Flat Owners Can't Restrict Common Facility Access When Sale Deed Allows Sharing: Karnataka High Court

The Karnataka High Court on 9 July held that flat owners cannot claim exclusive rights over common amenities where the registered sale deed permits residents of different phases of a housing project to share such facilities.

A Division Bench of Justices Jayant Banerji and Tara Vitasta Ganju dismissed the appeal filed by the owners of a flat in the “Arya Hamsa” project and upheld the Karnataka Real Estate Regulatory Authority and Appellate Tribunal orders allowing residents of the neighbouring “Arya Hamsa Grande” project to use shared roads, the clubhouse and entertainment facilities. The judges observed:

“The only sharing that is envisaged is with respect to facilities available in the common areas such as roads, club house and entertainment facility in any phase by any of the owners of units in the Project. The interest that is being referred to by the Allottees is not created on the flat that has been allotted to them, but on the common facilities such as the club house and other easementary facilities as provided to the Allottees by the Respondents. Since such an interest is not an absolute interest and would not attract the provisions of Section 11 of the T.P Act.”

The dispute arose between residents of two adjoining residential projects, Arya Hamsa and Arya Hamsa Grande, developed at Kothnur Village, Uttarahalli Hobli, Bengaluru South Taluk.

The appellants, the Charatis, owned a flat in Arya Hamsa, which was constructed on Survey No.28/1 and received its occupancy certificate in 2015. Arya Gruha Private Limited later developed Arya Hamsa Grande on the neighbouring Survey No.28/2.

Although the two projects were developed under separate joint development agreements, involved different landowners and were approved under separate plans, they were located adjacent to each other. Arya Hamsa Grande was registered as an ongoing project under the Real Estate (Regulation and Development) Act, 2016 (RERA) and received its occupancy certificate on 31 January 2019.

The Charatis objected to residents of Arya Hamsa Grande using common facilities, including the clubhouse, roads, pathways and entry and exit gates. They claimed that the facilities were meant only for residents of Arya Hamsa and that sharing them affected their peaceful enjoyment of the property.

They filed a complaint under Section 31 of RERA (which allows an aggrieved person to approach the regulatory authority for violations under the Act), seeking revocation of Arya Hamsa Grande's registration and penalties under Sections 60 and 61 for alleged violations of Sections 4 and 14 relating to project disclosures and changes to sanctioned plans or specifications.

The Karnataka Real Estate Regulatory Authority dismissed the complaint on 6 May 2022 after examining the registered sale deed dated 3 November 2015. It held that the sale deed did not grant the Charatis exclusive rights over the common amenities. The order was amended on 24 January 2023.

The Appellate Tribunal dismissed the appeal on 1 August 2025, holding that the sale deed clearly recorded the flat owners' consent to shared use of amenities across both projects.

The Charatis then approached the High Court under Section 58 of RERA (which provides for an appeal against an order of the Appellate Tribunal on a substantial question of law). They argued that the amenity-sharing clause imposed an invalid restriction on their property rights under Section 11 of the Transfer of Property Act, 1882, which bars restrictions on the enjoyment of an absolute interest transferred in property. They also argued that the clause was void for uncertainty under Section 29 of the Indian Contract Act, 1872, which invalidates agreements whose meaning cannot be made certain.

Rejecting the arguments, the Court held that Section 11 of the Transfer of Property Act would apply only where an absolute interest in property is transferred and a restriction is imposed on its enjoyment. It held that while the Charatis had ownership rights over their flat, they did not have an absolute or exclusive interest in the clubhouse, roads or other common facilities. It noted that the registered sale deed expressly permitted owners of units in different phases, whether within or outside the scheduled property, to use the common amenities.

Further, the Bench observed that the sale deed remained binding as it had not been challenged before a civil court. Rejecting the plea under Section 29 of the Indian Contract Act, it held that the registered sale deed clearly set out the sale consideration, transfer and amenity-sharing arrangement. It held:

“This provision would be inapplicable in a case where a Sale Deed clearly sets out the sale consideration and the transfer and has been duly registered.”

Accordingly, the High Court dismissed the appeal and closed all pending applications, holding that no substantial question of law arose.

Appearances for appellants (Shailesh B. Charati and Mamta S. Charati): Advocate Vidyadhar M. Durgekar.