If you are stuck in such a situation, here is what to do.

Mr. Alok Verma recently purchased and registered a builder floor in Nagpur. The building is designed with a stilt plus four floors. According to the agreement and initial discussions with the builder, “Apex Developers,” each of the four floor owners was to be allocated one dedicated parking lane. The remaining area on the stilt floor, which includes the lift lobby and a utility room, was designated as a common area to be shared by all residents.

Mr. Verma was the first buyer to complete the registration process. His registered sale deed explicitly states that he holds a 1/4th undivided and indivisible share in the stilt floor, which includes the common areas. No other floors had been registered at that time.

Recently, Mr. Verma discovered that Apex Developers sold another floor in the building. Without his knowledge or consent, the builder has exclusively assigned the common utility room on the stilt floor to the new buyer. When confronted, the builder argued that he had the right to sell it because he had managed to get it approved as a saleable unit in the Occupation Certificate (OC) for the building.

This has raised serious concerns for Mr. Verma. He questions whether a builder can legally sell a part of the stilt floor that was promised as a common area, especially when his own sale deed guarantees him an undivided share in the entire stilt. He is also unsure if an OC can supersede the ownership rights established in a registered sale deed. He is seeking immediate legal guidance to challenge this action before more sales complicate the matter.

Advice in such cases

When you find yourself in a dispute with a builder over common areas, it is crucial to act methodically and swiftly to protect your rights.

• Gather All Documentation: Collect every piece of paper related to the property purchase. This includes the builder-buyer agreement, sale deed, payment receipts, brochures, sanctioned plans, and any email or written correspondence with the builder.
• Do Not Engage in Verbal Altercations: Keep all communication with the builder formal and in writing. This creates a record that can be used as evidence later. Send a formal letter or email outlining your grievance and quoting the relevant clauses from your agreement.
• Seek a Collective Approach: If other residents are affected, form a collective group. A united front is often more effective in dealing with builders and can also help in sharing the legal costs.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

Applicable Sections of Law

Such property disputes involve provisions from several Indian laws:

• The Real Estate (Regulation and Development) Act, 2016 (RERA): This is the primary legislation governing real estate projects. Section 14 of RERA mandates that the promoter must adhere to the sanctioned plans and project specifications. Any alterations to the common areas require the written consent of at least two-thirds of the allottees. Selling a common area is a direct violation of this Act.
• Bharatiya Nyaya Sanhita, 2023 (BNS): If the builder’s actions involve deceit and a clear intention to defraud from the outset, it could amount to cheating. Section 318 of the BNS, which deals with cheating and dishonestly inducing delivery of property, could be invoked.
• The Transfer of Property Act, 1882: This Act governs the rights and obligations of buyers and sellers. Once a sale deed is registered, the ownership rights, including the undivided share in common areas, are legally transferred to the buyer. The builder cannot unilaterally alter these rights.
• The Indian Contract Act, 1872: The builder-buyer agreement is a legally binding contract. The builder’s failure to provide the promised common area constitutes a breach of contract, for which you can seek legal remedy.
• The Specific Relief Act, 1963: This Act allows you to file a suit for a permanent injunction to prevent the builder from illegally selling or transferring the common area to a third party.

If you are the complainant

If you are the builder (the complainant in a potential counter-case or the respondent in the buyer’s case), your approach should be cautious and legally sound.

• Review All Approvals: Scrutinize the sanctioned plans, the Occupation Certificate (OC), and completion certificate. Verify if the “common room” was indeed approved as a separate, saleable unit or if it was marked as a common facility. An error in the OC does not automatically grant you the right to sell a common area promised to other buyers.
• Examine the Sale Deeds: Check the language of all registered sale deeds. If you have already conveyed an “undivided share” in the stilt floor to a buyer, you cannot legally sell a specific part of that stilt floor to another person without the consent of the first buyer.
• Attempt Negotiation: Before the matter escalates, try to negotiate a settlement with the aggrieved buyer(s). This could involve offering compensation or providing an alternative facility. Legal battles can be costly and damage your reputation.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

If you are the victim

As the aggrieved homebuyer, you have several legal avenues available.

• Send a Legal Notice: The first formal step is to have your lawyer send a detailed legal notice to the builder. The notice should state the facts, highlight the breach of the agreement and RERA provisions, and demand that the builder cease the illegal sale and restore the room to its common status.
• File a Complaint with RERA: The Real Estate Regulatory Authority is the most effective forum for such disputes. You can file a complaint against the builder for violating the terms of the agreement and the provisions of RERA. RERA has the power to direct the builder to comply with the obligations and can also impose penalties.
• File a Civil Suit: You can file a suit in a civil court seeking a declaration that the common room is part of the common areas and a permanent injunction to restrain the builder and the new buyer from using it exclusively.
• File a Police Complaint: If you have strong evidence that the builder acted with fraudulent intent from the very beginning, you can file a complaint with the police for cheating under Section 318 of the BNS.
• Consult with Lawyer: The very basic and important step to start is talk to Lawyer / advocate. You should not hesitate in paying his consultation fee i.e. might be in range of Rs. 10,000 to 50,000 depends case to case. He is helping you in this situation of come out. He is expert in the domain and can help you explain the procedure which you might have never explored. A good lawyer can get the issues resolved much faster than you think.

How the police behave in such cases

Initially, the police may view such a matter as a civil dispute and might be hesitant to register a First Information Report (FIR). They often advise the parties to approach the civil court or RERA, as property disputes are primarily seen as civil in nature. However, if your complaint is supported by strong evidence suggesting a pre-meditated plan to defraud (for instance, showing the common room in brochures but having a different sanctioned plan), the police may be persuaded to register an FIR for cheating under Section 318 of the BNS. The investigation would then involve examining documents, recording statements, and verifying the builder’s claims.

FAQs people normally have

Can a builder sell a common area after the sale deed is registered?

No. Once the sale deed is registered and it mentions an undivided share in the common areas, the builder loses the right to sell any part of that common area. The ownership is transferred to the buyers collectively.

Does an Occupation Certificate (OC) override a registered sale deed?

No. An OC is a document issued by the local authority certifying that the building is constructed in compliance with the approved plans and is fit for occupation. It does not create or extinguish property ownership rights. A registered sale deed is a superior document for determining ownership.

What if the builder claims it was a mistake in the sale deed?

A registered document like a sale deed cannot be unilaterally declared a “mistake.” It would require a formal process of “rectification” under the Specific Relief Act, 1963, which would need the consent of all parties involved or a court order. The builder cannot simply ignore its contents.

What evidence is required?

To build a strong case, you will need the following evidence:

• Your registered Sale Deed, clearly mentioning the undivided share in the stilt/common areas.
• The Builder-Buyer Agreement.
• Marketing materials like brochures or pamphlets that showed the room as a common facility.
• The sanctioned building plan, which you can obtain through an RTI application from the municipal authority.
• The Occupation Certificate (OC).
• Any written correspondence (emails, letters) with the builder regarding the property and its amenities.
• Photographs or videos of the common room in question.

How long will the investigation take?

The timeline varies depending on the legal path you choose:

• RERA Complaint: RERA is designed for speedy disposal of cases, and a resolution can often be expected within 60-90 days.
• Civil Suit: A civil case for injunction and declaration can be a lengthy process, potentially taking several years to reach a final verdict due to procedural delays and appeals.
• Police Investigation: If an FIR is registered, the investigation timeline under the Bharatiya Nagarik Suraksha Sanhita, 2023 (BNSS) can vary from a few months to over a year, depending on the complexity of the fraud and the evidence involved.

Advocate Sudhir Rao, Supreme Court of India