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Housing Society & Parking Issues

Owing to a dearth of parking spaces, many housing complexes in metropolitan cities like Mumbai, often faces shortages of shortage of parking slots as compared to the demand and thus restricts tenants from parking their vehicles in the premises. This happens in many old premises as old DCR rules did not envisage the spurt in demand for parking slots. The surge happened as resident of housing society became wealthy and has bought Car and sometimes more than 1 car. To overcome this Housing Society has stopped allotting Parking slots to tenants and shops/Offices located in the Ground & 1st floor of many of these buildings. Car parking management is one of the most important aspects of housing society management by Managing Committee.

One more issue has cropped up as many owners who had paid for their favourite parking slot in the complex are suddenly facing the issue of their slot being shifted by current Managing Committee and this raises question whether Builder had right to “Sell” parking slot at a consideration after Supreme Court ruled that they can’t do this. What happens to transactions already happened?

Different types of parking

As per Lay-Out-Plan (LOP) as sanctioned by BMC under the Development Control rules (DC rules) and under the Fire Act & rules, following types of Parking are there:

Ø Open Parking – These are uncovered parking spots within the apartment complex premises.

Ø Stilt Parking – These are partially covered parking spots on the ground floor of the apartment complex.

Ø Garage Parking – Fully covered complete parking structures

We will analyse the issue and suggest solutions as under.

DCR Rules

Parking space is not counted in F.S.I calculation and is the property of the society. The common parking area / stilt are the property of the society as per the said High Court order and also as per the various provisions of DCR & MOFA Act. But, be advised that this common parking area does not include the parking space that is reserved for each flat as per the provisions of DCR. Hence, this common parking space is the property of the society and the society can allot it on ‘First Come First Serve” basis or in any other manner in accordance to decisions of all the members, within the frame work of the Model Bye-Laws & MCS Act, 1960.

Parking space limitation (numbers) is decided by the Lay-Out-Plan (LOP) as sanctioned by the civic body (like BMC in Mumbai) and under the Development Control rules (DC rules) and under the Fire Act & rules. The MC is bound not to violate the LOP & DC Rules & Fire Act & Rules, regarding the common spaces to be maintained.

As per the Development Control Regulations for Greater Mumbai 1991, one parking space for every 80 sq. mtr of the floor area and one parking space for every additional 160 sq. mtr of area are required to be provided.

The Ministry of Housing and Urban Affairs’ model by-laws allow 2 ECS (Equivalent Car Space) per 100 sq. meter of floor area in residential premises. This can be translated to 1 space per 3BHK and 2 per 4BHK. According to Apartment acts, you are neither allowed to cover or repurpose parking spaces nor shall a member have any right to sell or transfer parking slots allotted by the society. A fine may levied by the society for any violation of parking laws. A builder has to provide a certain number of parking spaces base on the number of units of houses. According to the National Building Code, one car parking space must not be less than 13.75 sq. meter. For a 2-wheeler, it must not be less than 1.25 sq. meter. As per a mandate from the Mumbai High Court, the builder is not allowed to sell parking spaces outside the FSI consumed. This has been confirmed by the Supreme Court of India too.

Size of Parking Space

The minimum sizes of parking spaces to be provided shall be as shown below:


Type of Vehicle Minimum size/ Area of parking space

a) Motor vehicle 2.5 m x 5.5 m

b) Scooter, Motor-cycle 3 sq. m (Least dimension shall be minimum 1.2 m)

c) Bicycle 1.4 sq. m

Notes:

1. In the case of parking spaces for motor vehicles, up to 50 per cent of the prescribed space may be of the size of 2.3 m x 4.5 m.

2. Marking of Parking Spaces-Parking spaces shall be paved and clearly marked for different types of vehicles.

3. Maneuvering and other ancillary spaces- Off-street parking space must have adequate vehicular access to a street, and the area shall be exclusive of drives, aisles and such other provisions required for adequate maneuvering of vehicles.

4. Ramps for Basement Parking-Ramps for parking in basements shall conform to the requirements of sub-regulations (18) of Regulation 37.

5. Two wheeled motor cycle parking space one for every two residential tenements may be provided. For other occupancies, two wheeled motor cycle parking space equal to the required number of four wheeled parking spaces may be provided. If such parking for two wheeled motor cycle is proposed, the same may be distinctly shown in the plan.


Housing Society owns Parking Space: Housing Society “Solely” owns the common spaces (Stilt, Open or whatever) and the members do not own the common spaces.

