'Open Spaces Linked To Building Use Must Be Conveyed To Housing Societies Under MOFA': Bombay HC

Mumbai, May 19: The Bombay High Court recently ruled that housing societies are entitled to not just the building area but also the surrounding open spaces needed for residents’ use and enjoyment while granting deemed conveyance under the Maharashtra Ownership Flats Act (MOFA).

Justice Amit Borkar partly allowed a petition filed by Rashesh Cooperative Housing Society Limited against an order that had denied it conveyance rights beyond the building’s plinth area.

The society, located in Bhayandar, was developed by Shreeji Developers. The society told the court that although it was formed in 2015, the developer had not transferred the land and related rights to it. It sought deemed conveyance under a 2018 Government Resolution.

Court examines conveyance rights

The society claimed rights over a larger portion of land, including open spaces and a share in the recreational ground. The developer argued that only the building footprint and limited surrounding area could be conveyed and not the larger common amenities in the layout.

In its judgment, the court said a developer cannot retain mandatory open spaces that are necessary for the building’s use. “The promoter cannot convey only the footprint beneath columns and staircase and retain all open areas despite those open areas being mandatory under building rules,” the court observed.

Justice Borkar noted that open spaces required for access, ventilation, fire safety, parking and circulation are integral to the beneficial enjoyment of a building and cannot be treated as the promoter’s exclusive property once the society is formed.

At the same time, the court clarified that common recreational and amenity spaces within a larger layout cannot belong exclusively to one society. Such spaces are meant for common use by all occupants in the project. “Such facilities cannot be used exclusively by one society unless the sanctioned plan specifically says so,” the judgment said.

Fresh conveyance certificate ordered

After examining the sanctioned plans and architect certificates submitted by both sides, the court accepted the developer’s measurements of the actual plinth and appurtenant areas (land that is functionally connected to a building or property, providing necessary space for its use, enjoyment, or access).

The court held that the society was entitled to exclusive conveyance of 2,201.56 square metres, including 1,151.56 square metres of plinth area and 1,050 square metres of appurtenant land.

It also granted the society an undivided proportionate share of 703.62 square metres in the common recreational ground area.

The court quashed the 2025 order of the competent authority and directed it to issue a fresh deemed conveyance certificate within eight weeks.

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“While issuing the fresh certificate, respondent No. 2 (District Deputy Registrar, Thane) shall ensure that necessary description of survey numbers, hissa numbers, layout particulars and municipal plan references are incorporated,” the court emphasised.

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