News: No clarity on parking laws in societies, residents cry foul-26-12-2019
Updated On : December 26, 2019
Recently, a group of residents protested against the builder in a Greater Noida (West) society for selling double parking spaces and reshuffling the existing slots.
NEW DELHI: Parking has become a bone of contention between builders and residents of high-rise societies due to lack of clarity on laws of allocation and charges. This often leads to disputes not just between builders and buyers but also among residents.
Recently, a group of residents protested against the builder in a Greater Noida (West) society for selling double parking spaces and reshuffling the existing slots. Many such cases are arising in societies across the country, especially in Delhi-NCR.
“After two years of allocation, the builder is now changing the parking slots to create new parking spaces to sell them at higher cost. Reshuffling is being done, causing inconvenience to existing residents. I have already registered my flat which includes the cost per area of the flat and facilities like parking. Now, how can the builder sell parking? The local authorities need to bring transparency in allocation of parking spaces and curb this practice by the builder,” says Anoop Dwivedi, a resident of a high-rise society in Greater Noida West.
How can these societies regularise parking in the absence of clear-cut laws?
Supreme Court Judgement
Supreme Court in the Nahalchand Laloochand Pvt Ltd vs Panchali Co-operative Housing Society Ltd, held that builders or promoters cannot sell parking areas as independent units or flats. These are to be extended as common areas and facilities. The apex court ruled that the developer is only entitled to charge the price for the common areas and facilities from each flat owner in the proportion to the carpet area of the flat. Despite the judgement, implementation is still lacking on the ground.
In the apartment Acts of many states such as Uttar Pradesh, Karnataka, Maharashtra, common areas are defined but these laws are silent on many issues related to parking charges, allocation, double parking slots etc.
What does UP Apartment Act say?
Section 3 (I) (iii) of the Uttar Pradesh Apartment Act defines common areas including the basement, cellars, yards, parks, gardens, community centres and parking areas of common use. Consequently, only independent areas, not included as common areas, may be sold by the promoter.
The Real Estate (Regulation and Development) Act, 2016 also treats open parking and common basements as part of common areas. These areas are basically meant for use of all owners in a society and it is the duty of the resident’s body to manage this once the society is handed over by the builder.
"There is no comprehensive policy related to parking space in high rise societies. The realty act treats open spaces as part of common areas, which cannot be sold. We take the view of both the buyer and builder in case of dispute related to issues like parking. But we can't take specific action regarding allocation of parking space in the absence of any comprehensive parking policy. However, we will act where the same parking space is allocated to two buyers or any other issue troubling a homebuyer," says Balvinder Kumar, member of UP RERA.
Delhi High Court ruling
In case of dispute, the court often refers to the state laws and decides. Anup Mittal (Huf) vs M/S. Kanungo Co-Operative Group is one such case which clears many doubts related to the use of common areas.
The Delhi High Court in this case upheld that common areas are meant for the use of all and parking of cars is considered an encroachment. The high court ruled that members in a society cannot park their cars at common areas as it violates the sanctioned building plan.
No Statutory Provisions
These two cases provide some clarity that neither the builder nor any single society member enjoy any exclusive rights on the common areas. Currently, many builders allocate parking on the basis of first come, first serve basis but builders often find loopholes to sell parking spaces at exorbitant prices as there is no clarity from the government on how the charges should be fixed.
Shivam Yadav, a lawyer in Allahabad High Court and a standing council of Noida Development Authority, says, “Earlier a building was constructed as per the National Building Code. Now states have their own laws. For example, the UP Apartment Act takes care of apartments and related issues. However, there are no clear guidelines related to charges or how parking slots need to be allocated to residents. That process is missing from the statutes.”
Yadav further adds, “Builders make a huge amount of money by selling single or double parking slots. Ideally, parking should not be sold by the builders. But their argument is that basement parking or stilt parking are part of FAR and there is a cost attached to it so they can charge for it.”
Local Authorities
Local government authorities and resident’s body also have no clear law to follow. The basic rule is that builder has to complete the project and hand it over to residents who will then make bylaws and manage the society accordingly. There are no statutory rules for allocation and parking charges and builders misuse this loophole.
“A new situation has developed recently due to which many litigations are coming up in courts related to issues of parking allocations and common areas. Both the Supreme Court and high courts have directed the local authorities to provide sufficient parking spaces to residents. For example, if a society has 100 parking spaces then the builder should at least have 150 parking slots,” says Yadav.
Model Building Bylaws
Apart from apartment laws, model bylaws also clearly lay down the basic principles according to which a society needs to run. Penalties will be levied, and registration of societies can also be cancelled in case of violations but there is no implementation.
As the high-rise culture is growing, the country needs clear-cut policies not just related to parking but for overall management of these societies to minimise court cases.
