This page explains common area dispute case for a residential property: what the law requires, which papers matter, how long it usually takes and what to do first. The firm of Advocate B.K. Singh handles this work from offices in Dwarka, New Delhi and Vaishali, Ghaziabad.
In short. A common area dispute arises when someone takes over, sells, blocks or misuses space that belongs to all owners, such as staircases, terraces, lobbies, open parking, parks or a shared passage. Disputes with the builder of a registered project usually go to RERA or the consumer commission; disputes between owners or occupiers go to the civil court for injunction; society disputes may go to the Registrar.
Common areas cause more fights in apartment buildings, builder floors and commercial complexes than almost anything else. A builder sells the open parking. The top floor owner locks the terrace. A ground floor shop puts its counter in the corridor. The society rents the roof to a mobile tower company and keeps the money in a dispute. On farmland and in villages, the same fight happens over a shared pathway, a chak road or a common well.
A common area dispute case is the legal route to stop the misuse, get the space restored and, where the law allows, recover compensation. The right forum depends on who is on the other side and what kind of property it is. This page explains what counts as a common area, who owns it, which law applies, where each kind of dispute is filed and what evidence wins it.
- Law
- RERA 2016 (section 2(n) common areas, section 11(4), 14 and 17); state apartment ownership laws (UP Apartment Act 2010, Delhi Apartment Ownership Act 1986, Haryana Apartment Ownership Act 1983); state cooperative societies Acts; Specific Relief Act 1963 sections 34, 38 and 39; Indian Easements Act 1882; Consumer Protection Act 2019; UP Revenue Code 2006 for village common land
- Forum
- RERA authority or consumer commission against the builder; civil court for injunction and declaration; Registrar of Cooperative Societies for society disputes; municipal or development authority for unauthorised construction; revenue officers for village common land
- Time limit
- Most encroachments are continuing wrongs, but act quickly; consumer complaints within 2 years of the cause of action; RERA complaints have no fixed limitation but delay weakens the case; declaration suits within 3 years
- Documents
- Sanctioned building plan, allotment letter and buyer agreement, conveyance or sale deed, deed of declaration, society bye-laws, photographs, correspondence with the builder or association
What counts as a common area
For a real estate project, section 2(n) of the RERA Act defines common areas broadly: the entire land of the project, staircases, lifts, lobbies, fire escapes and common entrances and exits, common basements, terraces, parks, play areas, open parking areas and common storage spaces, the premises for the maintenance staff, installations such as water, electricity and sanitation, community and commercial facilities provided in the project, and all other parts of the project necessary for its maintenance, safety and common use. If something is on that list and the sanctioned plan shows it as common, the builder cannot sell it to one buyer.
In buildings outside RERA, such as older builder floors in Delhi or projects completed before the Act, the answer comes from the sale deeds, the deed of declaration under the state apartment law, the society's bye-laws and the sanctioned plan. A Delhi builder floor typically has a common staircase, common entrance and an undivided share in the land shared by all floor owners, while the roof may be sold with the top floor or kept common, depending on the deeds.
On land, a common area may be a passage used by several plot holders, a chak road shown in the revenue map, Gram Sabha land, a village pond or shamlat land in Haryana. Here the question is often not ownership by the residents but a right of way (an easement) or the public character of the land.
Who owns the common areas
In a flat or apartment, each owner usually gets the flat plus an undivided proportionate share in the land and common areas. No single owner can claim exclusive use of a common area unless the documents and sanctioned plan give it, such as a terrace attached to a penthouse and sold with it. Under section 17 of the RERA Act, the promoter must execute a registered conveyance deed in favour of the allottee with the undivided share in common areas going to the association of allottees, and hand over the common areas and plans to the association or the competent authority as the local law requires.
Until that handover, the builder often maintains the common areas and some builders behave as if they still own them. That is where many disputes start: a builder leases the basement to an outsider, puts up advertising boards, builds an extra block on the land shown as green area, or sells open parking slots. Once the association takes over, disputes shift to the association and individual owners, or between the association and a maintenance agency.
In commercial complexes, the developer sometimes retains ownership of common areas under the sale documents and charges common area maintenance. Whether that is valid depends on the documents, whether the project is RERA registered and what the sanctioned plan says. For leasehold property allotted by an authority such as DDA, Noida or GDA, the authority's lease terms also bind how common areas are used.
