Super built-up area: Loaded in favour of developers?


Legal experts point out that in the absence of regulation, each developer calculates the super built-up area, its purpose and usage, in his own way

In a consumer case filed with the district consumer forum of Noida, an aggrieved home buyer has demanded a refund of the amount collected towards additional loading over the carpet area paid to the builder. Her grouse is that after having paid for the super built-up area, the developer is denying her the privilege of using the common facilities in the project.

The developer of the project had promised open car parking spaces for visitors, in addition to the covered parking areas for residents. However, citing security issues, the facility management of the builder disallowed the entry to non-authorised cars, including vehicles deployed by the residents’ employers for pick-up and drop facility. “If I am not being allowed to use the facilities being created in the name of super built-up area, then the developer must refund the loading charges that are levied over and above the carpet area,” insists Deepti Kashyap, the home buyer.

Access to common facilities

This raises a fundamental question as to whether the developer can deny a home buyer the use of common facilities. While builders maintain a cautious silence over this query, industry bodies often dismiss it as a frivolous issue. Rohan Sharma, associate director – research and real estate intelligence services, JLL India, believes that apartment owners have the right to use common areas. However, different high courts in various states, have given varying opinions, in cases of conflict between home owners and developers regarding the use of common areas. While some decisions have been in favour of the home owners, others have favoured the developers, allowing them to use and dispose of it as they find fit.

“States now have their own acts that govern apartments. These clearly mention that common areas and facilities belong to the home owners and should be handed over to the residents’ welfare association (RWA) after its creation, to deal with such areas in an appropriate manner. The super area on which the buyer has bought the property, consists of a proportional share in the common area facilities,” explains Sharma.

Definition of ‘super area’

Lakhendra Singh, a consumer rights advocate, points out that there is an urgent need for legislation, to clearly define the term ‘super area’ and remove the superficiality around it. “If a developer knows that he can be penalised by the courts and even be made to refund the amount charged towards super built-up area, he will think ten times, before promising superficial amenities. He will also be conscious of meeting his promises,” says Singh.

In many property markets across India, developers collect the facility management fee upfront, for two or three years, before handing over the possession of the apartment. This happens despite the fact that many of the promised facilities, such as the clubhouse, gym or swimming pool, are unlikely to be ready till the time of possession. Regulations are also needed, to address the quantum of loading that can be allowed. There have been instances, where loading has been as high as 50% over the carpet area, even in affordable housing projects where the amenities are limited. Consequently, legal experts advise home buyers to hire professional help, before signing the builder-buyer agreement.

Home buyers meanwhile, continue to bear the brunt, of the huge gap between builders’ promises and delivery and the ambiguity over calculating a property’s value in the name of super built-up area.

(The writer is CEO, Track2Realty)

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