Legal Question in Real Estate Law in India

I am in the process of purchasing an 18 year old apartment in Tiruvanmiyur, Chennai. The apartment comes with an open terrace garden, roughly around 400 square feet. This terrace garden is an extension of the apartment. I am buying the apartment from the 2nd owner (The ownership changed from the 1st owner to the 2nd owner around 13 years ago). The terrace garden is not listed in the sale deed of the 2nd owner, but the terrace garden is mentioned in the construction agreement between the 1st owner and the builder / developer. In the construction agreement of the 1st owner there is a mention of the unregistered terrace garden through a mention of �open terrace with a reference to an attached drawing�. But this open terrace garden is not part of the approved plan by the relevant plan approving authority (CMDA / MMDA). The access to the terrace garden is through and from within the apartment

My query is

1. Does the owner(s) have title & legal rights to the open terrace garden in the apartment, especially the 3rd owner that is potentially purchasing the apartment, given that the open terrace garden is mentioned in the construction agreement of the 1st owner, but not mentioned in the sale deed when the 1st owner sold the apartment to the 2nd owner

2. If I decide to purchase this apartment, can I include the open terrace garden in my sale deed and will it be legally valid as the previous sale deed does not mention the open terrace garden and will I as the new purchaser have title rights to the open terrace garden

I shall appreciate hearing back from experts on my query

Regards

P S Krishnan

Chennai

India

1 Answer from Attorneys

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