We are an apartment located in Bangalore. The apartment complex is complete and we have an OC obtained 2 years back. We the owners were promised an amenities complex housing swimming pool, badminton court etc. The Master Plan did not have this amenities complex (the master plan was not shared with us). A.The sale agreement mentioned : The amenities complex would be built INSIDE apartment complex land B.The sale deed mentioned : The amenities complex would be built OUTSIDE apartment complex land Since the sale agreement and sale deed were separated by couple of years one would not know what the sale agreement mentioned about a particular aspect. The developer has thus cleverly slipped in this clause and we have signed it unknowingly. I am told the regulation of construction of apartments in Karnataka falls under the purview of KOFA (Karnataka Ownership of Flats Act), 1972. Section 7 of the act deals with changes to plan. The exact wordings are as below: (1) After the plans and specifications of the building,as approved by the local authority as aforesaid,are disclosed or furnished to the person who agrees to take one or more flats,the promoter shall not make,- (i) any alterations in the structures described therein in respect of the flat or flats which are agreed to be taken, without the previous consent of that person; or ii) any other alterations in the structure of the building, or construct any additional structures, without the previous consent of all the persons who have agreed to take the flats. Does the sale deed supersede the sale agreement in this case ? It's very clear to us that the developer has done this to gain benefit and deprive us of our rights.Do we have a case here ? (The developer has continued to mention the same (A and B) in recently executed agreements when he has built the Club House. Does it not amount misrepresentation and support our assertion that this clause in the sale deed is not binding on us) Please advise.
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sale deed supersedes the agreement for sale
2) it does appear that builder has sought to defraud the flat owners by not providing club amenities inside the apartment complex
3) if you file complaint before consumer forum builder would take the plea that you have given your consent to amenities being provided outside the aprtment complex
The sale agreement is the primary and principle offer document, based on which you have decided to buy the apartment. So If the builder has changed or reworded the clause with respect to club house as Inside and Outside, he has out rightly cheated you and therefore he can be prosecuted U/s 7 of the KAOA Act 1972, if your association is formed under this act.
The act of the Builder does amount to misrepresentation and fraud, he can be prosecuted accordingly.
The developer by not complying with the conditions mentioned in the sale agreement has breached the agreement and therefore liable to prosecuted.
The sale deed may contain a different story, but what induced you to buy the property was the attractive schemes that were offered for purchase of the property and the same was duly incorporated in the sale agreement too.
Now backing out from the words of agreement and coming out with a different story in the sale deed is nothing but a deceitful act and breach of trust.
The developer is answerable under criminal law for cheating and breach of trust offences.
Besides, you can drag him to consumer forum too seeking compensation for the loss as well as for deficiency of service.
1. The title to a property originates from the sale deed. If there was a clause in the sale deed contrary to what had been made a part of the sale agreement then the prospective buyer should either not have gone for the execution of the sale deed, or executed it under protest.
2. Be that as it may, a suit may be filed in the civil court now to seek mandatory injunction against the seller to honour the agreement,
Some additional information and questions: By moving the clubhouse / amenities complex OUTSIDE of the land belonging to the Apartment Complex the developer is claiming that the ownership of the amenities does not belong to the apartment owners but he is now vesting the ownership in a private trust. The private trust is formed ostensibly for the benefit of apartment owners. The usage of the amenities is now being offered on subscription basis There is no consent of the owners for a trust (in any of the documents executed) while the Trust Deed mentions the owners have asked the developer to form a trust. The relevant excerpts from the Construction Agreement : 1.The Developer agrees to provide a Club House and Entertainment Facility WITHIN THE Schedule A property. 2. The Club House and Entertainment Facility shall be managed and maintained by the Association of Apartment owners and be made available to the Apartment owners on such terms as they find fit, with no responsibility of the developer. 3. The Purchasers hereby consents to use of the space WITHIN THE Schedule A property, as may be identified by the developer for this purpose and consents to the same being provided for all the owners of units in the Project which may consist of different phases which may be located within or outside the Schedule A property. Excerpts from the Sale Deed: 1.11 The Developers are providing a Club House and Entertainment Facility outside the Schedule A Property and common facilities, etc. inside the Schedule A Property including roads, STP, transformer yards, electrical infrastructure, etc. 1.12 The Common facilities, Club House and Entertainment Facility shall be managed and maintained by the Association of Apartment Owners and be made available to the Apartment Owners to manage it on such terms as they find fit, with no charges payable to the Developers. 1.13 The Purchaser/s hereby consents to use of the space, as may be identified by the Developers for this purpose and consents to the same being provided for all owners of units in the project, which may consist of different phases which may be located within or outside the Schedule A Property and expressly consents to the use of common amenities including the roads, Club House and Entertainment Facility in any phase by any of the Owners of units in the Project. Our stance: A. In our opinion that the OUTSIDE clause was slipped in with the intention of changing the ownership pattern of club house (amenities complex) B. Further now the concept of Trust is being foisted upon us C.The subscription model for Club House (Amenities Complex) is also now being forced upon. Question: I have shared all the relevant excerpts about the club house/amenities complex. Do you think we are right in claiming that ownership was promised to us and now being taken away by this clever trick of slipping the OUTSIDE word in the sale deed to which we have NOT given informed consent?Also there's no disclosure of the ownership pattern of the club house in executed documents and no mention of Trust / Subscription model. Hence do we have sufficient grounds to claim that : I. The club house/ amenities complex should be owned collectively by all apartment owners II. The Association of apartment owners should manage the affairs III. Since this is owned by the apartment owners the question of subscription does not arise. Please advise.
builder wants to form private trust and construct club house facilites outside the complex to extort money from flat owners
2) builder must be wanting to use ;land within the complex reserved for club house by construction of additional buildings
3)flat owners should collectively write to the builder that they want club house within the complex as agreed upon in sale agreement
4)if builder refuses file complaint against builder before consumer forum and seek orders to direct builder to provide club house within the complex
5) seek litigation costs and compernsation
6)the only probblem is flat owners have signed sale deed wherrein they agreed for construction of club house outside the complex
As far as the excerpts from sale deed as reproduced by you is concerned the condition is "The Developers are providing a Club House and Entertainment Facility outside the Schedule A Property and common facilities, etc. inside the Schedule A Property including roads, STP, transformer yards, electrical infrastructure, etc."
So it is clear that he is providing this facility either outside or inside.
There is no mention about formation of any trust in it.Thus the club house and other amenities shall come directly under the society and as agreed there should not be any subscription for this.
If there is any deviation on this you may gather all like minded owners and agitate the issue as per law and do not allow any loss to happen to you in this regard
1. The sale deed has been very cleverly worded for sure, but the buyer failed to conduct due diligence at the time of execution of sale deed. You should have got the sale deed vetted by a lawyer before proceeding to execute it.
2. A suit for declaration and mandatory injunction against the developer is now the answer.