Residents demand clarity on common areas
Sale of shops in societies creates problems
More than 500 families, with an average income of R70,000 and living in a group housing society in Gurgaon, can’t afford to send their children to the nursery school which charges an exorbitant fee of R30,000 a month for each student. They complain that the developer who constructed the colony sold the nursery school site to a high-profile educational institution which can in no way accommodate the children of 95% of the families residing here.
Residents of another group housing society have to travel far to buy groceries because the convenience shops within the society are being used for godowns, beauty parlours, gyms, eateries etc.
In places like Ghaziabad, basements in societies have been sold to people who are running small restaurants which can pose a serious fire risk for the residents living on the upper floors.
Common area ownership has become a major bone of contention between residents and real estate developers in almost every group housing society across the country.
“In the first case if the nursery school was handed over to the residents’ welfare associations (RWAs), they would have leased it out to an educational institution which would have charged a reasonable fee that was within their budget. Sending out kids to distant schools can pose serious problems related to their safety, it could lead to traffic congestion, wastage of fuel etc. Similar problems arise when dozens of buses enter the colony gates carrying childrens from far-flung areas,” says Anil Sharma, an RWA official of a group housing society in Gurgaon. Sharma’s society is fighting a similar case against the developer in Punjab and Haryana High Court.
About the second case involving grocery stores, Sharma adds, “The residents could have benefited from the RWA leasing out shops to people selling groceries and not using the space for godowns and parlours.”
Instances of developers not consulting RWAs before selling the shops to third parties are common. “The developers think that once they move out these parties will continue to fight among each other. They are least bothered about the residents’ welfare,” he says.
Residents’ organisations point out to two problems that RWAs face. “One is that despite the law clearly stating that builders hand over the common areas such as stairs, lifts, lobbies, parking etc to the RWAs, they are not doing so because they collect money from the residents from that and earn profits on it. It’s a clear cut violation and there is no ambiguity in the law but, sadly, development authorities fail to act against them,” says Ashish Kaul, a resident of Gurgaon.
The other problem could be similar to the one in Silver Oaks (see page 1 story) society where developers declare stairs, lifts, lobbies, parking etc as common areas and facilities but claim ownership of nursery schools, shops and community centre. There is an urgent need to address these issues because millions of families are affected all over the country because of such cases, Kaul adds
Many residents demand the respective state governments to remove ambiguity in the apartment ownership acts and make it clear that whatever is being constructed in a township or a group housing society must be categorised as apartment, common areas and facilities and restricted common areas and facilities.
Even the Punjab and Haryana High Court, while delivering a well-reasoned verdict in favour of the Silver Oaks residents, held that “In view of shortage of land in urban areas, concept of apartments has been evolved. Town Planning laws require development of apartments in accordance with a plan and the apartment laws apart from making apartment heritable and transferable, provide safeguards for the apartment owners for their shared use of common area. If shared use is not allowed, the concept of apartment may not be work- able as persons living on different floors require certain services in the complex itself.”
“Those who buy apartments in a society are also attracted by the services available in a complex and are directly or indirectly made to pay for such services. It is not the intention of the legislature that the developer assumes absolute power of declaring or not declaring areas, normally in common use, to be common areas,” said the Punjab and Haryana High Court had said in its judgment on the Silver Oaks case, upholding the rights of the RWA over common ares.