Q. I had booked a flat in a re-development project and the agreement possession was promised on July 31, 2024. The developer has obtained a part occupancy certificate (OC), which covers my flat. However, OC for the building means for old society members is expected tentatively by October 31, 2024. Till then the developer has offered me and other buyers “fit out possession” and insists that each of us execute an agreement as per which he will pay to the society the monthly maintenance charges on our behalf till October 31, 2024. However, one clause in this new agreement says that we shall not reside in this flat during this fit-out period. Another clause says that the date of possession, which is recorded in the agreement for sale as July 31, 2024, shall stand extended/revised to tentatively October 31, 2024. I want to know how far such fit-out possession is valid in law. Can the developer deny possession despite obtaining the OC certificate for my flat on the grounds of nonreceipt of OC for the old members of the society? Can the developer insist on me agreeing to the extension of the date of the possession that was mentioned in the agreement for sale?
Sharon V, Goregaon (West)
A. In my opinion, the developer cannot deny you the rightful possession of your flat if he is in possession of the valid part OC for your flat. It may be true that your developer has committed to society that he will not give possession to the free sale component buyers until he gives possession to all society members from the rehab component. That is the normal practice. However, he is expected to know this commitment and ought to have obtained OC for the society members from the rehab portion before obtaining the OC for your sale building meant for new buyers. Hence, non-receipt of OC for the rehab portion and his consequent failure to give possession to society members cannot be allowed to infringe your right to get possession of your flat.
In this context, please note that Clause 7 of the Model Agreement for Sale provides a “procedure for taking possession” as per which, the promoter/developer is bound to offer the possession to the allottees/buyers in writing within seven days of receiving the OC. Thereafter, as per Sec 19(10) of the RERA Act, 2016 “every allottee shall take possession of the flat / apartment within two months of OC. Hence to answer your queries, firstly your developer, in the given set of circumstances as mentioned by you, cannot deny you the rightful possession of your flat for which there exists an OC.
Secondly, he will violate provisions of the RERA Act, Rules, and model agreement for sale if he denies you the rightful possession and insists on giving you a “fit-out possession” despite having received OC for your flat.
Thirdly, the developer cannot insist on you mutually agreeing to modify the date of possession given in the agreement for sale. This is in gross violation of the RERA mandate. By seeking your consent to modify and extend the promised date of possession and that too tentatively, your developer is trying to wriggle out of his legal obligation to pay you interest on the entire amount you have paid so far, at the rate of MCLR plus 2 % per annum for the period of delay in giving you possession. Hence I would advise you not to execute any such agreement and refuse to accept the “fit-out possession”.
Since the OC has already been obtained for your flat I advise you to ask the developer in writing to give you possession of your flat and also call upon him to pay the interest at the MahaRERA rate for the period beyond July 31, 2024, till the actual date of possession as provided under Sec 18 of RERA.
Advocate Shirish V Deshpande is the chairman – of Mumbai Grahak Panchayat Queries may be emailed to shirish50@yahoo.com
