Lawfarm Team
in Property Law Consumer Law Criminal Law Contracts Law Civil Law Constitutional Law
Asked June 07, 2016

breach of contract: promised parking place not allotted

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A Memorandum of agreement was made on 12/12/2010 on purchasing a flat with the builder. The apartment consists of 9 flats but only 4 parking spaces shown in the drawings which is given by the builder along with the agreement. I was asked to allot me a for separate car parking while entering into the agreement itself. The builder told that car parking will be allotted after the property registration in the view of “first come first serve basis” as no of car parking is lesser than the no. of flats. Later, I came to know that the builder obtained approvals from CMDA for only 6 flats but the constructed 9. The builder handed over the flat in the month of Feb/Mar-2013 and said that as I was very late in the property registration so I will not be getting an individual car park, and allotted a space which was not shown as car parking in the original drawing. The builder collected about 1 lakh rupees for this allotment and said that the space available is well suited for a car and also informed that he has conveyed this information other owners as he created a new car park space. But actually others started creating problems indirectly. Later, when I went to find out about the sequence of property purchasing made, I was surprised to know that I was the one who purchased the flat first. I demanded an explanation and a car park from the builder, he has not responded yet. Please advise me how I can come out this, I am badly need to have a separate car park

Answer 1

Based on the bylaws that govern apartments in Chennai, parking spaces cannot be sold as a separate entity. Car parking and open terraces are supposed to be a society's common area. Parking spaces are not considered a part of the apartment and hence, cannot be sold as a separate entity. Developers can sell parking spaces only if they manage to prove that they have used the FSI (Floor Space Index) allotted to them to develop the parking space.   A 2010 Supreme Court ruling mentions that buyers do not have to pay for the purchase of parking space, either open or closed, that is built by the builders.[1] Through various cases, courts have settled that selling of parking spaces is illegal. Hence any transaction of buying them would be null and void.     If your Deed mentions “Common Areas and Facilities”, it is deemed to include parking areas as well, unless it specifically says it does not. This is under The Tamil Nadu Apartment Ownership Act, 1994[2], and under this Act, each apartment owner is entitled to an undivided interest in the common areas and facilities as specified in the Deed of Apartment. The parentage of the undivided interest of each apartment owner in the common areas as expressed in the Deed of Apartment has a permanent character, and can’t be altered without the consent of all apartment owners. [3]     Hence, your case will depend largely on what is there in your sale deed. However, you have many remedies.   Remedies available: If the developer is a member of CREDAI, the grievance can be taken up with the CREDAI Chapter in the city having the Customer Redressal Forum to find solution. You can file a complaint online by clicking here. Once the complaint is received, it is duly filed, serial numbered and sent to the members against whom the complaint has been filed. He then has to respond within a stipulated time from the date of the receipt of the letter. In case the response within the said period is not received, the same is to be brought to the notice of the Grievance Committee for action. The receipt of the comments from the Member, same shall be sent to the complainant. If deemed necessary by the committee, the members of the committee may carry out inspection at the site. If the Complainant is not satisfied by the reply of the Member and if issue is not resolved the committee shall call both the parties for personal hearing and tries to resolve the issue with a suitable order and close the matter.[4]   If your builder is a non CREDAI builder, you can call the National Consumer Helpline (1800-11-4000) or visit the CORE (www.core.nic.in) website.   Alternately you can also file a complaint against the unfair practices of the builder before the Competition Commission of India which has been empowered to investigate anti-competitive practices and impose stringent penalties on the offenders. You can learn more about how to file a complaint with CCI by clicking here.   If all fails, the last resort is to file a case in the consumer court. If in case your case is dismissed in the consumer court, you can approach the High Court and seek redressal.     [1] Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd [2] Available here. [3] Section 6 of the Act. [4] http://blog.indiaproperty.com/feeling-cheated-by-your-builder-heres-what-you-can-do/
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