The Problems of Car parking

Car parking has become one of the most contentious issues in cooperative housing societies. With the number of private vehicles increasing rapidly and available parking space remaining limited, disputes frequently arise between members, tenants, builders and managing committees.

Questions relating to parking are not merely administrative. They involve the Maharashtra Cooperative Societies Act, society bye-laws, municipal regulations, sanctioned building plans and the legal rights attached to flats and common areas.

A number of practical questions arise:

• Does a tenant have a right to park a vehicle in the society compound?
• Can a member of a cooperative housing society demand a parking space?
• Can a builder sell or allot an open parking space?
• Can a society allot more than one parking space to a member?
• Can the general body impose parking charges?
• Can parking areas be converted into shops or other premises?
• Does purchasing a flat automatically confer a right to park a car?
• What happens when the builder fails to register the society or execute conveyance?

These questions have to be examined in the context of the applicable law and the sanctioned layout, rather than merely on the basis of a resolution passed by the managing committee.

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1. Parking Is a Major Housing Society Issue

In densely populated cities such as Mumbai, parking space is scarce and therefore extremely valuable.

A society may have dozens or even hundreds of flats but only a limited number of permissible parking spaces. This creates disputes when:

• one member owns multiple cars;
• members demand more than one parking space;
• tenants seek parking facilities;
• visitors occupy members’ parking;
• builders attempt to sell parking spaces;
• parking areas are converted for other purposes; or
• members claim exclusive rights over common areas.

The solution cannot be to permit unrestricted parking merely because the society has vacant space.

The number, location and nature of parking spaces must comply with the sanctioned plan and applicable development regulations.

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2. Does a Flat Owner Automatically Have a Right to Park a Car?

Ownership of a flat and entitlement to a particular parking space are not necessarily the same thing.

A member may have the right to use the common areas and facilities of the society in accordance with the applicable law and bye-laws. However, that does not automatically mean that the member can claim an exclusive parking space wherever he or she chooses.

Parking arrangements have to be made by the society in accordance with:

• the sanctioned building plan;
• applicable municipal regulations;
• development control regulations;
• society bye-laws; and
• resolutions of the competent general body.

The society therefore has to maintain an orderly and legally compliant parking system.

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3. Can the Society Permit Unlimited Cars?

No.

A society cannot simply allow every member to park multiple vehicles merely because some open area is available.

Parking areas are subject to the sanctioned plan and development regulations. If an area has been earmarked for a garden, recreation, access, fire tender movement or another approved purpose, it cannot ordinarily be converted into unrestricted parking merely through a society resolution.

This is particularly important in cases where members attempt to park vehicles in:

• garden areas;
• playgrounds;
• access roads;
• fire access areas;
• entrance and exit passages;
• areas reserved for recreational use; or
• other spaces not sanctioned for parking.

A society resolution cannot override municipal planning requirements.

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4. Role of the General Body in Parking Allotment

The general body has an important role in determining the society’s parking policy, subject to the law.

The society may formulate a system dealing with:

• allotment of available parking spaces;
• parking charges;
• eligibility;
• rotation of parking;
• renewal or re-allotment;
• visitor parking;
• use of additional vehicles; and
• consequences of unauthorised parking.

However, the general body must operate within the limits of the sanctioned plan, development regulations and applicable statutory provisions.

A resolution cannot legalise an otherwise unauthorised use of the premises.

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5. Can the Society Charge for Parking?

Yes, subject to the applicable bye-laws and the decision of the competent authority of the society.

Parking charges are generally treated as a component of society charges, with the rate and manner of collection determined in accordance with the applicable bye-laws and general body decisions.

The objective of parking charges should be to regulate and manage the facility rather than create an unrestricted source of revenue.

The society should maintain transparency and uniformity while determining parking charges.

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6. Can a Member Demand Two or Three Parking Spaces?

A member cannot insist that the society provide multiple parking spaces merely because he or she owns multiple vehicles.

Where parking is limited, the society should adopt a fair and transparent allocation policy.

For example, the general body may frame rules under which:

1. each eligible member is first considered for one parking space;
2. remaining spaces may subsequently be allotted to members requiring additional parking;
3. additional charges may be prescribed; and
4. the arrangement may be reviewed periodically.

However, such a policy must remain consistent with the sanctioned parking capacity and applicable municipal regulations.

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7. What About Tenants?

The position of a tenant or licensee has to be distinguished from that of the flat owner.

A tenant may have rights to use the premises through the member/owner, but that does not necessarily mean that the tenant obtains an independent proprietary right over a particular parking space.

The society can regulate the use of parking facilities in accordance with its lawful parking rules.

At the same time, the society should avoid arbitrary or discriminatory restrictions merely because the vehicle belongs to a tenant or licensee.

The correct approach is to regulate the use of parking, not to impose restrictions based on irrelevant personal characteristics.

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8. Can a Builder Sell Open Parking?

This is an area where the legal position has evolved significantly.

Under the Real Estate (Regulation and Development) Act, 2016 (RERA), open parking is treated differently from a garage or covered parking.

Section 2(n) of RERA includes open parking areas within common areas. Section 2(y), meanwhile, defines a garage as a space having a roof and walls on three sides intended for parking a vehicle.

Therefore, open parking cannot simply be treated as a separately saleable proprietary unit in the same manner as a flat or a legally recognised garage.

MahaRERA has also issued detailed directions concerning the identification, marking, numbering and disclosure of parking spaces.

Accordingly, buyers should carefully examine:

• sanctioned plans;
• agreement for sale;
• parking plan;
• nature of the parking space;
• whether it is open, covered or a garage; and
• the applicable MahaRERA disclosures.

