Today, most developers are selling stilt car parking separately but it is illegal as held by the Supreme Court. Common areas cannot be sold by the Builder/Promoter but the Co-operative Society can regulate such spaces to allow parking to the members of the society.
However, selling car parking space is not illegal and developers can sell car parking space as mentioned within their agreements. The only bar is to sell stilt car parking space, as it is considered to be a part of the common area of the building/apartment. Developers and promoters are bound by the terms of the agreement, and if within the agreement, flat owners are entitled to car parking space, then the developers should approach the flat owners first regarding selling car parking space to outsiders. Further, within a cooperative housing society, the developers should approach the landowners before selling space to outsiders.
In Aloke Nath Bhadra vs Smt. Sumitra De, the West Bengal State Consumer Disputes Redressal Commission of West Bengal held:
“In all fairness, before selling out the car parking spaces to outsiders or third party, the developer should have consulted with the landowners so that no dispute cropped up in the future. The intention of the developer was, therefore, is very clear to victimise the landowners from getting their share of car parking spaces.
Needless to say, the parties are bound by the agreement. When the Agreement clearly stipulates that the landowners are entitled to two car parking spaces of 100 sq. ft. each, before selling out to any other party, the developer should approach the landowners. This shows clear negligence and deficiency on the part of the developer.”
This case clearly shows that developers and promoters should consider what is within the Development Agreement and Sale Agreement, and cannot sell parking space to outsiders without providing the necessary parking space to the rightful owners.
The Supreme Court in Nahalchand Laloochand Private Limited v. Panchali Cooperative Housing Society Limited held as under :
“49 The question then is as to whether the stilted portion or stilt area of building is a garage under MOFA. A stilt area is a space above the ground and below the first floor having columns that support the first floor and the building. It may be usable as a parking space but we do not think that for the purposes of MOFA, such portion could be treated as garage.
65 ……..The promoter has no right to sell any portion of such building which is not a “flat” within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organisation; the only right which remains with the promoter is to sell unsold flats. It is, thus, clear that the promoter has no right to sell “stilt parking space” as these are neither a “flat” nor appurtenant or attachment to a “flat”.”
But we have already held that `stilt parking space’ is not covered by the term `garage’ much less a `flat’ and that it is part of `common areas’. As a necessary corollary to the answers given by us to question nos. (i) to (iii), it must be held that stilt parking space/s being part of `common areas’ of the building developed by the promoter, the only right that the
promoter has, is to charge the cost thereof in proportion to the carpet area of the flat from each flat purchaser. Such stilt parking space being neither `flat’ under Section 2(a-1) nor `garage’ within the meaning of that provision is not sellable at all.
The promoter has no right to sell any portion of such building which is not `flat’ within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organisation; the only right remains with the (2008) 4 SCC 144 promoter is to sell unsold flats. It is, thus, clear that the promoter has no right to sell `stilt parking spaces’ as these are neither `flat’ nor appurtenant or attachment to a `flat’.
Stilt parking or open parking of any building has to be regulated by a co-operative housing society when formed and under its bye-laws. General Body of a co-operative housing society has got every right to dispose of or to make an arrangement of parking of the vehicles of the members/flat-occupiers by laying a policy to that effect in its general body meeting and the Managing Committee of such co-operative housing society has to carry out the directions given in this behalf by the general body of the society.
The Bombay High Court held in M/S. M. Mamotra Associates vs Cooperative Societies Act on 3 January, 2013 (2010) 9 SCC 536 that:
“Clause (21) reads as under –
21. The Buyer of the respective Flats shall be entitled to use and occupy their respective flats only and will not claim any rights in the terraces, staircase, open spaces, compound, parking places, stilts, Garages, etc.”
“From this it is clear that the claimant was fully aware of the fact that what he could sell to the new flat purchasers was only the flats and nothing else. Moreover, stilt car parking space is an immovable property and if at all it is to be sold, it is to be sold by the registered Agreement, as required under the provisions of the Transfer of Property Act. No such agreement has been produced by the Claimants. This was obviously because he was fully aware that he has no right to sell the stilt car parking spaces.”
It is important for apartment owners/buyers to ensure that they have car parking space allocated within the sanctioned building plan as well as the agreements. It is important to consult a professional lawyer before signing any agreements with the developers or promoters. If you need guidance you can check out HousingNinja.com for all your housing related inquiries.