Parking space, common areas to find separate mention in agreements

POSITIVE MOVE Builders will now have to specify common as well as carpet areas in property sale documents

Some newly formatted agreements to sale being readied by developers clearly state that the allottee shall have undivided proportionate share in the common areas and that the garage/ closed parking shall be treated as a single indivisible unit for all purposes.

Parking space will now be treated as single indivisible unit.

Many of these agreements follow the agreement to sale template notified by ministry of housing and urban poverty alleviation for union territories. No state has so far notified the agreement to sale rules.

“The right of the allottee to use the common areas shall always be subject to the timely payment of maintenance charges and other charges as applicable. It is clarified that the promoter shall convey undivided proportionate title in the common areas to the association of allottees as provided in the Act,” says an agreement to sale.

It also clarifies that the computation of the price of the apartment or plot includes recovery of the price of land, construction of (not only the apartment but also) the common areas, internal development charges, external development charges, taxes, cost of providing electric wiring, fire detection and firefighting equipment in the common areas etc and includes cost for providing all other facilities as provided within the project, it says.

It also clarifies that garage/ closed parking shall be treated as a single indivisible unit for all purposes.

This, say legal experts, is a positive move. Earlier the developers would sell an apartment based on the super area due to which common areas and parking areas were never specified separately in the sale deed. “The statute now demands that the builder sell the unit basis the carpet areas and therefore the need to specify the common areas and the parking areas separately,” says SK Pal, a Supreme Court lawyer.

The new agreements also spell out the rights a customer has as per the agreement and after possession of the apartment. Now a customer is entitled to specific performance by the builder as a buyer.

“If the promoter fails to deliver or do something, then the purchaser can go in for specific performance. What this means is that instead of claiming damages or compensation, the buyer has the right to make sure that the developer performs the obligations laid down in the contract,” says Akshat Pande, partner, Seth Dua & Associates.

As for the force majeure clause, these agreements specify that the developer has to hand over possession unless there is delay or failure due to war, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature affecting the regular development of the real estate project.

“A promoter cannot terminate an agreement on account of increase in cement prices or lack of adequate labour. Force majeure clause is applicable to conditions that are beyond human control, something that impacts a developer’s capacity to perform the contract,” explains Pande.