Common area disputes and where they usually go
| Type of dispute | Usual forum | What you can ask for |
|---|---|---|
| Builder sells open parking, terrace or basement | RERA authority or consumer commission | Stop the sale, restore the area, refund of charges, compensation |
| Builder changes layout or builds on green area | RERA authority (section 14), development authority, High Court in some cases | Stop construction, restore sanctioned layout |
| Builder fails to hand over common areas to the association | RERA authority | Direction to hand over and execute conveyance |
| Owner encloses corridor, terrace or staircase | Civil court; municipal authority for unauthorised construction | Injunction, removal of structure, mandatory injunction |
| Society or RWA misuses common area or its income | Registrar of Cooperative Societies or civil court; competent authority under the apartment law | Accounts, stop misuse, restore use |
| Shared passage blocked between plots | Civil court; SDM in breach of peace cases | Injunction, declaration of right of way |
| Encroachment on Gram Sabha or village common land | Tehsildar or Assistant Collector under the UP Revenue Code; revenue authorities in Delhi and Haryana | Eviction and damages |
The laws that decide common area disputes
Section 14 and 17, RERA Act 2016
Section 14 bars the promoter from changing the sanctioned plans, layout and specifications without the allottee's consent, and requires the written consent of at least two thirds of the allottees (excluding the promoter) for other alterations to the building, including common areas. Section 17 requires conveyance and handover of common areas to the association. Section 11(4) makes the promoter responsible for providing and maintaining essential services until the association takes over and for enabling the formation of an association.
State apartment ownership laws
The UP Apartment (Promotion of Construction, Ownership and Maintenance) Act 2010 governs apartment buildings in UP, including the formation of the apartment owners' association and the status of common areas. Delhi has the Delhi Apartment Ownership Act 1986 and Haryana the Haryana Apartment Ownership Act 1983, which works through a registered deed of declaration. These laws say who owns what and how the association runs the common areas.
Specific Relief Act 1963, sections 34, 38 and 39
A civil suit can seek a declaration of rights in the common area, a permanent injunction against interference and a mandatory injunction to remove an encroaching structure. Temporary injunctions during the suit are granted under Order 39 rules 1 and 2 of the CPC, and a local commissioner can be appointed under Order 26 to inspect and report on the site.
Indian Easements Act 1882
Covers rights of way, light and air over another's land, including easements of necessity and easements acquired by long use. Many disputes over shared passages between plots are really easement disputes.
Consumer Protection Act 2019
Housing construction is a service under the Act. A builder who charges for common amenities and does not provide them, or sells what should be common, can be held liable for deficiency in service or unfair trade practice.
Cooperative societies laws
In cooperative group housing societies, disputes touching the management or business of the society usually go to the Registrar or an arbitrator under the dispute provision of the state cooperative Act (section 70 in Delhi's 2003 Act), and civil courts are often barred from those disputes.
Disputes with the builder
Selling open parking is the classic builder dispute. RERA lists open parking areas as common areas, so a builder of a registered project cannot sell them as separate units; covered garages are treated differently. The Supreme Court held in Nahalchand Laloochand v Panchali Co-operative Housing Society (2010), under the Maharashtra flat law, that stilt parking is part of the common areas and cannot be sold separately by the builder, and that reasoning is often relied on in other states. If you were charged for an open slot, the charge can be questioned.
Other builder disputes include selling the terrace to the top floor buyer when the plan shows it as common, converting a clubhouse or community hall into a sales office or commercial unit, building extra floors or towers on land shown as open space, leasing roof space for hoardings or towers and keeping the income, and refusing to hand over the common areas and maintenance funds to the association. Each is a breach of the RERA Act for a registered project, and a deficiency in service under consumer law.
The choice between RERA and the consumer commission is yours, since homebuyers can use either (Newtech Promoters v State of UP, 2021). RERA is usually better for directions about the project itself, such as restoring the layout or handing over common areas, while the consumer commission suits compensation claims. A complaint about a group of buyers' common grievance is often stronger when the association files it. See RERA complaint filing for the procedure.
Disputes between owners and occupiers
Inside a building, the most common cases are an owner enclosing part of the corridor or lobby, a top floor owner locking the terrace or building a room on it, a ground floor owner taking over the front setback or stilt area, someone storing goods in the staircase, and an owner tapping into common shafts or ducts. These are disputes between co-owners, and the builder is often not involved.
