Terrace Rights in an Apartment or Builder Floor: Who Owns the Roof
In an apartment building the main roof terrace is a common area owned by all the flat owners together: RERA section 2(n) lists "terraces" among common areas. A builder can sell you an exclusive terrace attached to your flat if the plan and agreement disclose and price it, but not the building's roof. In a builder floor, roof rights exist only if your registered deed grants them.
Key takeaways
- RERA section 2(n) names terraces as common areas, alongside staircases, lifts, basements and open parking.
- Carpet area under section 2(k) excludes an "exclusive open terrace", which a builder may sell as a separate, disclosed line.
- Under MOFA, the Bombay High Court held in 1999 that a promoter cannot sell the building's terrace.
- Enclosing a terrace without sanction invites demolition, as a July 2026 Bombay High Court order shows.
- Rent from a tower or hoarding on a common roof belongs to the society and is taxable income.
What the law says about terraces
RERA: terraces are common areas
The Real Estate (Regulation and Development) Act, 2016 defines common areas in section 2(n) to include the whole project land, staircases, lifts and lobbies, fire escapes, and "the common basements, terraces, parks, play areas, open parking areas and common storage spaces". They pass to the association of allottees; see forming an RWA and taking over from the builder.
The same Act carves out a private terrace. Section 2(k) defines carpet area as the net usable floor area of the flat, excluding "exclusive balcony or verandah area and exclusive open terrace area". So a terrace that belongs to one flat, shown as such in the plan and agreement, is lawful; MahaRERA's model agreement has a separate price line for it. Turning the shared roof into a private asset is not.
State apartment ownership acts
State apartment ownership laws say the same in older language. Section 3 of the Haryana Apartment Ownership Act, 1983 lists "main walls, roofs, halls, corridors" among common areas and facilities, "unless otherwise provided in the declaration"; the Karnataka Act of 1972 follows the same model. If the building's declaration allotted a terrace to one apartment, that binds everyone. If not, the roof is shared.
Maharashtra: MOFA and the co-operative society
In Ramagauri Keshavlal Virani v. Om Walkeshwar Triveni Co-op Housing Society, decided on 5 July 1999 in writ petition 4577 of 1985, the Bombay High Court held that no provision of the Maharashtra Ownership of Flats Act, 1963 authorises a promoter to sell the building's terrace, and that "flat" under section 2 does not include it. In Nahalchand Laloochand v. Panchali Co-operative Housing Society (31 August 2010), the Supreme Court held stilt parking is not a "flat" but a common area, reasoning applied to terraces too (see hidden charges and society parking rules).
The exception is a terrace the builder genuinely reserved and assigned. In Dr. Ramesh Chunilal Hansoti v. Hansoti Co-operative Housing Society (2017(3) ALL MR 753), the agreements let the builder reserve terraces not needed for common use. The society still won, because the promoter had never actually assigned those terraces to the occupants. A reservation clause needs a valid transfer behind it.
Exclusive terrace, common roof and roof rights compared
| Type | Who owns or uses it | How it is created | What to check |
|---|---|---|---|
| Common roof terrace (apartment tower) | All owners jointly, through the society or association | By law: RERA s.2(n), state apartment acts, MOFA | Nobody holds an allotment of it; access is open, and fire escape routes reach it |
| Exclusive open terrace attached to a flat | One flat owner, for exclusive use | Shown in the sanctioned plan and priced in the sale agreement | Area and price as a separate line; no enclosure allowed without sanction |
| Roof rights in a builder floor | Usually the top-floor owner, if the deed grants them | Written into the registered sale deed or collaboration agreement | Exact wording: use only, or a right to build; lower-floor owners' consent |
| Terrace informally used by a top-floor owner | Still common | Nothing: long use does not create ownership | A general-body resolution, if any, and its terms |
Builder floors and top-floor roof rights
In a low-rise building each floor is a separate unit with an undivided share in the plot, and "roof rights" often go with the top floor. They exist only if the registered deed or collaboration agreement grants them; without that document, lower-floor owners can challenge the claim.
Read the words closely. "Right to use the terrace" is not the same as "roof rights including the right to construct", and neither beats a sanctioned plan allowing no further floor. In Gurgaon's stilt-plus-four floors and DDJAY independent floors, the top-floor terrace sells, but holds value on resale only if the deed spells it out. The floor and roof split is set in the builder collaboration agreement; read it before paying a top-floor premium.
Enclosures, sheds and demolition
Roofing over a terrace usually needs fresh sanction, because the area then counts towards permitted floor space. In Ravindra Kini v. Panvel Municipal Corporation, a division bench of Justices A.S. Gadkari and Kamal Khata of the Bombay High Court found that a flat owner in Kalamboli had enclosed open-to-sky terraces with brick walls and tin sheets and built a room of about 800 sq ft. In its July 2026 order the court directed immediate demolition and rejected the argument that similar violations elsewhere in the building excused this one. It also asked the state to frame rules on which alterations need permission.
