By Advocate Chhaya Khamkar
Source: http://www.accommodationtimes.com/real-estate-news/terrace-and-open-space/
Open terrace:- means terraces which are otherwise not in the exclusive possession of any of the members
Open space:- means an area, forming a integral part of the site, left open to sky.
Generally water tanks, Societies Office, Lift rooms etc. are on the terrace, however, builder with a motive of profit construct terrace flat. The said terrace flats are sold by the builders to promoters who have a wrong impression that they are the owners of the open space adjacent to their flat. The open space adjacent to the terrace is the property of the society. The member does not have a right on the terrace and it is the society which always owns the terrace and can use the open space keeping in view the overall interest of all the members of the society. Even in Municipal Corporation records the same is shown as open space.
The provisions under the Bye-laws No. 171, the open space adjacent to the terrace is the property of the society. On written application by any member of the society the Committee may allow temporary use of the terrace or available open space of the societies building, for any function, subject to such restrictions and on payment of such charges to the society as the meeting of the General Body of the society may decide. The Committee may, with the previous permission of the Local Authority, if needed, allow exhibition of advertisement boards on any part of the building including terrace, on such terms and conditions as are approved by the General Body Meeting.
The provisions under the Bye-laws No. 170, there are restrictions that the Society shall not let out or give on leave and license basis or permit any subletting, giving on leave and license basis any open space available under the stair case or to any person whether the member of the society or not, for any purpose whatsoever.
The society is the owner of the property and it is the responsibility of the society to repair the terrace. It may be emphasized that members residing on the top floor have a common complaint of leakage from the terrace. The members residing on the top floor cannot insist for putting up tiles on the terrace. The society depending upon its financial position may even put tar on the terrace.
The provisions under the Bye-laws No. 160, the damaged ceiling and plaster thereon in the top floor flats, on account of the leakage of the rain water through the terrace the Society is responsible to carry out the repairs by the societies cost.
The member who is residing on top floor and there is leakage at roof of the flat and, therefore, urgent repairs to be undertaking by member. On completion of the repair the member can claim reimbursement of an amount with the interest for the repairs of the terrace as well as the parapets walls. It is necessary that the member claiming for reimbursement of repairs to the roof of his flat and not to the terrace. It is the responsibility of the society to find out whether the leakage is through any flat or through terrace. In the judgment delivered by the Bombay High Court in the case of Humble Home Co-Op. Hsg. Soc. Ltd has held that the Society is responsible to reimbursement of amount with the interest for the urgent repairs terrace and the parapets wall to the member who undertake the repair, and also held that the claim of ownership of the terrace above the roof is irrelevant.