The civil court is the main forum. A suit for permanent and mandatory injunction, with an application for temporary injunction, can stop further construction and, at trial, order removal. Where the structure is also unauthorised, a complaint to the municipal body or development authority for action against unauthorised construction runs in parallel; our page on illegal construction complaints explains how. Fire safety violations, such as blocked staircases and fire exits, can also be reported to the fire department.
Do not use self-help. Breaking a lock or demolishing someone's wall, even on common property, invites a criminal complaint and weakens your civil case. If there is a threat of violence, a police complaint and, where the dispute is likely to cause a breach of the peace, proceedings before the Executive Magistrate under section 164 of the BNSS are possible, but those are holding measures, not a decision on rights.
Disputes with the RWA, AOA or society
Once the association or society runs the building, disputes are about how it uses common areas: renting the terrace to a mobile tower company, allowing a member to use a common room, allotting parking in a way that favours some members, closing a gate or park, or failing to account for income from common areas. Members can ask for accounts and records under the bye-laws and the governing law, raise the issue at the general body meeting, and then take the dispute to the Registrar (for a cooperative society) or the civil court.
Many of these disputes are better settled than fought. A general body resolution, properly passed, can solve an allotment or usage issue in a few weeks; a suit can take years. Mediation, either at a court-annexed centre or privately, works well where neighbours have to keep living together. Our pages on parking disputes and maintenance disputes deal with two of the most frequent sub-types.
Builder floors and shared houses in Delhi
Builder floors in Delhi are a special case. Typically four floors are sold separately, each with an undivided share in the land, and the staircase, entrance, roof and sometimes the stilt parking are common or allocated by the deeds. Disputes arise when the deeds are vague: one says 'with roof rights', another says 'with proportionate rights in common areas', and the stilt is described differently in each. The first job is to read every floor's sale deed together.
When Advocate B.K. Singh reviews a builder floor dispute, the first thing he checks is whether the four sale deeds and the sanctioned plan agree on the roof, stilt and staircase. Where they do not, the case often turns on the earliest deed, because a seller cannot later sell what he has already conveyed. Where the deeds are silent, the area is generally treated as common to all owners.
Shared family houses raise similar issues without any builder. Brothers who divided floors by family settlement still share the staircase and roof. If the settlement is unregistered or unclear, a partition suit or a fresh registered family settlement may be the real answer, rather than a narrow injunction about the staircase.
Commercial complexes, hospitals, hotels and resorts
In malls, office complexes and mixed-use buildings, disputes centre on common area maintenance charges, signage on the facade, use of corridors for kiosks, parking for customers, roof access for equipment and the developer's right to keep and lease common areas. The documents usually decide these, and many commercial agreements have arbitration clauses, so check the agreement before filing a suit.
Commercial property disputes can fall under the Commercial Courts Act 2015 if they arise from agreements relating to immovable property used exclusively in trade or commerce and cross the specified value. Pre-institution mediation under section 12A is then needed unless urgent interim relief is sought. Hospitals, hotels and resorts face extra layers: fire NOC, health licences and building use conditions may restrict how common areas are used, and a complaint to the licensing authority may achieve more than a civil suit.
Commercial buyers are not always 'consumers'. A unit bought for business purposes may fall outside the Consumer Protection Act unless it is used for earning a livelihood by self-employment, so the RERA authority or the civil court may be the better forum.
Land, villages and common pathways
On agricultural land and in villages, common areas are usually public or community land: chak roads, pathways, ponds, cremation grounds and grazing land. In UP these generally vest in the Gram Panchayat under the UP Revenue Code 2006, and unauthorised occupation can be removed by the Assistant Collector under section 67 of the Code on a report from the revenue staff. In Haryana, shamlat land is governed by the Punjab Village Common Lands (Regulation) Act 1961 as it applies in Haryana. In Delhi, gaon sabha land in rural villages falls under the Delhi Land Reforms Act 1954.
A private pathway shared by several plot holders is different. If the right of way comes from the sale deeds or long use, it is an easement, and the civil court is the forum for an injunction. Demarcation by the revenue authorities often comes first, because the dispute may really be about where the boundary lies. See easement rights cases and boundary disputes for those routes.
