Can a builder sell you a parking space?

Few things in an Indian housing society generate more heat, for longer, than parking. And almost every argument about it eventually reaches the same sentence: "the Supreme Court has said builders can't sell parking."

That sentence is half right, which is worse than being wrong. There is a real Supreme Court judgment, it does say something important, and it is narrower than the way it gets quoted. Here is what the law actually distinguishes.

RERA draws the line at a roof and three walls

The central Act is precise about this, and the precision is the whole point.

Section 2(n) defines "common areas" to include, at sub-clause (iii), "the common basements, terraces, parks, play areas, open parking areas and common storage spaces." Open parking is a common area by statutory definition. It belongs to everyone, it transfers to the association at handover with the rest of the common areas, and it is not the promoter's to sell.

Section 2(y) defines a "garage" as "a place within a project having a roof and walls on three sides for parking any vehicle, but does not include an unenclosed or uncovered parking space such as open parking areas."

Read those two together and the rule falls out cleanly: a garage — roof, three walls — is a distinct thing that can be sold. Open parking is a common area and cannot be. The physical structure decides the legal category. This is central law, so it holds in every state, unlike most of what gets written about Indian societies.

The judgment everyone quotes, and what it actually decided

In Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd. (decided 31 August 2010), the Supreme Court held that stilt parking spaces were part of the common areas under Maharashtra's Ownership Flats Act, and that the promoter could not sell them off as independent units.

That is a real holding and it matters. But three limits on it get dropped every time it is quoted in a society WhatsApp group:

• It was decided under MOFA, in 2010 — before RERA existed. RERA's own definitions of "garage" and "common areas" now do much of this work directly, and they are the operative law for any project registered under it.
• The dispute concerned selling parking to people who were not flat purchasers at all. The Court was not asked to decide, and did not decide, every question about arrangements between a promoter and its own buyers.
• It turned on stilt parking specifically — space without the roof and three walls that make a garage. It is not authority for the proposition that nothing resembling parking can ever be sold.

Commentators have gone as far as calling it one of the most misused precedents in this area, and the misuse runs in both directions: buyers who never paid for parking citing it to claim a slot, and committees citing it to void arrangements it does not reach.

What you probably have is an allotment, not a title

Here is the part that resolves most society-level arguments, and it is separate from what the builder did or didn't sell.

In the ordinary case, a resident does not own a numbered rectangle of the compound. The society allots the use of one. That distinction has real consequences, and Maharashtra — which has actual written model bye-laws, unlike most states — spells them out:

• One slot per member, normally. Bye-law 79 makes a member eligible for a parking slot, and provides that normally no member should be allotted more than one while others go without. Spare slots can be allotted annually where they are genuinely surplus.
• An allotted slot cannot be sold or transferred by the member. Bye-law 77 puts allotment in the committee's hands on a first-come-first-served basis and says plainly that the member has no right to sell or transfer the slot the society allotted.
• Charges are payable whether you park or not. Bye-law 82 requires a member to pay parking charges for the slots allotted to them "irrespective of the fact whether he actually parks his vehicle or not."

Those specific bye-law numbers are Maharashtra's. The underlying logic — allotment by the society, not ownership by the member — is how most associations elsewhere operate too, but if you are outside Maharashtra the binding version is your own registered bye-laws and Declaration, not this list. What Maharashtra's model bye-laws prescribe covers the rest of that document.

What a committee should actually do about it

Most parking disputes are not really legal disputes. They are record-keeping failures that have aged badly:

1. Write the allotment down, with a date. An allotment nobody minuted is an allotment that becomes "my parking" within about three years.
2. Review annually, and say so when you allot. A slot allotted "until reviewed" is a different thing from a slot allotted forever, and the difference has to be stated at the start, not discovered later.
3. Keep the waiting list visible. Most of the anger about parking is really anger about arbitrariness. A visible, dated queue removes the suspicion that allotment follows friendship.
4. Separate the builder question from the society question. What the promoter sold, and what the society allots today, are two different arguments. Conflating them is why these fights never resolve.
5. If common areas never formally came across, fix that first. Parking sits inside the common areas the promoter is obliged to convey — see what your association can demand at handover. Arguing about slot allotment while the common areas are still in the builder's name is arguing about the wrong thing.

The short version

• Open parking is a common area under RERA section 2(n)(iii) — not the promoter's to sell.
• A garage is defined separately in section 2(y) as having a roof and walls on three sides, and is excluded from open parking. The structure decides the category.
• *The Supreme Court's 2010 Nahalchand judgment is real but narrower than quoted* — decided under MOFA, before RERA, about stilt parking, in a dispute over sales to non-purchasers.
• What a resident usually holds is an allotment, not title. In Maharashtra, bye-law 79 (normally one slot), bye-law 77 (no right to sell or transfer an allotted slot) and bye-law 82 (charges payable whether or not you park) say so directly. Elsewhere, check your own registered bye-laws.
• Most parking fights are record-keeping failures. Minute the allotment, date it, review it annually, and keep the waiting list visible.

Sources

• The Real Estate (Regulation and Development) Act, 2016 — Section 2 definitions, including 2(n) common areas and 2(y) garage
• *Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd.*, Supreme Court of India, 31 August 2010 (Indian Kanoon)
• Model Bye-Laws of Cooperative Housing Society, 2014 — Commissioner for Cooperation and Registrar of Cooperative Societies, Maharashtra%20(1).pdf)