Role of Housing Society in Parking arrangement

Allotment of Parking space is an “Administrative function” and the Managing Committee (MC) through General Body is empowered to allot the parking space to its own registered members. Registered members include family members and associate members. MC should collect documents from the proposed allottee as regards ownership of the vehicle to be parked and ensure that it is owned by member or their family member or company (they work for or own it). MC should maintain Parking Register and should obtain undertaking from allottee as regards its ownership and that parking slot would be reviewed by MC annually and they could be allotted another slot as per set guidelines as part of ‘Parking Policy” adopted at AGM. This policy can be reviewed and updated at AGM as part of feedbacks that they have received. In case, the Flat is owned by Limited Company, then Housing Society should require authority letter from the Company about allotment of the flat to the person and the letter should specify his relationship with the Company as Employee, Director and Consultant etc. A member who owns a car or is given one by his employer, firm or company is allotted parking space. As per Bye-law No. 81, a member may become eligible for second/third stilt/parking space remaining un-allotted for want of applicants for the same. As per Bye-law No. 82, in case the numbers of vehicles of eligible members are in excess of the available parking space/stilts, the managing committee shall allot such parking space/stilts by “lot” on a yearly basis.


Tenants are Nominal Members and have no rights of a regular member, which includes having no rights of parking in the CHS premises. However, at the discretion of the MC, parking can be an extended as humanitarian facility to the nominal members based on availability.


High Court & SC Judgment on sell of Parking Space by Builder

Parking space is not counted in F.S.I calculation and is the property of the society. Hence, by the same reason and also as per Bombay High Court in Nahalchand Laloochand Pvt. Ltd. Vs. Panchali Co-Operative Housing Society Limited, it was held that the Builder is not entitled to sell Parking Space outside the FSI consumed which was further confirmed by Supreme Court. Builder has no right to sell any car parking space. The reason is when a flat purchaser is purchasing a flat; he is paying certain amount for the common areas and amenities appurtenant to the premises and parking area is a common area and every member is a pro-rata owner of common space including Parking space.

The High Court says that building and premises belong to the societies. The builder can’t sell open spaces or space within stilts for parking. Even if the residents have given an undertaking giving up their claim to open spaces, it cannot be held as binding. The area within stilts, even if enclosed, will be considered as open space as the builder is not paying any separate property tax over it.

RERA only spoke of covered parking space but the rules did not include open parking. Hence, a developer was fully entitled to sell covered parking but open parking couldn’t be sold as per interpretation of some experts.

SC’s observation: "The promoter has no right to sell any portion of such building which is not flat within the meaning of Section 2(a-1) and the entire land and building has to be conveyed to the organisation (Society). The only right remains with the promoter is to sell unsold flats. The cost of parking for residential and commercial units is often passed on to the occupants indirectly through the rent or purchase price ("bundled") rather than directly through a separate charge. Does it mean Supreme Court has ruled out only the option of buying and selling parking separately as real estate? Court has forbidden unbundling altogether?

Allotting Parking spaces/slots in Housing Society

Depending on the number of lawful Parking spaces (under BMC rules & LoP) and number of members’ vehicles, Parking space may be “tentatively” allotted on yearly rotation usage system, which depends on cyclic “First Apply First Allotment” system taking in to account factors like size of car, self-driven by senior citizens, chauffer driven vehicles etc. More than one parking space should not be allotted to a member if other members parking requirements are not still fulfilled.

Policy of allotment of parking spaces

The Policy of allotment of parking spaces as per the MOFA is covered under section 78 of the Act. As per the MOFA guidelines, the allotment of parking space shall be made by the managing committee on the basis of ‘first come first served’ for all unsold and available parking spaces.

Applications for Allotment

All applications for allotment of stilts or parking spaces come under section 83 of MOFA. Any member seeking a parking space or stilt must make a formal application to the society secretary. All applications received must be processed as per the bye law laid down under the Bye laws no 65.

Tenant’s need for parking space in Housing Society

In metro cities, many people who invested in properties looking for rental income did not think that parking space could be a major issue between the owner and the tenant. In a metro city like Mumbai, one of the most important amenities that tenants look for is adequate parking. Parking spaces have become such an important part of a rental property that it is one of the top frustrations and sources of conflict between landlords & housing society and tenants. This problem is particularly severe for tenants of middle-income group (MIG don’t feet in availability of parking for flat as they are below 100 sq. mtr. size) apartments, who often face difficulties in finding parking for their vehicles due to limited space and are forced to park their vehicles on the road. Development Control Rules, framed under the Maharashtra Regional and Town Planning (MRTP) Act, 1966, state that a tenant cannot be denied parking. A recent Supreme Court ruling also stated that a car parking space allotted to the owner, can be used by the tenant, as he has full rights over it. As per the co-operative societies act, only members can occupy and use parking space. In case of excess parking, the committee is free to allot the space to a resident on payment. The charge is to be fixed by the general body and is binding on the residents. A society should not and cannot discriminate, as the parking rules are governed by the Developmental Control Rules and Fire Acts and if the owner is eligible, then, the tenant should also get the benefit.