How to bring a common area dispute case
The order below fits most building disputes; land disputes follow the same logic with revenue records in place of the building plan.
Fix what the documents say
Collect the sanctioned plan, your deed, the buyer agreement, the deed of declaration or bye-laws, and any brochure that described the common areas. Mark the disputed area on the plan. Most cases are won or lost on this step.
Record the current position
Take dated photographs and video, note when the encroachment or sale started, and keep copies of notices, sale advertisements or society resolutions. If construction is ongoing, record each stage.
Write to the other side and the association
Send a written objection or legal notice to the builder, owner or society, asking them to stop and restore the area by a date. This creates a record and sometimes ends the matter. Keep the reply, or note that none came.
Choose the forum
Against the builder of a registered project: RERA or the consumer commission. Against another owner: civil court, with a parallel municipal complaint if the construction is unauthorised. Society management disputes: Registrar. Village common land: revenue authorities.
File with an application for interim relief
Ask for a stay on construction, sale or change of use while the case is pending. Courts and authorities are more willing to preserve the position early than to order demolition later. Ask for a local commissioner if facts on the ground are disputed.
Follow through to restoration
An order in your favour must be implemented. That may need an execution application in the civil court, a recovery or compliance application before RERA, or a follow-up with the municipal authority to carry out demolition or sealing.
Interim relief and the evidence that matters
Interim relief is the turning point in most common area cases. If an owner has started building on the terrace, a temporary injunction within the first few weeks stops it at a stage where the court can still order removal at trial. If the structure is complete before you act, the court may hesitate to order demolition at an interim stage and the case becomes slower and harder. The court weighs a prima facie case, balance of convenience and irreparable harm under Order 39 of the CPC.
The evidence that persuades is documentary: the sanctioned plan showing the area as common, the deeds, the builder's brochure and allotment letter, and photographs proving when the change happened. A local commissioner's report is useful where the facts on the ground are contested. Oral evidence from neighbours helps but rarely carries the case alone.
Mandatory injunctions at the interim stage are granted only in clear cases, such as where a common staircase or fire exit has been blocked and safety is at risk, or where a party has rushed construction after notice. Our page on suits for mandatory injunction explains that standard.
Time limits, cost and how long it takes
Encroachment on a common area is usually a continuing wrong, so limitation for an injunction suit restarts each day the wrong continues. That does not mean delay is harmless. Courts and authorities look at whether you objected promptly, and a structure that has stood unchallenged for years with everyone's knowledge is much harder to remove. A suit for declaration has a three year limit under Article 58 of the Limitation Act, and a consumer complaint must be filed within two years of the cause of action.
Costs depend on the forum and the stage reached. A RERA complaint involves a modest filing fee and is often decided faster than a civil suit. A civil suit for injunction carries court fee depending on how the relief is valued and may run for several years if fully contested. A consumer complaint has fees based on the amount claimed. Mediation, where both sides agree, is the cheapest and quickest route. No honest lawyer can promise a date for the final order, because adjournments, appeals and compliance all add time.
How the case changes by party
A bank may be involved where the builder mortgaged the project land, including common areas, to raise finance. If the bank enforces its security under SARFAESI, allottees and the association may need to protect their rights in the common areas before the DRT. A bank that has financed an individual flat has an interest in the common area rights attached to that flat and may need to be told of a major dispute.
An NRI owner can authorise a family member or the association to act through a power of attorney, and most RERA and consumer proceedings can be handled with minimal personal appearance. A company or LLP owning units in a commercial complex should check whether it is a 'consumer' and whether its agreement has an arbitration clause. A cooperative society as a party must act through a valid resolution of its managing committee, and members suing the society must check whether the cooperative law bars the civil court.
A builder facing a common area complaint should check the sanctioned plan, the RERA registration documents and the consent obtained for any change before replying. Where the builder has genuinely retained rights under the sanctioned plan, the reply should say so clearly with documents.
Mistakes that weaken a common area case
- Waiting until construction is complete. Courts are far more willing to stop a structure than to demolish one.
- Suing without the sanctioned plan. Without a plan showing the area as common, the case rests on assertions.
- Wrong forum. Filing a civil suit against a cooperative society on a matter the cooperative Act sends to the Registrar can waste a year.
