Common Area – Common Ownership – Common Questions

In the realm of real estate, numerous terms are associated with residential complexes. One such term that frequently approaches is 'common area.' Simply put, a common area refers to a shared space within a residential or commercial complex that is collectively funded by all its residents. In this context, every  owner in the Project is considered a co-owner of these communal spaces, and the ownership is distributed equally among all the residents.

If a Developer /Promoter offers you the super-built area of a house, the entire area, including the common areas, is included in it. As per section  2(n) of the  RERA Act, 2016, “Common Area” includes:

• The entire land for the real estate project, or if the project is developed in phases and registration under the RERA is sought for a phase, the entire land for that particular phase.
• Staircases, lift, elevators, elevator lobbies, fire escapes, and common entrances and exits of buildings.
• Common terraces and basements, parks, play areas, open parking areas, and common storage spaces.
• The premises for lodging of persons who are employed for the management of the property, including accommodation for watchmen and ward staff, or for the lodging of community service personnel.
• All community and commercial facilities as provided in the real estate project.
• Installations of central services such as electricity, gas, water and sanitation, air-conditioning and incineration, and systems for water conservation and renewable energy.
• Water tanks, pumps, motors, compressors, fans, ducts, and all apparatus connected with installations for common use.
• Other portions of the project necessary or convenient for its maintenance, safety, etc. and in common use.

Not only RERA but Apartment Act also have some guidelines for common area:

• Before the association of allotters takes over, the developer is responsible for preserving common areas.
• The responsibility for the common area maintenance falls to all members of society.
• The landlord is liable for the maintenance of the common areas in the case of commercial property.

When it comes to an area that is shared by all there are various questions attached to it. We offers you answer to all your queries as follow:

1. Who’s Responsible for the Maintenance of the Common Area?

   All allottees are equally accountable for open areas and their maintenance. The Real Estate Act (RERA) specifies that it should be the responsibility of every allottee to make payments to maintain the property and the premises. All citizens collect a stipulated fee and this goes towards operational expenses undertaken to protect the community areas.

2. Can It Be Possible to Inherit and Pass Common Area?

   No, It is not possible to inherit or transfer common areas and facilities by sale, mortgage, lease, gift, or swap, along with an undivided interest in common areas to any third party. The reference may be made to the decision of this Court in case of Harikrushnadas Chhaganlal, Nanalal & Ishwardas Mohanlal Seva Samaj Trust v. Vinodchandra G. Vaghela reported in 2010 (2) GLR 1820 wherein at paras 4, 5 and 6 it was observed as under:

   It is an admitted fact that the society has sold the land of the common plot to the petitioner. It can hardly be disputed that the land of the common plot in any residential society is meant for common use and common purposes of all members of the society, and all members of the society, so far as common plot and common facilities and common area are concerned, they are holding joint and common interest in such portion. It is not the case of the respondent society that the land has been permitted to be used for creating of any common facilities for the members of the society.

3. If you are not using common areas and services, do you pay maintenance charges?

   According to the Apartment act, ‘No apartment owners may exempt themselves from liability for their contribution towards the common expenses by waiver of the use or enjoyment of any of the common areas and facilities or by the abandonment of their apartment’ In simple words, ‘yes’ it is mandatory for all to pay maintenance charges.

4. Common Area to be utilized by all members.

   In the Gujarat RERA  judgement for the case law of Members of Nilkanth Villa Vs. Pari Infra, it was enacted that :

   A Common area between two concerned Projects was separated by a compound wall, and thus the common area was divided , and was the cause of complaint between the members of both the Projects,  but later on through the Order of the Hon’ble Authority , the common compound wall was ordered to be demolished and the common area was allowed to be used by both the Project members.

5. How Can Common Areas Be Identified?

   Information on the property on which the building was constructed and the common areas and amenities must be included in the sale documents of the apartment and its registration papers. It should also note whether the property is freehold property or leasehold and whether the lease period is a leasehold property. It should also include the percentage of an undivided interest in the common areas and services relating to the apartment. It must also explain the restricted common areas and services.

6. Can Members Parking can be sold ?

   Open Parking cannot be sold to the any particular allottee, as the open  parking is considered as the common area as per the definition of “Common area”as per RERA Act. But covered parking is not considered as a part of the common area and thus it  can be sold..

   Maharashtra  Real Estate Regulatory Authority in the Complaint No. CC006000000089761 –  in the matter of Mr. Deepesh S Singh  Vs M/s. Neelkanth Constructions  , Ordered that “With regard to the car parking, the MahaRERA directs that the respondent is entitled to sell only covered car parking and no cash money be demanded from the allottees.”

7. Is It Possible to Sell Common Roof Rights Through a Developer?

   Giving or selling exclusive rights to the terrace or rooftop

We trust that this article has addressed your inquiries regarding the common area. Should you require additional information about real estate, feel free to visit us for further assistance.

Author – Adv. Lokesh Shah

Mobile Number – 8000647068

Email id – lokesh@gujreraexperts.com