As per the scheme of the Tamil Nadu Apartment Ownership Act, car parking area is to be treated as part of common areas and facilities As per the scheme of the Tamil Nadu Apartment Ownership Act, car parking area is to be treated as part of common areas and facilities
NEEDS ATTENTION: A raging issue with flat owners.
One of the issues that frequently arises in purchase of an apartment is the allotment of car park for the apartment owners.
While approving a plan for construction, the authorities sanctioning the approvals may sanction certain areas specifically as car park. This may be approved as an open car park or a covered car park.
The consideration for providing the sanctions on the part of the authorities may also vary depending on whether the building is residential or commercial in nature. The typical use of the building may also be taken into consideration.
We are not on the factor of how the car park is approved. This discussion rather relates to the aspect of allotment of car park. There is an element of adjustment insofar as two wheeler parking is concerned and you may not be surprised to find that the two wheeler parking is not the subject of any of the documents and the mindset of the apartment owners or occupants on this aspect is a state of cordial adjustment. However, car park is a different matter as one is required to pay for the same.
In the recent times, it is seen that this particular aspect is causing acrimonious debates and caustic exchanges between the apartment owners and in fact, there is a substantial lack of understanding as to how the car park allotment is to be made and is to be used or enjoyed by the owners concerned.
In understanding this aspect, the common interest and rights in an apartment complex have to be kept in mind. The developments relating to this aspect in law also tend to favour the common interest. In this regard, what was earlier a matter of right has changed with the concept of apartment ownership which is based on common interest.
To give an example for the above position, an apartment can be treated as an independent property. The fact that this includes the undivided share of land and amenities and common facilities forming part of a larger extent in which the common interest of others is also involved does not affect the nature of exclusive ownership and possession of the owner of the apartment concerned. The apartment owner cannot demand a partition of his undivided interest in the entire property. This is necessitated to promote the common interest.
As per the scheme of the Tamil Nadu Apartment Ownership Act, “common areas and facilities” have been defined. This includes parking area as it is specifically included in the definition. Hence, it is clear that the car parking area is to be treated as part of common areas and facilities.
In the present times, almost every apartment has an open or a covered car park. Certain apartments may have more than one. Hence, in matters where some of the apartments were not allotted car park or where an extra car park is allotted to the owners of certain apartments only, such car park has to be treated as part of “limited common areas and facilities”. Limited common areas and facilities means such of those common areas and facilities designated for the use of certain specified apartments only.
The Tamil Nadu Apartment Ownership Act has not become operative fully and the Deed of Apartment contemplated by the said Act is not being registered. However, in the format prescribed in the rules of the Deed of Apartment, parking area is included as an amenity.
The general practice is to include the description of the car parking area in the Construction Agreement.
There is also a practice of allotting the car park area as part of a separate agreement or MOU or even an allotment letter by the builder. Depending on the availability of the car park area, the builder indicates with sufficient clarity the car park number and often sketches or plans are also annexed.
Further, there is also a practice of marking on the car park area the flat number concerned indicating the fact that it is for the use of such flat or apartment on an exclusive basis. No registered document is executed for this purpose.
Taking into consideration the provisions of law, the practice that is available in the trade and other aspects, it can be taken that the only way of allotting the car park has to be by an unregistered instrument which creates an exclusive licence for the owner concerned to use the car park as part of the common area and facilities. No registered document can be executed because only undivided share of land is conveyed to the apartment owners for the purposes of holding the land proportionate to the apartment concerned.
However, the car park is a demarcated area. Legally, considering the fact that common interest is already created in the entire extent, there cannot be a demarcation in favour of a particular owner without a partition.
Hence, legally and factually, it is not possible to hold a demarcated area in an apartment complex under a registered Sale Deed or other deed of conveyance.
The present practice has come about only in recognition of this fact. As such, the allotment of one or more car park to owners of apartments, depending on their total holdings, by an unregistered document, will be a valid method of allotment and such owners will have an interest in the nature of licence in the said car park area.
This is also consistent with the basis that normally Construction Agreements need not be registered (if the Construction Agreement is not consequent to the sale of the undivided share of land by the owner) and the documents in the nature of allotment of car parks being a limited amenity or a facility need not be registered.
The author is partner, RANK Associates, Advocates, Chennai.
Source :THE HINDU:PROPERTY PLUS