Guest parking Its a common occurrence that even though there’s space inside the building for guest parking, security guards, at the behest of MC or out of their own volition, instruct delivery personnel, guests and visitors to park their vehicles out on the streets. Sometimes such unnecessary measures lead to vandalism and theft of vehicles. A building has to keep at least 5% space for visitor parking as per BMC. MC should give strict instructions to guards regarding visitor parking rules.

Penalty or fine as regards parking violations

Penalty in a CHS is a “Fine” for violations of the CHS rules & conditions and Resolutions passed in the GB directing the MC to implement the GB directions applicable to them. There could be issues like Parking in someone’s slot or damaging the car parked in another slot while navigating parking or taking out the car or haphazard parking causing inconvenience to other members. Penalty amount may be fixed at the GB as part of “Parking Policy” and but levied to a member only after giving opportunity to the member to defend himself for the violation.

MC, after considering the violation of the member and after giving him hearing, may levy penalty at the rate fixed by the General Body at the AGM of the society but not more than Rs.1, 000 as per Bye Law No.166.

Parking Deposit

Parking space is a Common area and Deposit for Parking space cannot be collected, even if passed by the GB. MCS Rule 39 restricts rights of society to raise funds by collecting Parking Deposit.


What if the Builder/Developer has already sold Parking space/slot?

In many premium areas in Mumbai like South Mumbai, Bandra & Juhu, Parking slot cost Rs.25-50 lakhs, which is more than cost of normal car and many Builders/Developers have sold it.

Under Section 78 of MOF Act, the allotment of parking space/ slot shall be made by the Managing Committee on the basis of ‘First Come First Served’ for unsold and available parking spaces. In a judgment by the Maharashtra State Consumer Disputes Redressal Commission held that the Cooperative Housing Societies can redistribute parking spaces sold and allotted by the Developer after adopting a suitable bye-law. The Commission ruled that the allotment of parking space is a matter that has be decided by the Housing Society. The Commission discarded the Developer’s contention, reiterating the settled legal position that the Developer cannot sell or allot any parking space, which forms part of the common amenities of the Housing Society. Even Supreme Court has ruled that Developer cannot sell open spaces and stilt car peaking areas in the building which they have promoted. Law states that the builder has to provide certain number of parking places in the ratio to the number of flats in the building. However, the builder is not allowed to sell parking spaces outside the FSI consumed as per the decision of Bombay High Court, which has been confirmed by the Supreme Court.


Owner of Parking Space

The Apartment complex / Co-operative Society solely owns the parking space; the members do own the space and allotment of Parking space is a “Administrative function” and the Managing Committee as well as General Body are empowered to allot the parking space to its own registered members Parking area (Stilt, Open or whatever) is not covered under Floor Space Index (FSI) and hence is not saleable. The members DO NOT own these Parking spaces.


Use of Parking Slot to park Taxi or other commercial LMV like Tempo

MC has authority to allot car parking slots as per ‘Parking Policy” and bye laws adopted by society at its AGM. If AGM has decided against commercial exploitation of parking space as part of Parking Policy the members have to obey the rules. There are no existing case laws and AGM has to decide their parking policy considering the fact whether they should permit 3 Wheelers, Tempos, Taxis etc. to be parked in Parking areas taking into account decency, decorum & feelings of majority members at large.

Commercial use of Garage

MOFA rule has clearly laid out guidelines for parking space to be reserved for private vehicles only. The garage allotted for car parking cannot be used for commercial purpose except with the permission from the Bombay Municipal Corporation.

Use of Parking Spaces like Garages for Commercial purposes

Where any stilts have been built or where open space or Closed Garages in the society’s compound is available for the parking of cars or 2 wheelers, the society should allot the same in such a way that no inconvenience would be caused to any of the members of the society. It is the duty of the committee to observe that the space is used by the members for the purpose for which it is allotted to them. Entire parking space belongs to the society and the society will have the right of allotment of these spaces. A member has no “transferable” interest but only a “restricted” interest in the parking space allotted to him. The society has a right to take back the parking space from a member and a member cannot establish his permanent right once the space is allotted to him. Thus if any member has sold his Garage to someone or use it for Clinic, warehousing, Office, retail outlet, Coaching Class etc. then this may amount to “change of use” as per BMC rule. Fundamentally, Parking spaces like Closed Garages are to be used by the members for the purpose for which it is allotted to them and sanctioned by BMC as per LOP. In the Housing Society, common parking space is the property of the society and cannot be sold or misused for any other purposes. If this violation has happened then MC has to intimate BMC about this violation failing which they could be held responsible for turning blind eye to the violation and Registrar can disqualify MC Members for this lapse.

If, however. the owner of the flat who has been allotted the garage makes an application to the society requesting that he should be allowed to open a shop, or an office or a dispensary then the society may give thought to such an application and if the member secures permission from the Municipal Cooperation / local body (BMC) then the society may allow such garage to be used for business purposes.