- Individual complaints for a common grievance. Where the whole building is affected, an association complaint or a group complaint carries more weight.
- Self-help. Breaking locks or walls exposes you to criminal complaints under the BNS and undermines your civil case.
- Ignoring compliance. An order is only useful if it is enforced; plan for execution from the start.
A made-up example: a terrace and an open parking slot
Here's a made-up example. In a RERA registered group housing project in Noida, the builder sells the open parking area in front of one tower as 'reserved parking' to buyers of the higher floors, and gives the top floor buyer a key to the tower terrace. Residents of the lower floors find they cannot park near the tower and that the terrace, which holds the water tanks, is locked.
The apartment owners' association writes to the builder, citing section 2(n) and section 14 of the RERA Act and the sanctioned plan showing both areas as common. When the builder does not reply, the association files a complaint before UP RERA with the plan, the allotment letters showing parking charges and photographs. The authority directs the builder to stop selling open slots and to restore the terrace as common, and leaves the question of refund to individual buyers who paid for open slots. The top floor buyer, who was not party to the original sale, files his own claim against the builder for the amount he paid. Everyone keeps the order and the plan for future disputes.
Checklist before filing a common area dispute case
- Sanctioned building plan or layout plan with the disputed area marked
- Your sale deed, conveyance deed or allotment letter and buyer agreement
- Deed of declaration, society bye-laws or association rules
- RERA registration details and project documents, if applicable
- Builder's brochure or advertisement describing the common areas
- Dated photographs and video showing the change
- Copies of letters, notices and replies with the builder, owner or society
- Minutes or resolutions of the association or society on the issue
- Names of other owners willing to support or join the case
- Municipal or authority complaints already filed, with acknowledgements
What to do this week
If construction or a sale is happening now, take photographs today and send a written objection to the builder, owner or society. If construction continues after that, move for an interim injunction or a stay before the authority without waiting. If the issue is long-standing, gather the plan and deeds and decide, with other owners, whether to act through the association.
In common area cases that reach Advocate B.K. Singh's office, the weak point is usually the absence of the sanctioned plan or a delay of months after the problem was first noticed. Both can be fixed: the plan can be obtained from the authority's records, and a prompt notice now restarts the clock of objection. Related services include encroachment removal and injunctions against interference.
If you want the papers checked before you act, the team of Advocate B.K. Singh at Legals365 can review them and tell you the next step: talk to a lawyer.
Residential property: what changes
Residential property covers houses, builder floors, flats in group housing societies and apartments in developer projects. It is the property people care about most, and the law gives it more protection than commercial premises: consumer remedies against builders, rent control for old tenancies, special rules for senior citizens and family members. It also carries more family disputes than any other kind of asset.
The documents depend on the type. For an independent house or builder floor in Delhi, ask for the chain of sale deeds or the conveyance deed from DDA, the sanctioned building plan, the completion certificate, mutation in MCD records, the latest property tax receipt and electricity and water bills. For a flat in a cooperative group housing society, ownership runs through membership: the share certificate, the society's NOC and the Registrar of Cooperative Societies' approval of the transfer matter as much as the deed. For a flat in a developer project in Noida, Greater Noida or Gurugram, check the RERA registration, the builder-buyer agreement, the occupancy certificate, the tripartite sub-lease or conveyance deed, and whether the builder has paid the land dues to the authority, since unpaid dues have held up registration for thousands of buyers.
Stamp duty is charged on the higher of the price and the circle rate. Delhi charges women buyers a lower rate, and joint purchases fall in between; Uttar Pradesh and Haryana have their own concessions. Registration is at the sub-registrar office for the area, with both parties and two witnesses present. After registration, mutation in the municipal or authority record should be applied for, since it governs property tax and later dealings, even though mutation is not proof of title.
Disputes tend to fall into a few groups. Against builders: delayed possession, reduced area, poor construction and missing amenities, which go to the RERA authority or the consumer commission at the buyer's choice. Between landlord and tenant: old tenancies with rent up to ₹3,500 a month in Delhi are governed by the Delhi Rent Control Act 1958, where eviction for the landlord's bona fide need under section 14(1)(e) is the usual route; newer tenancies are contractual and go to the civil court or the rent authority under any new tenancy law the state has adopted. Within families: partition, wills and succession, and disputes over who may live in the house. Senior citizens can approach the Maintenance Tribunal under the Maintenance and Welfare of Parents and Senior Citizens Act 2007, which in appropriate cases has ordered children to vacate a parent's house. A wife's right to reside in the shared household under the Domestic Violence Act 2005 can also affect who stays in a property.
