Among the various nuances of living together in an apartment/society, one important aspect is parking spaces and efficient management of the same. With rapid urbanisation and life moving at a fast pace, having a means of transport be it a 4 wheeler or a 2 wheeler is not a luxury but a need of the hour. But with so many automobiles around efficient management of the same in an apartment or society ecosystem is also an exigency.
As simple as it may look and sound, parking involves a lot of niceties, ranging from parking rules to maintenance of parking lots etc. which can often be a cause of discomfort and occasional altercations between residents. We will cover various aspects of parking in residential apartments in this article.
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Kinds Of Parking in Apartments and Societies
Typically apartments provide for separate areas for 4 wheelers and 2 wheelers apart from guest parking. Parking spaces can also be covered (stilt) or open or maybe at the ground level or basement level.
Usually apartments with many units do provide for a separate guest parking to ease the parking for residents. Guest parking areas generally are kept apart from regular resident parking and guests are provided with a token which would have the details of the intended parking spot.
Cost Aspect In Buying A Parking Space
As part of the payment plan while booking an apartment, developers charge an amount for an exclusive right to park your vehicle. This amount usually involves the right to park a 4 wheeler and one or two 2 wheeler.
If one were to look at the above example, the builder is charging an amount for the buyer’s exclusive right to park a car. This would include the base price and the GST as applicable. Subsequently registration of the same and the amount is to be paid at the concerned Registrar’s office.
Parking Areas Not To Be Sold As Independent Units: Supreme Court of India
In a landmark judgement, the Supreme Court of India upheld a Bombay High Court ruling in the case of Nahalchand Laloochand Pvt. Ltd. Vs Panchali Co-operative Housing Society Ltd. in 2010 stating that parking spaces cannot be sold as independent real estate units. A brief look at the facts are as follows-
- The developers Nahalchand Laloochand Pvt. Ltd. entered into an agreement with flat purchasers who were members of Panchali Co-operative Housing Society Ltd.
- The developers and the society members entered into an agreement according to which the developer could sell the stilt parking/open parking spaces to outsiders i.e. people who do not own flats in the building as a separate independent unit like flats in a building. However in the later course of time, the society members disagreed.
- The developer then approached that the Bombay City Civil Court and sought a permanent injunction against the society members so as to not disturb/obstruct/interfere with the possession of the 25 parking spaces in the stilt portion of the building.
- The developer argued that under the agreements for sale it has sold flats in its building and each flat purchaser has right in respect of the flat sold to him and to no other portion. It was stated that each flat purchaser has executed a declaration/undertaking in its favour thus implying that stilt parking spaces/open parking spaces shown in the plan exclusively belong to the promoter and that the flat purchaser has no objection to the sale of such spaces by it.
- On the other hand, the society members pleaded that the developer has no right to sell or dispose of spaces in the stilt portion and that the undertakings or declarations that the flat purchasers signed are not binding and the developer has no right to acquire the stilt parking on the basis of such undertakings.
- The Bombay City Civil Court dismissed the developer’s suit. Subsequently they approached the Bombay High Court as an appeal. This was also duly dismissed. The developers then sought intervention from the Supreme Court of India.
The Key Takeaway From Judgement
Parking slots as independent units cannot be sold to outsiders by builders/promoters since these areas are to be for a price to the purchasers of flats and the builder/promoter can only charge as towards common areas and facilities from each flat owner in proportion to the carpet area of the flat.
The Court Held Following Key Points In Its Judgement
- The parking space either enclosed or unenclosed, covered or open cannot be a `building’.
- It is compulsory requirement to provide for parking spaces under the Development Control Regulations for Greater Bombay, 1991(DCR)
- It is obligatory on the part of the promoter to follow the DCR. The agreement signed under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act (MOFA), 1963 between the developer and the flat purchaser has to be in accordance to the model form of agreement (Form V) prescribed by the State Government. The model agreement does not require the flat purchasers to separately purchase the stilt parking spaces.