But it should be remembered that by giving such permission if the ratable value of the society goes up, the additional amount which a society has to bear (in terms of higher Property Taxes on recurring basis) then the same can be recovered from the garage owner. A society can allot shares to garage owners and the garage owner may also participate in the discussion by attending the meetings. Not only that, he may also vote at AGM or at the special general meeting.


Use of Garage for parking more than one vehicle

A member has a right to park any number of cars in a closed garage. As such the society cannot recover higher charges from the member by writing to him that more than one car has been parked in his closed garage.

Parking rule as per MOFA MOFA allows residential housing societies to frame and lay their own rules and regulations related to the management of car parking within their premises. However, the basic obligation is to enquire about the details of the vehicle including the certified copy of the RC book along with the application form. For ease of verification and faster movement, housing societies can make stickers that can be stuck to the windscreen of the car.


The policy of allotment: Section 78 of MOFA covers the policy of allotment of the parking spaces and stilts. The allotment of the parking spaces and stilts, that are unsold and available, are done by the housing committee on the basis of ‘first come, first served’. The members don’t hold the right to transfer or sell the allotment done by the committee. Section 79 of the Act, lays further restriction on the usage of the parking spaces and stilts stating that no members are allowed to use parking spaces or stilts more than what he/she has purchased or is allotted by the committee.

Marking of parking spaces: Section 80 of MOFA states that any parking space available should be well-marked to avoid any chance of inconvenience and dispute. Members are required to abide by the allocated parking space number and its boundary. Further, it also reinstated that the boundary marked should be enough to easily park the vehicle and should be served by a driveway connecting to nearby streets or roads.


Eligibility of getting an allotment of parking space or stilt:

Section 81 of MOFA discusses at length about the eligibility of getting allotment of parking space(s) and/or stilt(s).

A member seeking allotment of parking area should own a motor vehicle, which precisely sums up that the allocated space should not be used in any format other than parking vehicles. One member is eligible for only one parking area either open parking space or stilt. However, in case there are non-allocated parking areas available, a second or third allocation can be made by the housing society committee, but on a year-to-year basis. However, in case a member who hasn’t been allocated even one parking unit, either open parking space or stilt, makes an application, such second, third allocations can be canceled.

Section 82 of MOFA states that in case a Housing Society has more number of eligible members than the available parking spaces or stilts, then the Management Committee shall allocate such parking areas by “lot” on a yearly basis.


Parking charges:

Section 84 talks about parking charges. All members, allocated with a parking space or stilt are required to pay an annual parking charge as per the amount decided by the general body meeting of the housing society.

Parking charges may be determined at the General Body of members at AGM, directing the MC to implement the “Parking Policy” and collect the same as part of the monthly bill from respective member. Please remember that Parking “charges” are not equivalent to Parking “penalty” for violations of Parking spaces & usages.

Parking charges may be from 100/- to 10,000/- per vehicle, per month as decided in AGM in terms of “Parking Policy” and this is applicable to registered members including his family members and associate members. Nominal member (Tenant) is not a registered member. Hence parking charges do not apply to him thus Parking space can be denied to Nominal members.

As per Bye-law No. 84, every member who has been allotted the stilt or the parking space shall be required to pay the parking charges at such rate as may be decided by the General Body of the society at AGM irrespective of whether he actually parks his motor vehicle or not. Where a member has been allotted more than one stilt/parking space, he shall pay parking charges in respect of every such stilt or parking space. The charges for parking space should be reasonable and not extraordinarily high. It should be remembered that a society has a right to hike these charges from time to time. Such an increase can be brought by passing the relevant resolution at the General Body Meeting.

As regards recovery of Parking Charges for parking his car in the compound from guest, please consider implications under MCS, BMC rules and liability under GST as Guest is not a member and hence not covered under “Mutuality Principle”.


Safety of Parked Vehicles

The MC is responsible for the upkeep & safety of the Parking spaces and for the safety of the member’s Parked vehicles with reasonable precautions. The member who parks his vehicle with the permission of the MC and pays Parking charges, can file Civil Cases, Criminal Cases and Consumer Court cases against the Housing Society, for any “Negligence & Deficiency” in parking facility, vehicle damages etc. The MC is liable to provide lights in Common area, Security services to the CHS common areas, Sweeper facility in the parking area, path-way repair & maintenance etc.

Car parking shed

Housing Society need the permission of local authorities like Municipal Corporation (BMC) to erect shed in common areas, if not already done by Builder as part of original lay out Plan. It is highly unlikely that permissible would be granted by BMC for erecting permanent shed for parking purposes.

Restrictions on Parking Areas

As per MOFA, no member can cover a parking stilt and it has to remain an open space. The open parking spaces are not included in the FSI calculations. Any alteration would require BMC permission.

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