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

HT Estates - - NEWS - Jee­van Prakash Sharma

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.

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