Parking Space and Terrace

SALE OF OPEN PARKING SPACE AS WELL AS SALE OF OPEN TERRACE .
As per the provisions of the Maharashtra Ownership Flats Regulation of Promotion of Construction, Sale, Management and Transfer Act 1963 commonly known as MOFA, builders in our opinion have no right to sell the open car parking as well as the open terrace. It has been held in Ferena Co-operative Housing Society Ltd., V/s. Miss Synthia Lobo that interest in the car parking is independent of the interest which a member has in the flat occupied by him. The entire parking spaces. The member does not have a transferable interest but only a restrictive interest in the parking space allotted to him. It has also been held in Ramagiri Keshavlal Virani V/s. Walkeshwar Triveni Co-operative Hsg. Ltd. , that the builder cannot dispose of the terrace to one of the purchasers of the flat . It has been held in Shakari Nagar H.H.C.H.S Ltd., V/s. Shri J.G. Sharma that no member has an absolute right on the open space detrimental to the common interest of other members. The view in this regard is clear that ground floor occupants of a building cannot exclude other members of the said building from user of the open space around it on the basis that it is only meant for him as apartment and not for others. As per the provisions of the Indian Registration Act 1908 subject to the exemptions the sale, purchases of immovable property as well as right , little and interest in immovable property above Rs.100/- should be compulsorily registered . Such type of documents are normally not registered .

.FSI/ TDR BENEFITS TO SOCIETY.
If the builder is permitted to carry out additional construction in the society then the society can also be benefited . These things are possible now having regards to the acquisition of TDR as well as utilisation of balance FSI . We may add that we can guide you in such matters specifically with regards to the documents that have to be executed by you with the developers. We may add that if all members of your society are co-operating and the society has got the conveyance then we have Developers who could be interested in developing the property resulting in additional area/ monetary gain to the members of the Society .
DEFICIENCY OF SERVICE UNDER CONSUMER PROTECTION ACT 1986.
If (a) the possession has been delayed by the builder,(b) demanding escalation after more than two years from the date of allotment of property, (c ) defects in the title of land ,(d) not giving copies of building plan, (e) not giving statement of accounts ,(f) Conveyance has not been executed in favour of the society then in our opinion such acts of the builder/developer amounts to deficiency of service as per the provisions of Consumer Protection Act 1886. A number of judgements have been delivered in favour of consumers .Landmark judgements on consumer protection laws are (I) V.J. Deshmukh V/s. Premier Builders ,(ii) S. K. Gulati V/s. M/s. Kanya Builders Pvt. Ltd. (iii) Surendra Kumar Sengar V/s. Lucknow Development Authority ,(iv) Jalandar Improvement Trust V/s. Joginder Singh , (v) G.D.A. V/s. Raj Mohammad, (vi)Sri Sai Housing Enterprises V/s. G. Gopi.
CONVEYANCE
It is in the interest of the society to obtain the conveyance. The benefits of FSI/TDR cannot be availed by the Society in the absence of conveyance . Normally banks also do not give loans to Co-operative if it does not have the conveyance . With the passage of time their could be (a) disputes amongst the Developers and the owners of land. (b) disputes amongst the builders. ( c) Dissolution of the firm of builders (d) death of the builders , (e) change of business by the builders . Therefore , it would be in the interest of the society to get the conveyance executed as in the long run the society is bound to gain if it gets the conveyance .
CONSENT TERMS
If there is a contract between the parties and if one of the parties is not complying with the terms of the agreement then in such circumstances the best course of action for the aggrieved parties is to file a suit in the court of competent jurisdiction . If at a later date the dispute is resolved then the parties can file consent terms. The parties in such circumstances are also entitled to a refund of 50% of the court fees. This is best explained with examples.

Examples :
A flat is given on leave and license for a period of say 11months. The Licensor is apprehending that he will not get back the possession on the due date. The Licensee has done additions and alterations in the said flat and has violated the terms of the agreement . The Licensor has filed a dispute in the court of competent jurisdiction . The Licensee requires the flat for a period of say 15 months. The Licensee has no objection if he gets back the flat positively at he end of fifteen months. In such circumstances the parties in our opinion can file consent term. If consent terms are filed then the parties are definitely bound to honour the same failing amounts to contempt of court .
A shop has been purchased by a person who has started a hotel . The open space is misused by him. Thereafter he approaches the Society for transfer of shop . The Society files a dispute for misuse of open space. The shop keeper does not propose to misuse the open space if the shop is transferred in his name. The parties can resolve the dispute by filing a consent term.
LEAVE & LICENCE
Registration of Leave &License Agreement is compulsory as per Section 55 of Maharashtra Rent Control Act 1999 failing which the landlord on conviction can be punished with imprisonment upto three month or with fine not exceeding Rs. 5,000/- or both.
The Owner/Licensor may prepare a separate agreement for deposit amount and license fee amount. It would be in interest of the Flat Owners i.e. Licensor to prepare separate agreement for service charges/hire charges for various items like Furniture. Fixtures which are provided to the Licensee . The reason for the same is once the document of Leave & License is registered , then it is very likely that the Bombay Municipal Corporation authorities will increase the Property Tax of the premises . At times property tax amount can be more than the rent collected by the Licensor . In fact in commercial premises trend is to execute Business Centre Agreement .
In our opinion if the activity is of a business centre then the same does not require compolsory registration .
In our opinion if the document is of a paying guest in a residential premises then the same does not require compulsory registration .
Irrespective of the fact if the document is of leave and license , business centre agreement or a document of paying guest basis it would be in the interest of the Licensor / Owner to take a Special Power of Attorney from the Licensee/Occupier of the premises.