Everything you need to know about common areas in apartments

[ecis2016.org] Here’s all that you need to know about common areas in apartments and what the Apartment Act says about it

You might have come across the term ‘common areas’ every now and then. These are areas that are, as the name suggests, common to all and therefore, paid for by all the residents of an apartment complex. Every property owner in a project is a co-owner of the common areas. It belongs to all owners, equally.

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What is included in the common area?

When a developer firm gives you the super-built up area of a property, he is referring to the total area, inclusive of the common areas. As per the Real Estate (Regulation and Development) Act, 2016, common areas include:

1. 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.
2. Staircases, elevators, staircase and elevator lobbies, fire escapes and common entrances and exits of buildings.
3. Common terraces and basements, parks, play areas, open parking areas and common storage spaces.
4. 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.
5. All community and commercial facilities as provided in the real estate project.
6. Installations of central services such as electricity, gas, water and sanitation, air-conditioning and incineration and systems for water conservation and renewable energy.
7. Water tanks, sumps, motors, compressors, fans, ducts and all apparatus connected with installations for common use.
8. Other portions of the project necessary or convenient for its maintenance, safety, etc. and in common use.

What does the Apartment Act say about common areas?

Common areas are indivisible

Common areas and facilities cannot be divided and no owner or resident can ask for a division or partition. Any covenant such as this will be invalid. Moreover, co-owners cannot hinder or encroach the rights of others, in terms of common areas.

Role of association of apartment owners

The association of apartment owners has the irrevocable right to access the apartment, during reasonable hours, for maintenance, repair and other related works. Any such work should be in accordance with the provisions of the Apartment Act of the respective state and the bye-laws.

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Can common areas be inherited and transferred?

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The common areas and facilities can be inherited or transferred through sale, mortgage, lease, gift, or exchange, along with the undivided interest in the common areas. Such inheritance of immovable property will be determined as per the law of succession.

Can common areas have encumbrances?

Owners can create encumbrances against the unit owned by them and the percentage of undivided share that is theirs, individually.

Who is responsible for common area maintenance?

Common areas and its upkeep is the collective responsibility of all occupants. A stipulated fee is collected from all residents and this goes towards operational expenditures undertaken to maintain the common areas.

Till the association of allottees takes charge, the builder is responsible for maintaining essential services and payment of maintenance charges or encumbrances to the competent authorities.

The Real Estate Act (RERA) mandates that every allottee should be responsible for making payments towards maintenance of the property and the premises.

Should you pay maintenance charges if you are not using common areas and facilities?

Yes, it is mandatory that all apartment owners pay for the maintenance of common areas and facilities, even if they are not using it actively or do not live in the apartment anymore.

“No apartment owner may exempt himself from liability for his contribution towards the common expenses by waiver of the use of enjoyment of any of the common areas and facilities, or by the abandonment of his apartment,” says the Apartment Act.

Who should pay maintenance charges – tenant or owner?

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From day one of receiving the possession of the unit, the owner is liable to pay the maintenance charges. However, if the property is leased out, the tenant should pay it. An apartment association cannot charge an owner and tenant differently.

How to identify common areas?

The sale deed of the apartment and its registration documents, must mention the details of the land on which the building has been built and the common areas and facilities. It should also mention whether the land is freehold property or leasehold and if it is a leasehold property, the period of such lease. It should also mention the percentage of undivided interest appertaining to the apartment in the common areas and facilities. Limited common areas and facilities must also be clarified.

What happens in case of destruction of the apartment?

In case an apartment project is damaged or destroyed and if the association of apartment owners does not want to repair, reconstruct or re-build such a property, then, the property will be deemed to be owned by the apartment owners in common and the undivided interest in such property owned in common, shall be the percentage of the undivided interest previously owned by such owner in the common areas and facilities.

Can common areas be converted for other purposes?

Common areas can be used for other purposes but not ‘converted’ by an individual for any other use that serves his/her individual interest. For example, if someone chooses to park a vehicle in the common area, it will not become a parking space. Residents, both tenants and owners, should refrain from encroaching upon common areas, because legally, there are many co-owners and your act should not hinder them, until and unless you have a special permission from the apartment association.

Can common roof rights be sold by a developer?

In a housing society, giving or selling exclusive rights to the terrace or rooftop is an illegal practice. Unless the terrace is attached to a unit, all other common terraces belong to every resident. A terrace is private if it is inaccessible from common areas.

Common terrace space cannot be bought or sold and is, therefore, not counted in the floor area ratio (FAR). If a developer engages in such unlawful practices, buyers can approach the consumer forum or even file a civil lawsuit against the builder. However, it is advisable that an aggrieved resident should first approach the society members and the apartment association, before taking legal action.

Commercial properties and CAM

CAM stands for common area maintenance and it is applicable to commercial properties, as well. Some of these charges include payments towards insurance, repair, property maintenance, administrative charges, pest control services and security services. The landlord is responsible for maintaining the common areas, in case of a commercial property.

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