Can a property buyer Own or occupy terrace of a society building?

 

Owning or occupying of terrace of a society building is unfair and illegal practice. 

Builder/developer has no right to sell the terrace.

Some developers of the co-operative housing societies resort to the unfair practice of selling the roof top / terrace. It has also come to light that in some housing societies, owners of the flats at the top floor claim ownership of the terrace and dissuade other owners from using the same. Both these actions are contrary to the stipulations made in law.

According to section 4 (1A), (iii), (viii), (x) and section 10(1) of Maharashtra Ownership Flats Act, 1963, builder/developer has no right to sell terrace. No measure either individually or collectively give any authority to any builder or even the society to sell terrace of a building. As per law all open spaces in a building including the terrace is a common easement for benefit of all the members, who are entitled to enjoy the same as shown in Municipal Corporation records. No single member can appropriate and deprive others of the benefit of common easement. When the BMC sanctions a building plan the terrace is not taken into consideration for the purpose of calculation of Floor Space Index as it is for the use and benefit of all the members (flat owners) of that society.

Owning or occupying of terrace of a society building is not permitted by law and if any body does that it is totally illegal. The law and BMC rules are amply unambiguous and clear in this regard and there is no provision at all under which terrace of a society building can be sold or bought. There has been a landmark judgment delivered by Hon’ble Mumbai High Court in the year 1999 in this regard while adjudicating on writ petition No. 4577 of 1985, in the matter of Smt. Ramagauri Keshavlal Virani V/s Om Walkeshwar Triveni Co-op housing society Ltd & others. Advocate Vinod Sampat an expert in Co-operative Housing Society matters is also of the same opinion and says that no person can own, sell or buy terrace of a co-operative Housing Society building.

Hence any one who indulges in such unfair and illegal practice does so at his own peril because it has got no legal sanction and is always subject to litigation and a person doing so will be on the wrong side of law.