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9. Stilt, Podium, Basement and Open Parking

One of the most common mistakes is to treat every parking area as “open parking.”

Stilt parking, podium parking, basement parking and open parking are not necessarily identical legal categories.

The classification depends on the applicable development regulations and the sanctioned plan.

For example, an area in a basement or podium may constitute a covered parking space, subject to the applicable regulatory requirements.

Therefore, a society or purchaser should not rely merely on the physical appearance of the parking area.

The sanctioned plan and applicable regulations must be examined.

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10. Parking Cannot Be Converted Into Shops

A serious problem arises when an area originally sanctioned for parking is subsequently converted into:

• shops;
• offices;
• storage rooms;
• cabins;
• private rooms; or
• other commercial or residential premises.

Such conversion may amount to unauthorised change of user.

The society should not permit members or occupants to alter the sanctioned use of the premises merely through an internal resolution.

If the municipal or planning authority has sanctioned an area for parking, the society must ensure that the area continues to be used in accordance with the approved plan.

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11. Builder’s Failure to Form the Society

Historically, disputes have also arisen where builders delayed formation of the cooperative housing society and attempted to retain control over common areas and parking.

A promoter cannot ordinarily take advantage of his own failure to perform his statutory obligations.

Where purchasers have taken possession and the statutory requirements for formation of the society have been fulfilled, the promoter’s failure to register the society should not be used as a mechanism to indefinitely deny purchasers the rights available to them under law.

The same principle is relevant when dealing with common areas, amenities and parking facilities.

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12. Can a Society Take Away an Existing Parking Arrangement?

The answer depends upon the nature of the original allotment and the legal status of the parking space.

If a member has been allotted a parking space under a valid and legally recognised arrangement, the society should not arbitrarily cancel it.

However, parking arrangements may have to be reconsidered where:

• the original allotment violated the sanctioned plan;
• the space was wrongly treated as an exclusive property;
• the allocation exceeded permissible parking capacity;
• a general body-approved rotation system applies;
• the parking arrangement was temporary; or
• a statutory authority has directed modification.

The society should therefore maintain proper records of every parking allotment.

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13. Parking and Society Bye-Laws

The society’s bye-laws provide the framework for managing parking and other common facilities.

The relevant provisions should be read along with the Maharashtra Cooperative Societies Act, applicable Rules, municipal laws and development regulations.

The bye-laws cannot be interpreted in isolation.

A society committee should therefore avoid taking decisions such as:

“The general body has passed a resolution, therefore it is automatically legal.”

That is not always correct.

A general body resolution must itself comply with the law.

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14. What Should a Society Do When Parking Is Insufficient?

Where the society has fewer parking spaces than vehicles, the best solution is to adopt a written, transparent parking policy.

The policy may address:

One-space-first principle

Give eligible members an opportunity to obtain one parking space before considering additional requirements.

Rotation

Where there are substantially more eligible members than parking spaces, the society may consider a fair rotation mechanism, subject to its bye-laws and applicable law.

Additional parking

If spaces remain after primary allotment, the society may formulate rules for additional vehicles.

Visitor parking

Visitor parking should not be permanently occupied by members.

Transparent records

The society should maintain a register containing:

• parking number;
• member’s name;
• vehicle number;
• type of parking;
• date of allotment;
• applicable charges; and
• period of allotment.

This can substantially reduce future disputes.

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15. What If a Member Parks in a Garden or Common Passage?

A member cannot convert common space into private parking merely because he or she has no parking slot.

Parking a vehicle in:

• a garden;
• passage;
• staircase access;
• fire access area;
• entrance;
• recreational area; or
• another non-parking area

can interfere with the rights of other residents and may violate the sanctioned use of the premises.

The managing committee should issue an appropriate notice and require the member to remove the vehicle.

If necessary, the society may take further action under the applicable bye-laws and law.

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16. Important Principle: Parking Is a Regulated Facility

The most important principle is that parking cannot be treated simply as an extension of the flat owner’s private property.

The right to use a parking space depends upon:

the sanctioned plan + applicable development regulations + RERA provisions where applicable + society bye-laws + lawful allotment.

Therefore, neither a builder nor a society can create proprietary rights over a space contrary to the statutory framework.

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17. What Should Flat Buyers Check Before Buying?

Before purchasing a flat, a buyer should specifically verify the parking arrangement.

Check:

1. Sanctioned plan
Confirm which spaces are actually sanctioned as parking.

2. Agreement for sale
Check what has been promised regarding parking.

3. Parking plan
Verify the number and nature of the allotted space.

4. RERA disclosures
Where RERA applies, examine the parking disclosures on the project record.

5. Society records
For resale properties, verify the society’s parking allotment records.

6. Type of parking
Determine whether it is open, covered, basement, podium, stilt or a garage.

7. Society resolution
Check whether the parking was allotted in accordance with a valid society policy.

8. Municipal compliance
Ensure that the area has not been converted from another sanctioned use.

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18. Conclusion

Car parking is one of the most difficult management issues faced by cooperative housing societies, particularly in Mumbai. The shortage of space often leads to disputes between members, tenants, builders and managing committees.

However, the solution is not to permit arbitrary occupation of common areas.

A legally sustainable parking policy should be based on the sanctioned building plan, development regulations, applicable RERA provisions, the Maharashtra Cooperative Societies framework and the society’s registered bye-laws.

The society should adopt a fair, transparent and documented system of allotment, particularly where parking spaces are fewer than the number of members requiring them.

At the same time, flat purchasers should understand that purchasing a flat does not automatically mean purchasing a separate proprietary right over every parking space associated with the building.

The exact legal position will depend on the nature of the parking space, the sanctioned plan, the agreement, the date of construction, the applicable regulations and the documents under which the parking was allotted.