Delhi's Unified Building Bye-Laws, 2016 allow pergolas no higher than the mumty (at most 3 m above the terrace), a terrace toilet of up to 4 sq m outside FAR, and solar panels that do not count towards height. A room is not on that list. Buying a flat with an enclosed terrace? Ask whether it was sanctioned, or you inherit the demolition risk.
Who earns from the roof: towers, solar and hoardings
Mobile towers and hoardings
Rent from a telecom tower or hoarding on a common roof belongs to the society, not the builder or the top-floor owner, and the general body, not the committee alone, decides. Maharashtra's model bye-laws allow terrace hoardings only on terms the general body approves. In Mumbai a structural stability certificate and the society's consent go into the municipal file; a draft civic policy spoke of 70% resident consent and two towers per terrace at most, so check the current rule with your ward office.
Rooftop solar for common areas
Under PM Surya Ghar: Muft Bijli Yojana, a group housing society or RWA can get central assistance of Rs 18,000 per kW for a rooftop plant serving common facilities such as lifts, lighting, pumps and EV charging. Support is capped at 500 kW and at 3 kW per house in the complex, and that cap includes plants individual residents have put up.
Worked example: a tower lease in an 80-flat society
One market survey puts rooftop tower rents at roughly Rs 15,000 to Rs 35,000 a month in most towns, more on prime city roofs. Assume an 80-flat society accepts Rs 30,000 a month:
- Annual rent: Rs 30,000 x 12 = Rs 3,60,000.
- It is taxed as income from house property, with the 30% standard deduction: Rs 3,60,000 x 30% = Rs 1,08,000, leaving Rs 2,52,000 taxable in the society's hands.
- Across 80 flats that is Rs 4,500 per flat a year, usually used to cut maintenance.
- Rent from an outsider gets no mutuality shelter and can attract GST; take tax advice first.
On solar, the same society's cap is 80 x 3 kW = 240 kW, and a 50 kW plant draws 50 x Rs 18,000 = Rs 9,00,000.
Where terrace claims go wrong
- Long use is not ownership. Years of holding the terrace key give no title, and a resolution granting exclusive use can be withdrawn.
- Locking the roof. Fire codes run the escape staircase up to the terrace; a padlocked door is a safety breach.
- Leakage. Ask for waterproofing records before buying a flat with a terrace.
- Redevelopment. In a redevelopment, a private claim on the roof can hold up the whole project.
- Paying for what the builder cannot sell. If you paid for the building's terrace, the society can challenge it and your money becomes a claim against the builder.
Frequently asked questions
Can a builder sell the terrace of an apartment building?
Not the building's main roof. RERA section 2(n) lists terraces as common areas, and the Bombay High Court held in 1999 that MOFA gives a promoter no power to sell a building's terrace. A builder can sell an exclusive open terrace attached to one flat if the sanctioned plan and the agreement show it with its area and price. Anything beyond that is open to challenge by the society.
Does the top-floor flat owner own the terrace?
Not automatically. In an apartment tower, living directly under the roof gives no ownership of it. In a builder floor, the top floor gets roof rights only if the registered sale deed grants them in writing. Years of informal use, or holding the only key, do not create title, and a society resolution allowing exclusive use can later be revoked.
Can I cover my exclusive terrace with a shed or glass roof?
Only with municipal sanction, and usually the society's consent too. A roofed terrace can count towards floor area, which the plot may not have to spare. In July 2026 the Bombay High Court ordered sheds over enclosed terraces in a Kalamboli flat demolished, and asked the state to frame clear rules on lightweight covers. Unsanctioned enclosures are the first thing a buyer's lawyer will flag.
Who gets the rent from a mobile tower on our roof?
The society or association, because the roof is a common area. The general body should approve the lease, the municipality needs a structural stability certificate, and the rent is taxable as income from house property after a 30% standard deduction. Since it comes from an outsider, it can attract GST as well, so get a tax adviser to look at the society's position.
Is there a subsidy for solar panels on a society terrace?
Yes. PM Surya Ghar gives group housing societies and RWAs Rs 18,000 per kW for rooftop plants serving common facilities, including EV charging. It is capped at 500 kW and at 3 kW per house, counting plants residents installed themselves. For an 80-flat society the cap works out to 240 kW, so a 50 kW plant would draw Rs 9 lakh.
If a terrace or roof right is part of the price you are being asked to pay, Realty Hunting can help you read the deed and the plan before you commit.
