They fall under RERA definition of common areas, says regulator.
The Maharashtra
Real Estate Regulatory Authority (Maha-RERA) has
ruled that open parking spaces fall within the definition of common
areas in the Real Estate (Regulation and Development) Act, and hence
developers cannot
charge homebuyers for them.
The ruling came during the hearing of a complaint by homebuyer Mahesh Shah against
Sunny Vista Realtors and Persipina Developers,
which is part of the Hiranandani Group. MahaRERA member Bhalchandra
Kapadnis directed Persipina to not charge any money if the parking space
is open, and charge Rs 4 lakh if it is covered.
According to the complaint, Shah had booked Flat 2803 in
Granville-1 in Hiranandani Palace Garden project in Panvel in 2010 by
paying Rs 59.63 lakh, excluding parking charges, maintenance charges and
taxes. Sunny Vista, the developer, promised Shah possession in June
2013. However, the realtor, which had taken a loan from
Punjab National Bank,
could not repay it, and the loan became a non-performing asset. The
project was then taken over by Persipina in 2014 and was rechristened
Hiranandani Fortune City, with Shah’s building registered as Argus with
MahaRERA with a May 2020 possession date.
Advocate Nilesh Gala, appearing for Shah, contended that Persipina did
not execute the agreement for sale after accepting more than 10 per cent
and 20 per cent consideration as per RERA and Maharashtra Ownership of
Flats Act (MOFA). He said the developer had also charged Rs 4 lakh for
parking space, which was not saleable under RERA definition, and
therefore Shah should be exempted from the payment.
Advocate Gala also contended that when Shah booked the flat the carpet
area promised was 153.47 square metres, or 1,652 square feet, but later
it was changed to 101.77 square metres, or 1,095.45 square feet without
their consent. He pointed out that changing the building plan without
written consent of the allottees contravened Section14 of RERA.
Advocate Ashwini Sankpal, appearing for Persipina, submitted that her
client took over the project in the auction in Debt Recovery Tribunal
when PNB took action under the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act. This was done
after all the home buyers in the project urged the DRT to protect their
interest.
She argued that the DRT order does not protect the date of handing over
the possession of flats promised by Sunny Vista Realtors, and the change
of developer was gazetted only in April 2016 after a formal approval by
Special Economic Zone Authority. Her client had to denotify the land as
SEZ on the insistence of the allottees and get approval as an
Integrated Township Project.
On the carpet area reduction, advocate Sankpal contended that the
original allotment letter was issued in 2010 and the carpet area was
calculated as per MOFA provisions, which include open and enclosed
balconies in carpet area. When Persipina registered the project under
RERA, the area was recalculated as 1,095.45 sq ft of carpet area and
105.7 sq ft balcony, and denied that there was any change.
Kapadnis held that there was no substance in the allegations of reduced
carpet area, change in approved layout plan. On the issue of date of
possession, he ruled that since the original project was stressed and
Persipina incurred additional costs to revive it as an integrated
township, he would hold April 30, 2018, as the date of possession. On
the issue of covered and open parking, Kapadnis compared the definitions
of common areas in MOFA and RERA and observed that the entire land for
the project, the staircases, lifts, staircase and lift lobbies, fire
escapes, common entrances and exits of buildings, common basements,
terraces, parks, play areas, common storage spaces and open parking
areas fall within the definition of “common areas” under RERA and hence
cannot be charged by the developer.
He directed Persipina to hand over possession on or before May 29, 2020,
pay interest at 10.2 per cent on Rs 57.78 lakh from April 30, 2018,
till Occupancy Certificate.