Can Developers Sell Stilt Portions or Rights of Way? Legal Insights

In the bustling real estate market of India, disputes over property rights are commonplace, especially in multi-story developments. One pressing question arises frequently: Developer has no Right to Sell Stilt Portion by Right of Way to Adjacent Property. Homebuyers, adjacent property owners, and developers alike grapple with whether stilt areas—often used for parking or access—can be sold off or encumbered with rights of way without proper legal backing. This blog delves into the legal boundaries, drawing from key statutes and judgments to clarify the position.

Note: This article provides general information based on legal principles and case law. It is not a substitute for professional legal advice. Consult a qualified lawyer for your specific situation.

Main Legal Finding: Developers' Limited Authority

Generally, developers do not have an inherent or statutory right to sell stilt portions or grant rights of way over them to adjacent properties unless explicitly authorized by law or contract. Rights of easement and rights of way are strictly governed by the Indian Easements Act, 1882, and cannot be created or transferred arbitrarily. 2019 6 Supreme 737

Key points include:- Sale or transfer of common or easement areas like stilt portions requires clear contractual provisions or legal recognition; otherwise, it's invalid.- Developers' powers are confined to what's expressly stated in development or sale agreements. Claims beyond this are typically unsustainable. 2019 6 Supreme 737

This stance protects common areas essential for building functionality and prevents unauthorized encroachments.

Legal Principles Governing Easements and Rights of Way

The Indian Easements Act, 1882, forms the bedrock. Section 15 covers prescriptive easements, demanding open, peaceful, and continuous use over a statutory period. Section 13 addresses easements of necessity, arising only when indispensable for land enjoyment. Crucially, no easement exists without an explicit legal or contractual foundation. 2019 6 Supreme 737

Courts emphasize priority in rights creation: The said provision contemplates that where a person i.e. Rajasekaran has created different rights in or over the same property ... such rights cannot all exist or be exercised to their full extent together, then each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created. 2019 6 Supreme 737

Without such a special contract, developers cannot unilaterally sell or grant access over stilts.

Developers' Rights and Limitations in Practice

Developers' authority stems from sale deeds and agreements, not assumptions. In 2019 6 Supreme 737, the court ruled that rights like passage are limited to what's expressly granted: The appellants have been granted right to use passage in the sale deed. Thus, it is not easement of necessity being claimed by the appellants. It is right granted to defendant No. 2 in the sale deed therefore, such right will not extinguish in terms of Section 41 of the Easements Act, 1882.

This underscores that absent explicit inclusion, no transfer of stilt rights occurs. Similar views echo in consumer protection cases. For instance, promoters lack the right to sell stilt parking as it's neither a 'flat' nor appurtenant thereto: The promoter has no right to sell any portion of such building which is not flat' within the meaning of Section 2(a-1) ... It is, thus, clear that the promoter has no right to sellstilt parking spaces' as these are neither flat' nor appurtenant or attachment to aflat'. 2022 Supreme(Online)(NCDRC) 159

PRAVIN G. JOSHI & 3 ORS. vs SAROJINI GANGADHAR & 3 ORS.

Insights from Related Case Law on Common Areas and Stilts

Multiple judgments reinforce that stilt and open spaces are common areas, not for exclusive sale:

• Surrounding open spaces in residential buildings are for shared use among flat owners, overriding developer claims based on agreements. Courts prioritize statutory definitions under the Consumer Protection Act, 1986 and Maharashtra Apartment Ownership Act, 1970. 2022 Supreme(Online)(NCDRC) 159

• In redevelopment disputes, covenants reserving stilt portions may bind successors if explicit, but societies cannot dishonestly disclaim them. However, this requires clear deeds: iii) It is further agreed that concerning the stilt portion on the ground floor of the said building four of the same bearing Nos.101 to 111 shall always belong to the Vendor... 2025 0 Supreme(Bom) 1385

• Interim reliefs prevent developers from alienating disputed stilt areas during arbitration: ...restrained the appellant developer, from alienating or creating any third party right in respect of the property described in Schedule 'B' to the petition; that is, the additional space developed on the stilt area... 2025 Supreme(Online)(Kar) 17494

• Under U.P. Apartment Act, 2010, common areas like stilts cannot be transferred undividedly, and promoters cannot delay owners' associations. Stilt parking falls under limited common facilities if declared, but not for sale. 2013 0 Supreme(All) 2606

These cases illustrate courts' scrutiny: Developers must prove explicit authority; otherwise, sales fail.

Exceptions: When Transfers Might Be Valid

While the general rule bars arbitrary sales, exceptions exist:- Explicit Agreements: If development or sale deeds clearly reserve rights of way or stilt ownership, transfers may hold. 2025 0 Supreme(Bom) 1385- Prescriptive or Necessity Easements: Proven through long-term use, but developers cannot claim unilaterally. 2019 6 Supreme 737- Covenants Running with Land: Binding on successors if unchallenged, as in conveyance deeds. 2025 0 Supreme(Bom) 1385

However, even here, statutes like Maharashtra Ownership Flats Act limit promoters to selling 'flats,' excluding stilts. 2013 0 Supreme(Bom) 18

Practical Recommendations for Stakeholders

To navigate these issues:- Developers: Embed all intended rights explicitly in agreements to avoid invalid transfers.- Buyers/Owners: Scrutinize deeds for stilt/right of way clauses; challenge unauthorized claims promptly.- Adjacent Owners: Verify no prescriptive easements exist before purchase; seek court clarification if needed.

In arbitration or suits, courts often grant interim stays to preserve status quo, as seen in joint development disputes. 2025 Supreme(Online)(Kar) 17494

Conclusion: Prioritize Clarity in Property Deals

In summary, developers typically have no right to sell stilt portions or rights of way without ironclad contractual or statutory support, as affirmed by the Indian Easements Act and precedents like 2019 6 Supreme 737. Stilt areas are often common, unsellable as 'flats' per rulings in

PRAVIN G. JOSHI & 3 ORS. vs SAROJINI GANGADHAR & 3 ORS.

Key Takeaways:- Always check explicit deed provisions.- Common areas trump private claims.- Consult experts to validate rights.

Stay proactive in property transactions to sidestep disputes. For tailored guidance, reach out to a property law specialist.