Parking woes: This is how RERA distinguishes parking space and garage
The Real Estate (regulation and development), Act, 2016 (RERA) for the first time clearly defines that parking will be part of the common area
A homebuyer, who recently moved into a new 3BHK apartment in Bengaluru, was in for a not-so-pleasant surprise when he found that the size of the parking lot allotted in the basement of the building for which he had coughed up Rs 1.5 lakh was so small that even his small car could not fit in. But will RERA change all that?
Interestingly, the Real Estate (Regulation and development), Act, 2016 (RERA) for the first time clearly defines that parking will be part of the common area which includes the staircase, lift, lobby area, parks, open parking area, basement and common storage spaces. It also defines a garage to mean a place within a project having a roof and walls on three sides for parking any vehicle.
“What this means is that under RERA, a developer can sell a garage but not a parking since it is part of the apartment and a common area. Going forward, in a housing complex, buyers purchasing an apartment can hope to get details of all the common facilities including lifts and parking clearly scheduled in the sale deed,” says S K Pal, a Supreme Court lawyer.
Some newly formatted agreements to a sale being readied by developers after RERA also clearly state that the allottee shall have an undivided proportionate share in the common areas and that the parking shall be treated as a single indivisible unit for all purposes. Many of these agreements follow the agreement to sale template notified by the ministry of housing and urban poverty alleviation for union territories.
Watch: How RERA is going to change your homebuying experience
“There needs to be a formal system of allotment of parking in place otherwise it will lead to ambiguity. The garage is now part of the floor space index (FSI) or floor area ratio (FAR). New agreements will all include reference to the total cost of the apartment and the attachments that buyers will be given such as parking, power back-up etc,” says Manoj Gaur, vice president CREDAI – National and MD, Gaursons Group.
Garage versus open parking
The fact that RERA has clearly differentiated between what a garage is and what an open common area parking is a positive move, say legal experts.
Earlier, 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 sells the unit basis the carpet areas and therefore the need to specify the common areas, that include the parking areas, separately,” says Pal.
Since builders were not selling apartments on the basis of carpet area earlier, there was no way by which buyers could calculate the common area that they were expected to pay for. “Even though the number of flats and the number of floors increased, the apartment owner’s share in the common area never decreased. Under RERA, buyers will get a decisive benefit. Some confusion over the owners’ share in the common area may arise and clarity is required with regard to that aspect,” says Narendra Kumar, advocate on record, Supreme Court.
What should be the size of a parking
State authorities generally approve the number of apartments in a project on the basis of the number of parking spaces offered by the developer as it is now mandatory to offer parking space under the law. Bylaws define the ratio of parking versus the apartment size. Usually, one parking is compulsory for a 3BHK apartment and 2 parking for a 4BHK unit. A parking space under bylaws is defined as equivalent car space or ECS. The total area by definition should be approximately 2.5 m X 4.5 m.
“There have been cases where the size has been shrunk by builders to accommodate more parking space. Buyers must, therefore, ask for the parking plan sanctioned by the authority and cross check whether the number of parking constructed by the builder in a row is as per the plan that has been sanctioned,” says Pal.
“Buyers should check for numbers such as 90A and 90 B etc, these could all be additional parking created by the builder. In this case only parking no 90 may be valid,” he says.
The issue of parking being sold by builders came to light in the 2010 judgment (Nahalchand Laloochand Pvt Ltd vs Panchali Cooperative Housing Society) in which the Supreme Court rejected the builder’s argument that he is entitled to sell stilt parking areas as separate flats to owners who intend using it as parking. The bench had ruled that the builder can charge only for the common areas and facilities from each flat owner in proportion to the carpet area of the residential unit. RERA clarifies it and goes a step further by allowing garages to be sold.
"A garage means a place within a project having a roof and walls on three sides for parking any vehicle, but does not include an unenclosed or uncovered parking space such as open parking areas,” says RERA.
Going forward, builders may construct garages and even earn a premium on them as they can now be sold independently. Builders can now even execute a separate sale deed or a sub deed for a garage, say legal experts.