A few habits prevent most problems. Never buy on a GPA and agreement to sell alone. Insist on the occupancy or completion certificate. Keep original documents safe and certified copies handy. And put family arrangements about a house in writing, ideally a registered partition or family settlement, before a death or a marriage breakdown turns them into litigation.
Frequently asked questions
Can a builder sell open parking in a society?
Not in a RERA registered project, because open parking areas are listed as common areas under section 2(n) of the RERA Act. Covered garages are treated differently. Buyers charged for open slots can raise the issue before RERA or the consumer commission.
Who owns the terrace in an apartment building?
Usually the terrace is a common area owned by all flat owners in proportion to their shares, unless the sanctioned plan and the deeds give exclusive rights to a particular flat such as a penthouse. The top floor owner cannot lock it or build on it without such rights. Check the deed and plan first.
Where do I file a complaint if my neighbour encroaches on the corridor?
File a civil suit for injunction in the civil court with jurisdiction over the property, with an application for temporary injunction. If the encroachment involves unauthorised construction, complain to the municipal body or development authority as well. The association should be informed and may join.
Can RERA decide a common area dispute between two flat owners?
Generally no. RERA deals with complaints against promoters, allottees and agents under the RERA Act. A dispute purely between two owners goes to the civil court, or to the society's dispute mechanism.
What can I do if the builder has not handed over common areas to the association?
Section 17 of the RERA Act requires the promoter to hand over common areas and documents to the association of allottees. The association can file a complaint before the state RERA authority asking for directions. Consumer commissions have also entertained such complaints as deficiency in service.
Can the society rent the terrace to a mobile tower company?
It depends on the bye-laws, a valid general body resolution and municipal permissions. Income from common areas belongs to all members and must be accounted for. Members can challenge an unauthorised lease before the Registrar or the civil court.
Is a common passage between plots a common area?
It may be a common area under the sale deeds, a public path, or a private easement acquired by long use. The answer decides the forum: civil court for an easement, revenue authorities for public land. Get demarcation done if the boundary is disputed.
How long does a common area dispute case take?
A RERA complaint is often decided within months to a year or so, while a fully contested civil suit can take several years. Interim relief can be granted within weeks if you move quickly. Mediation, where both sides agree, can end a dispute much faster.
Can I break the lock on the common terrace myself?
You should not. Self-help can lead to a criminal complaint and damages, even if the terrace is common. Use a notice, the association and, if needed, a court or authority order.
Can a commercial unit owner go to the consumer commission over common areas?
Only if the unit was bought for personal use or for earning a livelihood by self-employment. Units bought for business purposes may fall outside the Consumer Protection Act. The RERA authority, the civil court or arbitration under the agreement may be the right forum.
Is there a time limit for a common area encroachment case?
Encroachment is usually a continuing wrong, so limitation restarts while it continues, but delay weakens your case. Declaration suits have a three year limit, and consumer complaints must be filed within two years of the cause of action. Act as soon as you notice the problem.
Who should file the case, the association or individual owners?
Where the whole building is affected, a complaint by the association or a group of owners is stronger and shares the cost. Where only one owner is affected, that owner can file alone. Check that the association has passed a valid resolution before it files.
Should I go to RERA or the consumer commission against my builder?
You can choose either, as the Supreme Court held in Newtech Promoters v State of UP (2021), but not both for the same relief. RERA is often quicker for refund or delay interest under section 18; the consumer commission can also award compensation for deficiency in service. The choice depends on the amount, the relief you want and how far the project has progressed.
Can my son be evicted from my house if he harasses me?
In many cases, yes. The Maintenance Tribunal under the Senior Citizens Act 2007 has power to protect a parent's property and life, and courts have upheld eviction orders against children in suitable cases. The parent's ownership of the house and evidence of ill-treatment are the key facts.
Need help with Common Area Dispute Case For Residential Property? Send your papers or a short note of what has happened. An advocate from the team of Advocate B.K. Singh will read it and tell you the next step.
