Differential parking fee from members and owners of flats. I live in a society where the monthly cost for parking a car is different for different flat owners. The distinction in parking fee is made on the basis of ‘whether the owner had purchased the parking spot from the builder’. A bunch of people living in the building bought flats directly from the builder and also purchased a parking spot. Now, when we bought the house a few years back, the previous owner didn’t have a parking spot. Therefore, they are charging a premium parking rate which is 2500 per month as opposed to the others which are less than 150 per month. Interestingly there is no stilt/covered/enclosed parking spot and all are in the ‘common area’ itself. Can the society through their AGM/GM take such decisions and deploy differential pricing? If not, what precedence/by-law can be used to argue this point.
Asked from: Maharashtra
According to Section 3 of the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management, and transfer) Act, 1963, when a person purchases a flat, he also pays for the common area and facilities in proportion to the carpet area of his flat.
Therefore, it is incorrect to state that the housing society is the sole owner of the common area. Instead, all flat owners have joint ownership over the common area. The society assumes the responsibility of maintaining the common area in accordance with the society’s bylaws for the welfare of its members.
In Nahalchand Laloochand (P) Ltd. v. Panchali Coop. Housing Society Ltd., (2010) 9 SCC 536 the supreme court has held that “in our discussion above that open to the sky parking area or stilted portion usable as parking space is not a “garage” within the meaning of Section 2(a-1) of the Maharashtra Ownership Flats Act and, therefore, not sellable independently as a flat or along with a flat.”
Hence, it was impossible for the builder/promoter to sell open to the sky area as a parking spot. That kind of sale is illegal because it is violating the provisions of Maharashtra Ownership Flats Act.
Your society does not have a covered/stilted/enclosed parking area. The society provides facilities to flat owners, who do not have exclusive parking spots, to park their vehicles in the common area.
However, it is important to note that designating this facility as ‘premium parking’ is not legally permissible. The mentioned practice of charging for the facility as ‘premium parking’ is deemed illegal. According to the judgment in the case of Nahalchand Laloochand (P) Ltd. v. Panchali Coop. Housing Society Ltd., (2010) 9 SCC 536, the society has the sole right to charge the maintenance cost for the common area in proportion to the carpet area of each flat purchased by the owners.
Therefore, the society should not engage in the practice of charging extra fees for parking in the common area by labelling it as ‘premium parking’ as it contradicts the legal provisions established in the mentioned court case.
Parking fee
The society’s bylaws should outline a transparent methodology for determining the fee for open parking. This methodology may consider factors such as the size of the parking space, maintenance costs, administrative expenses, and other relevant factors.
Typically, the fee is collected on a monthly or annual basis and is included as part of the overall maintenance charges imposed by the society. It is crucial for the society to have a fair and transparent system for determining and collecting the fee for open parking.
The details regarding the fee structure and collection should be clearly specified in the society’s bylaws, and any changes to the fee should be approved as per the procedures outlined in the bylaws.
The exorbitantly high fees for premium parking in your society, which seem to be an act of extortion, raise concerns. It is essential to ensure that the fees charged are reasonable, justifiable, and free from any discriminatory practices.
Moreover, it is important to note that the builder does not have the right to sell common areas of the society as parking spots. Therefore, any differentiation between purchased/owned parking spots and other parking spots without a legal basis is considered illegal.
The concept of premium parking is invalid as the builder had no authority to sell open areas as parking spaces. In the prevailing scenario, the parking fee should be the same for all flat owners. The existing classification between owned and unowned parking spots lacks a legal basis and is therefore illegal.
In light of these circumstances, it is recommended that you lodge a complaint with the appropriate authority, such as the society’s registrar, against the illegal fee collection practices carried out by the housing society. These practices are in contravention of the society’s bylaws and require proper investigation and action.
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