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

Mr. Rohan Mehra recently decided to purchase a new apartment in an under-construction building named “Orchid Towers” in the city of Navpur. He is about to sign the Agreement for Sale and has several important questions regarding its contents. He is specifically concerned about whether the agreement must detail the allotted car parking number, the exact layout of the flat, and its precise area. He is also keen to understand if these inclusions are mandatory under the Real Estate (Regulation and Development) Act, 2016 (RERA). Furthermore, Mr. Mehra is worried about the future, wondering if the housing society, once formed, could alter the parking allotment made by the builder and how he can legally safeguard his rights within the agreement itself. This is a common scenario faced by many homebuyers who invest their life savings into properties that are yet to be built.

Advice in such cases

Navigating the complexities of a real estate transaction, especially with an under-construction property, requires diligence and caution. Here is some crucial advice:

• Scrutinize the Agreement for Sale: This is the most critical document. Ensure it is the model agreement prescribed by your state’s RERA authority. Pay close attention to clauses related to the apartment’s specifications, carpet area, possession date, payment schedule, and amenities promised.
• Verify RERA Compliance: Check the project’s registration number on the state RERA website. The details uploaded by the builder, including layouts and project timelines, should match what is being promised to you.
• Demand Clarity on Parking: The Agreement for Sale should ideally specify the nature of the parking (e.g., covered, open, stilt) and its location or number. Ambiguity can lead to disputes later. Ensure it is clearly defined as part of the sale consideration.
• Written Communication is Key: Do not rely on verbal promises from the sales team or the builder. Any commitment, change, or clarification should be documented in writing, preferably via email or a formal letter.
• 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

The legal framework governing such transactions primarily includes:

• The Real Estate (Regulation and Development) Act, 2016 (RERA): Section 11 outlines the functions and duties of the promoter (builder), which includes providing a detailed Agreement for Sale. The model agreement under RERA rules typically mandates the inclusion of details about the flat, garage/parking, and common areas.
• The Indian Contract Act, 1872: This act governs the fundamental principles of the agreement, ensuring it is a valid and enforceable contract.
• State-specific Apartment Ownership Acts: Laws like “The Navpur Apartment Ownership Act” define the rights and responsibilities of apartment owners and the functioning of the society of apartment owners. These acts clarify what constitutes common areas versus individual property.
• The Registration Act, 1908: This Act mandates that an Agreement for Sale for an immovable property must be registered to be legally valid and enforceable.

If you are the complainant

If you are the homebuyer and the builder is not providing a clear or RERA-compliant agreement, here are the steps to take:

• Insist on a Compliant Agreement: Politely but firmly insist that the builder provides an Agreement for Sale that is in line with the RERA model form and includes all necessary details like carpet area, parking specifics, and approved layouts.
• Issue a Formal Notice: If the builder refuses to cooperate or includes ambiguous clauses, it is advisable to have a lawyer send a formal written communication or a legal notice detailing your requirements and citing the relevant RERA provisions.
• File a Complaint with RERA: You have the right to file a complaint with your state’s RERA authority against the builder for non-compliance. RERA is empowered to direct the builder to fulfill their obligations.
• 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

If you have already signed an agreement and are now facing issues, or if the builder is deviating from the agreed terms, you are a victim of a breach of contract. Here’s what to do:

• Gather All Documentation: Collect all relevant documents, including the registered Agreement for Sale, payment receipts, brochures, email correspondence, and any other written promises from the builder.
• Address the Builder Directly: First, send a formal written complaint to the builder, clearly stating the violation (e.g., changing the layout, not providing the promised parking) and demanding immediate rectification as per the agreement.
• Approach a Legal Forum: If the builder does not resolve the issue, you can file a complaint before the RERA authority for violation of the Act or approach the Consumer Disputes Redressal Commission for deficiency in service.
• 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

Disputes arising from an Agreement for Sale are primarily civil and contractual in nature. Therefore, the police have a very limited role. If you approach a police station, they will likely advise you that it is a civil matter and direct you to approach the appropriate civil court or a specialized tribunal like RERA or the Consumer Commission. The police will only intervene if there is an element of a criminal offense, such as cheating, fraud, or criminal intimidation as defined under the Bharatiya Nyaya Sanhita, 2023. For example, if a builder sold the same flat to multiple buyers, it would constitute a criminal offense. However, for disputes regarding contract terms, layout changes, or parking allotment, legal recourse lies with civil and regulatory bodies, not the police.

FAQs people normally have

Is it mandatory under RERA for the Agreement for Sale to have the allotted parking number and layout?
Yes, the model Agreement for Sale prescribed under most state RERA rules mandates the promoter to provide specific details of the property being sold. This includes the carpet area of the apartment and specifics of any exclusive garage or parking space. The approved layout plans must also be annexed to the agreement.

Once a housing society is formed, can it amend the parking allotment made by the builder?
If the parking space is sold to you and clearly mentioned in your registered Agreement for Sale or Sale Deed, it becomes your private property. The housing society’s jurisdiction is generally over the common areas and facilities. The society cannot arbitrarily re-allot or take away a parking spot that has been legally sold to you. Any such attempt can be challenged in court.

How can I prevent future disputes over parking in the agreement itself?
Ensure the agreement clearly states that the specific parking spot (with number and location, if possible) is being sold to you as an adjunct to your flat for a certain consideration. It should not be vaguely termed as a “right to park.” A clear clause in a registered deed provides the strongest legal protection.

What evidence is required?

To pursue a legal claim against a builder, the following evidence is crucial:

• The registered Agreement for Sale.
• All receipts and proof of payments made to the builder.
• The project brochure, advertisements, and any other promotional material.
• All written correspondence with the builder, including emails, letters, and messages.
• A copy of the approved sanction plans and the RERA project registration details.
• Photographs or videos, if they can help substantiate your claim (e.g., showing deviation from promised quality or layout).

How long will the investigation take?

This is not a police investigation but a legal proceeding. The duration depends on the forum you approach:

• RERA: The Act mandates that RERA authorities should endeavor to dispose of complaints within sixty days from the date of filing. However, this timeline can be extended depending on the case’s complexity and the authority’s workload.
• Consumer Commission: Proceedings in consumer forums can take anywhere from several months to a few years, depending on the hierarchy of the commission (District, State, or National) and the specifics of the case.

Advocate Sudhir Rao, Supreme Court of India