Rights over the common areas of residential projects are points of contention

[dp2013]

Who owns the common areas of a construction projects, especially of a residential project? This is one of the questions whose answer is sought by the buyers because the builders are often found to exercise their rights over these areas. The residential welfare associations (RWAs) formed by the members are often found to be getting into conflicts with the builders over the rights over the common areas. In the regional context of NCR, the exact position of law differs from one state or the other as well as the nature of the project. However, the following points can serve as the informative guide for the prospective buyers:

1. The legal enactments in the different states with respect to the apartments type of residential projects clearly state that it is the RWAs which shall get complete control over common areas and that after handing over the project to the RWAs the builders have to say good bye and are left with no control over these areas. But, the situation on the ground is different. The sale deeds and other hand-over documents prepared by the developers/builders have clauses which aim to retain their control over these areas.

2. While, in the case of apartments, the developer is required to hand over the common areas to RWAs, in the case of townships, this handover is given to the municipal bodies. It is quite clear that the developers are given all clearances and the license to ‘develop’ the land in specified ways and after this is over, they have to make an exit after handing over the charge to the residents bodies or municipal bodies. The builders, as per law, can not claim the right of control over these areas.

It shall be noted that in the NCR region, it is only in Noida that the Noida Authority is a party to the sub-lease agreement which the builders carry out with the buyers. This makes it a party to any suit brought out against the developers of the project by the buyers with respect to the control of the common areas. In other parts of the NCR region, this is not the case. The respective authorities of these areas are not a party to the agreement between the developer and the buyer which leaves the buyers to fight either alone or along with the RWA for control over these areas.

It is also important to reflect the point of view of the builders. The most common reasons for them to seek control over these areas are for further development of these areas in future and for generating more profits by using these for commercial purposes.

[anuj020676]

In a recent post of Dheeraj, there was a news of final hearing in supreme court on 23rd July,2013 on the issue of "common area/facilities ownership" after the project is completed. Since then I could not find the status of that hearing in the news. If anybody knows further status/details, please post the same.
Ravindra Jain

[umesh.prabhakar1965@rediffmail.com]

Friends,

The next date of hearing of the case before Hon'ble Supreme Court is scheduled on 5th September,2013.


Regards

Umesh Prabhakar