- Any agreement signed between the buyer and developer under the MOFA gives the buyer certain rights and such rights cannot be diluted by any contract that is contrary to MOFA.
- The stilt parking space is a common parking area available and the developer is obliged to provide the same under the DCR. It is not an additional premises/area that he is authorized to sell either to flat purchaser or any outsider. It is part and parcel of the Society building and it cannot be a separate premises available for sale. As soon as the Corporation issues the occupation certificate and the Society is registered, the building as well as the stilt parking spaces, open spaces and all common amenities become the property of the Society.
- The stilt parking spaces cannot be put on sale by the developer as he ceases to have any title on the same as soon as the occupation certificate is issued by the Corporation and it becomes the property of the society on its registration.
- The stilt parking spaces cannot be termed as `open/covered garages’ and Clause 2 of the Model Agreement–Form V provides for sale of covered/open garage in addition to the flat/shop.
- It is immaterial if the purchase agreement does not include stilt car parking spaces in the common area of amenities. The stilt car parking spaces is part of the common amenities and it cannot be treated to be a separate premises/garage which could be sold by the developer to any of the members of the society or an outsider.
- Under MOFA, the developer’s right is restricted to the extent of disposal of flats, shops and/or garages, which means that any premises which is included in the Flat Space Index (FSI) can be sold by the developer/promoter. The stilt parking space is not included in the FSI nor it is assessable for the Corporation taxes.
Maintenance Of Parking Areas
Under the Real Estate (Regulation and Development) Act, 2016, open parking areas are covered under the definition of ‘common areas’ as per Section 2(n)(iii) of the Act. Every developer has to decide the number of parking spots on the basis of the flats that are to be sold in an building/apartment. The apartment complex as a whole shall own the parking spaces as well as be responsible for their upkeep and maintenance.
After the 2010 Supreme Court of India judgement, it is illegal for developers to sell parking spots as an individual entity. However a developer can allot a parking space on a ‘first come first serve’ basis. Once the developer has handed over the apartment to a society or association, the rules and regulations related to parking can be decided by them collectively. Parking area lights and security are also the liability of the society.
With space crunch and rapidly declining land spaces, parking is a major bone of contention everywhere. It would be feasible for apartments to frame rules that would deter residents from using more than one vehicle or one 4 wheeler and one 2 wheeler alternatively. Another alternative would be to make parking for guests visiting residents paid so as to restraint flooding of cars in the parking lots. This is particularly valid in places where there may not be a separate guest parking thus allowing guests to park their car in the residential parking spaces. Thus the need of the hour is to also provide ample security and lighting in parking areas so as to ensure unauthorised cars are not parked which may pose a threat to residents at large.
The parking scenario in some of the major cities is worrisome. While buying a vehicle has become truly affordable, the same cannot be said with parking spaces. According to statistics, Mumbai has the highest density of vehicular traffic of 1,417 per km. According to an economic survey by the Government of Maharashtra in 2017, the city has about 10.27 lakh LMV (Light Motor Vehicles) and out of this 90% is private owned vehicles. Despite so many vehicles, parking is a nightmare. The roads are choked due to cars being parked on the road as there is a lack of designated parking spots available. Thus drivers end up double and triple parking creating traffic jams and inconvenience to all at large.
The situation in Delhi remains bleak as well. With Delhi having about 1 crore cars as on 2016, the parking situation is also as bad. With very few parking places available, parking is usually ‘first come first serve’ basis except in apartments which provide for predetermined parking spots.
Bangalore has a mixed of apartments and independent houses. The parking in independent houses generally happens in front of the residence as most houses did not envisage a parking space in the plan. Subsequently most people ended up creating a garage or park on the road thus congesting the roads and creating traffic snarls.
Traffic management and creating parking spaces go hand in hand. Addressing this important issue is of primary concern and it has to be dealt with at all levels.
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