Will RERA legalise parking space sale?
Though sale of parking area is not permitted by law, new provisions in the real estate regulation bill might just legitimise it
Homebuyers and activists are crying foul over the parking-related amendment in the proposed Real Estate Regulation Bill (RERB), according to which only open parking areas will be part of common areas and facilities in a group housing project
Common areas are common facilities such as green and other areas for elevators etc used by owners of apartments in housing societies. Many builders and residents of housing societies are usually locked in battles claiming rights over such areas.
According to various apartment and urban area acts and court judgments, builders cannot sell common areas and facilities separately and have to hand these over to the association of apartment owners free of cost once the project gets a completion certificate.
Unfortunately, the RERB, instead of helping homebuyers enforce their rights on the common areas and facilities, will make things difficult for them once enacted in its present form. That’s because Section 2 (N) (iii) of the Bill, while defining the common areas, among various other things also include “the common basements, terraces, parks, play areas, open parking areas and common storage spaces.” There will be negative consequences of this type of definition of common areas and facilities, especially when it comes to parking areas. Developers will create open parking in the space meant for green areas and parks, says a senior consultant from the ministry of housing and poverty alleviation, on conditions of anonymity.
He also suggests that by associating the word ‘ open’ with parking areas, the Bill excludes stilt parking as part of common areas and facilities and thus denies apartment owners claim over the same. Many homebuyers and activists have asked for changes in the definition of common areas and facilities in the Bill, especially when it comes to parking space and said if the Bill is passed by Parliament in its present form it will legitimise the sale of parking in the stilt area – a space that should belong by right, free of cost, to the association of apartment owners.
According to Amit Jain, an activist and a key contributor to the drafting of RERB, “Now a builder will not only claim exclusive rights over stilt parking, but in future in case FAR (floor area ratio) is increased in that area, he can get the stilt area converted to flats and sell them. When FAR is increased in any area, the developer gets the rights to construct more apartments on a plot on which he has already constructed a building. So he wants to control such common areas and make money out of it whenever possible.”
Jain claims to have been shocked to see the “persistence of the builders’ lobby in thwarting all our efforts to bring some rationality and sanctity to the otherwise errant real estate sec- tor. We are writing to the prime minister for his personal intervention to ensure that RERB protects homebuyers and does not legitimise all the illegalities and issues that we have fought against in the past.”
Associating common areas and f acilities with parking ( in the bill) also contradicts the Supreme Court judgment in Nahalchand Laloochand Private Limited vs Panchali Co-Operative Housing Society Limited case. The apex court, on August 31, 2010, had said that stilt parking was nothing but a part of the common areas and facilities. The only right the promoter had was to charge apartment owners a cost for it in proportion to the carpet area of apartments.
A recent judgment of the Delhi High Court in the Anup Mittal vs Kanungo Co-operative Group Housing Society Ltd, while holding that open parking congested common areas and facilities, said, “Air pollution is not the only environmental impact that the vehicles would
cause. Parking of the excess cars, especially permanent, in open areas, reduces available open space underneath them for rain water harvesting, which enables charging of ground water aquifers – another adverse impact on environment, to which the petitioner could be a contributory.”
Surprisingly, the original draft bill had used the word ‘parking areas.’ However, when the Bill went to the select committee of Rajya Sabha set up to analyse it, the committee prefixed the world ‘open’ before the parking areas.
Highlighting the select committee’s observation and recommendations on the definition of common area, the committee ‘s report said: “The Committee desires that the definition of ‘common area’ should be made succinct so as to convey that the ‘common area’ is the entire common place in the project including the open parking, terraces, common facilities …..”
It’s interesting to note that the Union Cabinet chaired by the Prime Minister Narendra Modi has already approved the RERB as recommended by the select committee.