Is Basement Parking A Garage Or Basement? Developer Says Garage, NCDRC Says Not [Read Order]

The NCDRC has said basement parking, despite all security, does not qualify as a garage.

"A basement does not lose its character as such, merely on account of use to which it is put. Similarly, a parking area is an area meant for parking of the vehicles, wherever such areas may be located… The basement used for a parking the cars, in my opinion, does not qualify as a garage since an individual allottee cannot put his own lock and key on it and despite the security provided at the entrance of the basement and elsewhere in the building, it cannot be as safe as an individual garage which can be locked by its allottee," said Justice J K Jain.

Justice Jain said so while hearing a batch of complaints moved by homebuyers of DLF Universal Limited's project "DLF Capital Greens".

Besides ruing delay in the project, the buyers also objected to exclusion of facilities such as club house and basement parking from common areas.

The Developer stated that it is a three level basement parking, which affords full protection and shelter to the car not only from the top but also from the three sides and is equipped with security cameras and manned by security personnel inside the basement, outside the basement and on the gates of the Complex and therefore, is much superior to a standalone garage, which is either open from the front or is protected only by a lock.

Both DLF and the complainants relied upon the decision of the Supreme Court in Nahalchand Laloochand P. Ltd Vs. Panchali Co-Op. Housing Society Ltd in which case the developer had provided stilt parking spaces / open parkings and had declared that the said parking would belong exclusively to home owners.

Justice Jain noted that as per the decision of the apex court in Nahalchand, a) The standalone garage is not a flat, b) Every space for parking motor vehicle is not a garage, c) For the purpose of MoFA (Maharashtra Ownership of Flat Act) , the term "Garage" must be considered as would be understood by a flat purchaser and d) A garage must have a roof and wall on three sides.

He said, "…the basement is included in the definition of common areas and facilities given in Section 3(j) of the Delhi Apartments Ownership Act. The parking areas are also expressly included in the definition of common areas and facilities. The basements would mean every basement provided in a multi-storeyed building irrespective of the use to which the basement is put. Delhi Apartments Ownership Act does not exclude, from the purview of the term common areas and facilities, a basement, which is used for car parking. Likewise, parking areas, irrespective of whether such areas are open or covered, whether they are provided on the surface or in the stilt area or in the basement would be a part of the common areas and facilities in relation to a multi-storeyed building.

*Despite Security, Basement parking doesn't qualify as a garage

"…a parking area is an area meant for parking of the vehicles, wherever such areas may be located. As far as the term 'garage' used in Section 3(c) of the Delhi Apartment Ownership Act is concerned, this in my opinion, contemplates a covered space, which is provided for the exclusive use of a particular apartment owner and the other apartments owner have no right in such a space, which necessarily needs to have roof and covered atleast on three sides. To an ordinary apartment owner, a garage means a place where he can safely park his vehicle under his own lock and key, to the complete exclusion of the other apartment owners, though such garage need not necessarily be adjacent to the building in which the apartment is located. The basement used for a parking the cars, in my opinion, does not qualify as a garage since an individual allottee cannot put his own lock and key on it and despite the security provided at the entrance of the basement and elsewhere in the building, it cannot be as safe as an individual garage which can be locked by its allottee. If a standalone garage is provided to an allottee, there is hardly any scope for an outsider accessing the said garage unless, he breaks the locks put by the allottee on the garage. On the other hand, a basement used for car parking of a large number of allottees is accessible to all of them and therefore, does not ensure security and safety of the level available in a standalone," the Commission observed.

"Though, Delhi Apartment Ownership Act, permits the promotor of a building to designate certain areas as common areas and facilities, which are reserved for use of certain apartment or apartments to the exclusion of other apartments, the basement parking, in my opinion, does not qualify as limited common areas and facilities. In any case, the basement parking was not actually designated in writing by the developer as limited common areas and facilities within the meaning of Delhi Apartments Ownership Act," it ruled.

On DLF submitting that had the club area and basement parking been included while determining the sale price of the apartments, the cost to the allottees would have been much higher, the Commission said, "Even if that is so, the law did not permit the developer from excluding the said areas, while determining the price of the apartment on the basis of its super area comprising the apartment area as well as the common area".

"The developer cannot be allowed to charge for the common areas and facilities which he deliberately did not include as a part of the said areas and facilities," it held.

On Club charges also, the Commission held that since a club is meant primarily for providing sports and recreational facilities to its members, it would form part of the common areas and facilities under the Delhi Apartments Ownership Act.

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