PUNE: In a clear departure from the provisions of Real Estate Regulations Act, 2016, many developers have uploaded “agreement pro formats” on the authority’s website not in consonance with the norms.
According to legal experts, this seems to be an “attempt” by developers/promoters to work around some of the clear and stringent provisions of RERA. The most striking variation is in the respective treatment of open spaces.
“The opens spaces and internal roads will not be conveyed and the promoter shall be entitled to deal with and treat the said open spaces as per the law and shall be entitled to appropriate the benefits arising therefrom,” reads a pro forma of an agreement on the MahaRERA website.
Another one reads, “The owner/promoter shall be exclusively entitled to hold and otherwise deal with, in all respects, for its own benefit and account the amenity area/ open space in such a manner desired by the owner/promoter.”
Many others stated that “all the open areas in the said project will remain the property of promoter until the said structure is transferred to the association of allottees”.
The first two instances are in direct contradiction to the RERA Act, which states that the promoter is obligated to transfer open spaces to the association of allottees when the society is conveyed (which also needs to be done in a specified period after receiving the occupancy certificate).
Legal experts think that the clauses have been inserted by the developers to apportion what they can retain and control. For instance, by introducing the above clause in the agreement, builders might try and sell/allot open car parking spaces — an act barred under the RERA. But will it stand legal scrutiny?
According to the 2010 Supreme Court judgment, which upheld the rulings of the Bombay City Civil Court and the Bombay high court in the case of Mumbai’s Nahalchand Laloochand Pvt Ltd versus Panchali Co-operative Housing Society, the agreements or undertakings given by the purchasers to the developer cannot run contrary to the law. The court finally struck down sale or allotment of open car parking, even when the RERA was not in vogue.
“All the amenities and open spaces where the building is situated is a property of all the members of the society and cannot be sold/allotted selectively,” said property lawyer Harshal Jadhav.
According to Rohit Gera of Gera Developments, “Open car parking is a part of common area and, as such, common areas are to be owned proportionately by all flat owners. Therefore, if proportionate allotment is done, it is permissible.”
He, however, said that proportionate allotment has to be “ratified” by the society when it is formed, else the same can be overturned. Only a few of them cannot be “allotted” open car parking, he clarified. So, will the allotted parking (if any) be struck down if a formal complaint is made?
“Yes, by order of respective authority/forum … In both the cases where agreement is executed under Maharashtra Ownership of Flats Act or the RERA,” said another property lawyer, Kapil Gundawar.
But the question remains as to how the documents (in variation with the RERA) pass muster and are also put up on the authority’s website.
“We cannot go through the documents of every developer … There are over 17,000 projects. We act based on complaints. Whenever anyone makes a complaint, we hear both the sides and give a judgment, irrespective of the document on the site,” said Gautam Chatterjee, chairperson, MahaRERA.
Source: Press Trust of India