Almost every dispute about parking charges is really a dispute about a definition, and the definition is in the statute rather than in the builder's price list.
Read those two together and the answer follows. A roofed, three-walled enclosure is a garage and the Act treats it as saleable. Section 4(2)(i) requires the promoter, when applying for registration, to state the number and areas of garages for sale in the project, and Section 11(1)(c) requires him to keep the list of garages booked updated quarterly on the Authority's website. The Act would not require those disclosures about something that could never be sold. Anything short of that description is an open parking area, which is a common area, and a common area is not the promoter's to sell.
What happens to a common area
Section 17(1) requires the promoter to execute a registered conveyance in favour of the allottee along with the undivided proportionate title in the common areas to the association of allottees. So the open parking does not stay with the promoter and does not become the private property of whoever paid the most. It vests, in undivided shares, in the owners collectively. Section 19(3) gives the association the right to claim possession of the common areas.
The Supreme Court reached the same conclusion before the 2016 Act existed, on the Maharashtra flats legislation. In Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd., decided on 31 August 2010, it held that a stilt or open parking space is neither a flat nor a garage, that it forms part of the common areas, and that the promoter has no right to sell it. The only right the promoter retains, the Court said, is to charge the cost of it proportionately from each purchaser. Undertakings that individual purchasers had signed consenting to the sale of those spaces were held not to bind them or the society.
The Karnataka layer
Where the building is under the Karnataka Apartment Ownership Act, 1972, Section 3(f)(3) lists the basements, cellars, yards, gardens, parking areas and storage spaces among the common areas and facilities. Section 6(2) says each owner's percentage of undivided interest in those areas has permanent character and cannot be altered without the consent of all the owners in an amended Declaration duly executed and registered. Section 6(3) says the common areas remain undivided and no owner may sue for partition of any part of them, and that any covenant to the contrary is null and void. A clause in a sale agreement purporting to hand a numbered open bay to one buyer alone is exactly such a covenant.
| What it is | Test | Can it carry a separate price |
|---|---|---|
| Garage | Within the project, a roof and walls on three sides, Section 2(y) | Yes, and it must be disclosed under Section 4(2)(i) and tracked under Section 11(1)(c) |
| Stilt or podium bay with no walls | Unenclosed, so outside Section 2(y) | No. It is a common area under Section 2(n)(iii) |
| Open surface parking | Named in Section 2(n)(iii) | No |
| Parking mandated by the sanctioned plan | Provided to satisfy the building bye-laws | No. It cannot be sold away from the building whose sanction depends on it |
| Cost recovery spread over all buyers | Proportionate to carpet area | Yes. That is the route the Supreme Court left open |
There is a related pricing point worth separating out. Section 2(k) defines carpet area as the net usable floor area of the apartment, excluding external walls, service shafts, exclusive balcony or verandah area and exclusive open terrace area, and including the internal partition walls. Common areas are outside that figure by definition, which is why a promoter cannot both build the cost of the parking into the price per square foot of carpet area and then charge for the same space again as a separate saleable item.
What to do about it
- Read the sanctioned plan and see whether the space is enclosed on three sides or is an open bay
- Check the promoter's registration entry on the Authority's website for the declared number and area of garages
- Check whether the same space is being counted twice, once as a common area in the maintenance calculation and once as a sale
- Confirm your carpet area figure, which under Section 2(k) is the net usable floor area of the apartment and excludes common areas
- Keep the receipt and the demand letter, since the description on the promoter's own document is what he will find hardest to contradict
- Raise it before the conveyance is registered, because leverage after registration is far weaker
A complaint lies under Section 31 of the 2016 Act to the Authority, and the association of allottees or a registered voluntary consumer association can bring it in its own name, which matters because this is a building level grievance rather than a personal one. Section 61 exposes a promoter who contravenes the Act to a penalty extending up to five per cent of the estimated project cost. Where the money has already been paid and what you want is a refund with compensation, the consumer route runs in parallel, and Section 88 confirms that the 2016 Act is in addition to and not in derogation of other laws. The related question of what the association may later do with those same spaces is dealt with in the common area conversion answer, and the mechanics of a complaint are in our guide to filing a RERA complaint.