale-deeds for home buyers.
Take this case of Faridabad (see pic). Despite the Haryana Apartment Act and the Haryana Development and Regulation of Urban Areas Act, 1975, which states that RWAs will take over the common areas from developers, the developers own the space.
“The only difference between Noida and other areas is that while in Noida, the Authority is one of the parties to the sub-lease deed which has provisions which violate the public policy, in the other places development authorities are not signatories to such documents. They are just silent witnesses to a practice that is in all likelihood illegal,” says Dhanesh Relan, an advocate, who deals in consumer matters related to real estate.
Alok Kumar, vice-president, Ghaziabad RWA Federation, says that in Indirapuram even after handing over the maintenance to the RWA, developers continue to insert clauses in handover instruments claiming ownership over the common areas which allows them to add more floors to towers in residential societies in the future if floor area ratio (FAR) is increased.
“Once a developer hands over the group housing project to the RWA, he is out of the group housing project. He can’t claim ownership over anything. But buyers have no choice. They want ownership of their apartments for which they may have been waiting for several years. They are ready to sign on anything,” says Kumar.
He adds, “Even after handing over the group housing project, developers are making lakhs of rupees by renting out spaces of the society to the mobile towers and for other telecommunication services.”
The story is similar in Gurgaon too. “Common area by definition itself is an area ‘common to the residents.’ The builder has got nothing to do with this area. This is the law worldwide but not in Gurgaon,” says Amit Jain, director general, Federation of Apartment Owners Association.
He recounts an incident in which residents of a housing society had to literally force the builder out of their complex. “It was not a peaceful handover, The builder tried to enter the gates of the complex with the help 70 bouncers but people had to risk the lives of their children and wives to get what was rightfully theirs.
Says NK Sehgal former senior consultant (president) Ansal Properties, “In a group housing project, as per the legal position, if a developer takes occupancy of the whole project, he has to hand over the common area to the residents welfare association. The position is different as far as township is concerned. In a township, once the promoter takes the completion certificate from the director general, town and country planning, for the whole township, he has to hand it over to the municipal bodies. Once the handover formalities are complete, the promoter has no stake in the township.”
Many developers, however, don’t agree with Sehgal. They openly claim their rights over common area sand RWAs have no other means but to take the matter to the legal forums where decisions come after several years.
Copy of a sale deed executed by a developer in favour of a homebuyer stating that the former claims ownership over common areas