Facing parking space manipulation by the builder? MahaRERA empowers home buyers against the defaulting promoters

A homebuyer is likely to feel deceived if they paid for a flat with a parking space of an appropriate size and, after allotment of the flat, found that the space is not large enough for their car. This issue of inadequate parking space could be due to the homebuyer not conducting proper due diligence or communicating their requirements inaccurately, or it could be that the developer fraudulently provided a parking space that is smaller than what was agreed upon.

Whatever the reason, MahaRERA through its order dated April 29, 2024, has now fixed this issue. The order mandated that specific information about the parking space including its dimensions should be mentioned not only in the allotment letter but also in the sale agreement.

MahaRERA mandated promoters to make these changes to avoid parking disputes

MahaRERA asked for some changes to be mandatorily implemented by promoters. These are:

• Specific parking space related information: The number, type and size as well as the place where the parking is booked/ allotted should be mentioned in the allotment letter and the sale agreement. Further, the parking layout plan approved by the planning authority showing the above-mentioned details (type, size, number, etc) should be annexed to the allotment letter/agreement for sale.
• Definition of size: The word 'size' of parking space has been defined to clarify any ambiguity. The circular said the word 'size' means:

1. Length*breadth for open parking areas for each vehicle to be parked,
2. Length*breadth*vertical clearance for garages, covered parking spaces provided at basement, podium, stilts and mechanised parking arrangement for each vehicle to be parked.

As per Jinal Mehta, Partner, Cyril Amarchand Mangaldas, shares a case study where a homebuyer was allotted smaller car parking than the area agreed upon in the Agreement for Sale.

"One such instance was addressed by the Maharashtra Real Estate Regulatory Authority (MahaRERA), Mumbai in Nilesh Patil v Naiknavare Developers Pvt Ltd, where the homebuyer was allotted an area less than the area promised in the Agreement for Sale and the Tribunal had ordered (i) to verify the size of the car parking as per the approved plans and (ii) directed the builder to allot car parking space as per the Agreement for Sale," she said.

What is the standard parking size that promoters must adhere to?

As per Kunal Sharma, Partner, Singhania & Co, a law firm, "Development Control and Promotion Regulations (DCP) govern the development and construction aspects of a building- both residential and commercial."

According to Sharma, as per Regulation 44(1)(ii) of the DCP Regulation, the standard dimensions for parking space shall be as follows:

Source: Kunal Sharma, Partner, Singhania & Co, m - meter, sq. m - square meter

The above-mentioned dimensions are the minimum threshold for parking space.

How do home buyers stand to benefit from implementation of this order?

As per the MahaRERA order, several home buyers complained of 'no space for exit from the vehicle', 'vehicle door cannot be opened for exit', 'manoeuvring space not adequate', 'beam of the building obstructs parking of vehicle', etc. Hence, the said order was passed to solve this issue.

"The order further mandates that these clauses pertaining to car parking shall be 'non-negotiable clauses' and non-compliance of the same including modification of the standard clause will result in the Agreement for Sale being considered void ab initio (invalid) and not binding upon the flat buyers," says Mehta from Cyril Amarchand Mangaldas.

As per Sharma, these are the focus areas which can now be possibly solved due to this order:

• Avoidance of disputes: The mandatory inclusion of the sample clause as outlined in the annexure of the MahaRERA order in the Agreement to Sale and allotment letter will help protect the interest of Allottees and minimise disputes between Promoters and Allottees concerning parking allocation and associated costs.
• Awareness: Earlier there was scope for inadequate understanding regarding minimum parking space thresholds which can now be expected to be reduced.
• Promoter's accountability: In some instances, the promoter may be incentivised to create additional saleable parking spaces by reducing the size of existing ones, aiming to generate higher profits. With this order, MahaRERA aimed to put a stop to this by making the car parking clauses as 'non-negotiable' clauses.

Experts say that homebuyer's rights are now protected due to this order by MahaRERA. "In the present order, MahaRERA has taken a crucial step of modifying the model agreement between the developer and the homebuyer which will enhance the rights of the homebuyer. The homebuyer will now be aware of the exact specifications of the car parking space to which he is entitled and will be in a position to identify and initiate prompt legal action against the developer in case of any deviation at the time of possession," says Subham Chatterjee, principal associate, ALMT Legal.

How will homebuyers with mechanised car parking systems in flats benefit from this new rule?

Mechanised or automated parking systems are available in very high-end flats as they are a premium feature.

Experts say that in flats where mechanised parking facilities are available, there was an issue as the promoters included the structural components of the mechanised parking while calculating the parking space. However, this process ultimately reduced the usable parking space.

As per Sharma, "Even if the structural component of the mechanical parking system is included within the size of the parking space, the size of the parking space cannot be reduced beyond the minimum threshold."

Sharma says this is because of DCP's regulation 2 (91) and 44 (1). Regulation 2(91) says that a parking space is inclusive of 'area provided by mechanical means sufficient to park vehicles'. Regulation 44(1) outlines that the structural component of a mechanical parking system be considered part of the parking space. "Hence the promoter must ensure that the designated parking space meets the minimum size threshold outlined in regulation," he says.

"If the entire parking is proposed by mechanical/automatic means then in case of Residential Buildings, additional parking to the extent of 10% of the required parking space be allowed free of Floor Space Index (FSI) as vehicle holding area," says Sharma.

If you divide the total covered area on all floors by the plot area, you will get the Floor Space Index (FSI).