Response

Roof comes under common area, cannot be sold or put to exclusive use by any flat owner. You can file civil suit in court to obtain common roof rights. Roof has common right and on land – each have 1/3rd share each. Room and toilet is illegal or for common use.

If your Agreement says that you have a right to access the terrace, then you don’t have to seek permission from anyone much less the owner of the ground floor
The terrace rights would have been granted to you as per maintainence agreement or any other agreement like GPA /possession letters etc.You can file a suit against the owner seeking specific performance of the agreement and You can also seek damages simultaneously.

A terrace or rooftop is a common area of in a residential society which is for the enjoyment and benefit of all its members. Although it has been seen that many developers resort to selling or giving exclusive terrace rights on payment, the practice is illegal.

It is untenable in the eyes of law where one resident gets the right to use the rooftop to the disadvantage of others. If residents choose to wage a legal battle, this may land the developer and the erring resident in soup.

A community hall, a play area, a garden, a stairway, a terrace and elevators are all shared areas and have to be made accessible to all the apartment-owners without any ownership issue. As any repair, replacement and maintenance cost of such common areas has to be borne by all the flat owners collectively, likewise, any income or profits arising from the use of such common areas have to be distributed evenly among all the flat owners.

The landmark judgment delivered in the case of Sri Ramagauri Keshvlal Virani vs Walkeshwar Triveni Co-Operative Society is a case in point. In this case, there was a pocket terrace on the fifth and seventh floor of the building apart from the main terrace on the eighth floor. The flat owner on the seventh floor had two doors from his flat opening in the terrace besides he had also purchased the terrace from the developer. He contended that the entry of other residents to the terrace would disrupt his privacy and also pose a security threat. However, the court held that as the pocket terrace was not exclusively attached to his flat and had a common entrance, therefore, its use cannot be restricted to the disadvantage of the other residents.

Many state enactments also specifically provide for the use of terraces. For example, Maharashtra Ownership of Flats Act, 1963 ÒMOFAÓ in section 10(1) and Section 4(1A) (a) (iii), (viii), (x) makes the intention explicitly clear. It states that a developer has no authority or right to sell the terrace to any individual which is the common easement of all the residents.

The residents can complain against the developer by approaching the Consumer Forum and can complain against the society office-bearers with the Registrar of Societies. Additionally, residents may also file a civil suit in a court of law.

Reference: The landmark judgment delivered in the case of Sri Ramagauri Keshvlal Virani vs Walkeshwar Triveni Co-Operative Society is a case in point. In this case, there was a pocket terrace on the fifth and seventh floor of the building apart from the main terrace on the eighth floor. The flat owner on the seventh floor had two doors from his flat opening in the terrace besides he had also purchased the terrace from the developer. He contended that the entry of other residents to the terrace would disrupt his privacy and also pose a security threat. However, the court held that as the pocket terrace was not exclusively attached to his flat and had a common entrance, therefore, its use cannot be restricted to the disadvantage of the other residents.

Many state enactments also specifically provide for the use of terraces. For example, Maharashtra Ownership of Flats Act, 1963 ÒMOFAÓ in section 10(1) and Section 4(1A) (a) (iii), (viii), (x) makes the intention explicitly clear. It states that a developer has no authority or right to sell the terrace to any individual which is the common easement of all the residents.

The residents can complain against the developer by approaching the Consumer Forum and can complain against the society office-bearers with the Registrar of Societies. Additionally, residents may also file a civil suit in a court of law.

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LAWAYZ-2023-312