‘Com­mon ar­eas rest with flat owners’

Ac­cord­ing to a re­cent order by the Al­la­habad High Court on the UP Rent Act, com­mon ar­eas and fa­cil­i­ties must be en­joyed by apart­ment owners with­out en­croach­ing upon the rights of the oth­ers

HT Estates - - HTESTATES - Su­nil Tyagi

Var­i­ous states have en­acted laws that pro­vide for the own­er­ship of an apart­ment in a build­ing where there is an un­di­vided in­ter­est in the com­mon ar­eas. Th­ese laws are also meant to make such apart­ments trans­fer­able.

Re­cently, the Al­la­habad High Court, while hear­ing var­i­ous writ pe­ti­tions filed by apart­ment owners and buy­ers’ as­so­ci­a­tions, is­sued a clar­i­fi­ca­tion re­gard­ing the in­ter­pre­ta­tion of var­i­ous pro­vi­sions of the UP Apart­ment ( Pro­mo­tion of Con­struc­tion, Own­er­ship & Maintenance) Act, 2010, and UP Apart­ment ( Pro­mo­tion of Con­struc­tion, Own­er­ship and Maintenance) Rules, 2011. The high­lights of the judg­ment de­liv­ered by the high court are: The Act is ap­pli­ca­ble to all build­ings, hav­ing three or more apart­ments for res­i­den­tial or com­mer­cial pur­poses. The word ‘apart­ment’ in­cludes any garage or room, if it has RWA reg­is­tered af­ter giv­ing due no­tice to the pro­moter. An apart­ment owner is en­ti­tled to un­di­vided in­ter­est in the com­mon ar­eas and fa­cil­i­ties as spec­i­fied in the deed of apart­ment. This will not be al­tered with­out the writ­ten con­sent of all the apart­ment owners and ap­proval of the com­pe­tent au­thor­ity. Th­ese fa­cil­i­ties will be en­joyed by the apart­ment owner with­out en­croach­ing upon the rights of other apart­ment owners. The ‘limited com­mon ar­eas and fa­cil­i­ties,’ which are spec­i­fied in writ­ing by the pro­moter as ‘ in­de­pen­dent ar­eas,’ must be clearly de­fined in the dec­la­ra­tion un­der Sec­tion 12, fail­ing which the pro­moter will not be en­ti­tled to claim th­ese com­mon ar­eas as in­de­pen­dent ar­eas. Th­ese in­de­pen­dent ar­eas are the ones that have been de­clared as com­mon ar­eas but not in­cluded for joint use of apart­ments. Th­ese can also be sold by other apart­ment owners. Fail­ure to sub­mit the declara-

A flat owner is en­ti­tled to un­di­vided in­ter­est in the com­mon ar­eas such as gar­den, el­e­va­tor and park­ing

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