Maharashtra, India · property

Can a Top Floor Flat Owner Claim Exclusive Terrace Rights in Maharashtra?

In Maharashtra, the common building terrace is legally an undivided common amenity belonging to all members of the housing society, not the personal property of the top-floor flat owner. Even if a promoter extracted a private premium or issued an allotment letter promising exclusive rooftop rights, such clauses are void under state real estate statutes and municipal fire safety regulations. Disputing an unlawful terrace takeover requires checking the sanctioned municipal plan, invoking society bye-laws, and pursuing structured statutory remedies.

The Legal Status of Rooftop Terraces in Maharashtra

In Maharashtra, developers frequently exploit flat purchasers by promising top-floor buyers exclusive access or private usage of the building's roof. However, statutory law strictly bars this practice. Under Section 2(n) of the Real Estate (Regulation and Development) Act, 2016 (RERA), terraces, staircases, and open roofs are explicitly classified as 'common areas'. Promoters have a non-negotiable legal obligation under Section 17 of RERA and Section 10 of the Maharashtra Ownership Flats Act, 1963 (MOFA) to convey all common areas to the Co-operative Housing Society (CHS) or Association of Allottees.

The Supreme Court of India settled this principle in 'Nahalchand Laloochand Pvt. Ltd. v. Panchali Co-operative Housing Society Ltd. (2010)', ruling that builders have no legal right to sell common open spaces or separate areas that are not defined standalone apartments. Similarly, in 'Ramagauri Keshavlal Virani v. Walkeshwar Triveni CHS Ltd.', the court affirmed that promoters cannot dispose of building terraces to individual flat owners. Unless a space is a non-rooftop, attached private pocket terrace specifically sanctioned under municipal building bylaws (where floor space index/FSI was lawfully consumed by the purchaser), the building's open terrace remains common property.

Any private agreement or unregistered memorandum of understanding (MoU) between a builder and a top-floor flat owner purporting to convey the general roof is legally void. It deprives the remaining owners of their statutory property shares and must not be treated as a valid title transfer.

Fire Safety Mandates and Housing Society Bye-Laws

Beyond property rights, locking a terrace poses a severe safety threat to everyone living below it. Under the Maharashtra Fire Prevention and Life Safety Measures Act, 2006, as well as local Development Control and Promotion Regulations (such as DCPR 2034 for Greater Mumbai and the Unified DCPR across Maharashtra), terrace access must remain unobstructed at all times for emergency evacuation, fire suppression systems, and essential maintenance access to overhead water reservoirs and lift machine rooms.

The Bombay High Court reaffirmed this principle decisively in 'Tasneem Dhariwala v. Municipal Corporation of Greater Mumbai (2013)'. In that case, the High Court rejected a top-floor owner's claim to an exclusive terrace based on builder allotment letters, penalized the encroaching resident, and affirmed municipal action to demolish unauthorized security grills blocking the terrace. The court emphasized that no resident can obstruct municipal bodies or other occupants from accessing an area vital for emergent evacuation.

Furthermore, under Model Bye-Laws 168 and 169 of the Maharashtra Co-operative Housing Societies, common terraces and parapet walls are defined as society property maintained at the collective expense of all members. An individual member cannot erect private gates, plant unauthorized roof gardens that cause structural leakage, or exclude other society members without inviting penal and administrative action.

Enforcing Your Collective Rights Against Encroachment

When an aggressive top-floor resident or a complicit developer attempts to gate off the roof, the housing society is not powerless. The first legal countermeasure is verifying the Brihanmumbai Municipal Corporation (BMC) or local planning authority's sanctioned building plan to confirm that the terrace is designated as a common amenity. If the top-floor owner has installed permanent locks or sheds, the society must issue a formal resolution and notice under the society bye-laws ordering immediate removal within a specified cure period.

If the resident fails to comply, the society can submit an unauthorized construction complaint under Sections 53 and 54 of the Maharashtra Regional and Town Planning Act, 1966 (MRTP Act) to the municipal ward office for summary removal of illegal barriers. Simultaneously, members can initiate a dispute under Section 91 of the Maharashtra Co-operative Societies Act, 1960 before the Co-operative Court to secure an injunction restraining the encroaching member from impeding access.

You can use Caunsel to research relevant high court precedents, securely store and organize your society's layout plans and correspondence within an active case file, or consult with an independent property lawyer to evaluate your exact remedies. Please note that Caunsel is not a law firm and does not file legal petitions or represent parties in court.

Steps

• Obtain the sanctioned architectural floor plan and the conveyance deed from your municipal planning authority (such as BMC, PMC, or CIDCO) to confirm that the roof is designated as a common terrace rather than a private attached terrace.
• Pass a formal Managing Committee resolution recording the illegal obstruction, citing Section 2(n) of RERA, fire safety regulations, and model society bye-laws.
• Serve a formal written legal notice to the top-floor resident requiring them to remove all locks, gates, or unauthorized installations and restore common access within seven days.
• Lodge a complaint with the local Municipal Ward Officer (Designated Officer under the MRTP Act) and the Chief Fire Officer reporting the dangerous obstruction of an emergency escape route.
• File a dispute before the Co-operative Court under Section 91 of the Maharashtra Co-operative Societies Act, 1960 to obtain an injunction and permanently restrain the owner from locking the terrace.

Common mistakes

• Assuming that a clause in the top-floor flat owner's sale agreement with the builder overrides statutory common area protections established by MOFA and RERA.
• Taking the law into your own hands by physically breaking padlocks or engaging in verbal altercations instead of pursuing municipal and co-operative remedies.
• Confusing an approved pocket balcony/terrace (lawfully purchased within the flat's sanctioned FSI) with the general rooftop terrace housing common utilities and fire exits.
• Allowing the top-floor flat owner to pay for localized roof waterproofing in exchange for informal, uncontested exclusive use of the terrace.

Questions people ask

What if the builder sold the terrace to the top-floor buyer in their registered agreement?

Under Maharashtra law, such clauses are null and void. The Supreme Court in the Nahalchand case and the Bombay High Court in Tasneem Dhariwala have ruled that promoters cannot sell common terraces or open spaces. The builder had no transferable title over common rooftop areas to begin with.

Can a housing society pass a general body resolution granting exclusive terrace rights to one resident?

No. A housing society cannot pass a resolution that violates municipal building approvals, the MRTP Act, or fire safety legislation. Because terraces serve as mandatory fire evacuation zones and house collective amenities like water tanks, granting exclusive possession to one flat owner is ultra vires and unlawful.

Who is responsible for repairing water leakage coming from the common terrace?

Under Bye-Law 160(a) of the Maharashtra Co-operative Housing Societies Model Bye-Laws, the society is legally obligated to carry out structural repairs and waterproofing of the building terrace at its own expense. A top-floor resident cannot claim ownership simply because their flat suffers leakage from the roof above.

General information only, last updated 2026-10-19. Caunsel is not a law firm and does not practise law. AI answers and this guide are not legal advice. Verify filings, deadlines, and statutes with a licensed lawyer in Maharashtra, India.