Is your flat smaller than your agreement?

Every agreement for sale for a MahaRERA-registered project is meant to follow the model agreement MahaRERA publishes. Clause 1(g) of that model is the one that decides what happens when the built flat and the agreed flat do not match.

Four things in that clause are worth holding on to:

• The builder has to tell you. Confirming the final area is the promoter's job, after OC, in writing. You should not have to ask.
• The refund carries interest from the day you paid, not from the day the shortfall was found. The rate is the one in the Maharashtra RERA Rules: SBI's highest marginal cost of lending rate plus 2%.
• The rate is your agreement rate, per square metre of RERA carpet. It is not today's market rate and not a discounted “balcony rate”.
• It works both ways. A builder can also bill you for up to 3% more area. If a demand for “extra area” arrives at possession, it should come with the same measurement detail you would expect for a refund.

Take unit 101 at Royal Paradise, Warje: 645 sq ft of RERA carpet. On that project the money works out to about ₹11,700 per square foot of RERA carpet.

Twenty square feet is about the size of a single wardrobe niche. Nobody notices it by eye. That is exactly why the area has to be measured, not judged.

You need a laser distance meter (a basic one costs less than a dinner out), the sanctioned floor plan for your unit, and an hour on the day the flat is offered for possession, before furniture goes in.

1. Get the agreed figure in square metres. Your agreement states it. Multiply by 10.764 for square feet. Compare it with the apartment's carpet area on the project's MahaRERA page. The two should match.
2. Measure every room wall to wall, including passages and the kitchen. Measure at floor level in two places per wall and use the smaller reading.
3. Add the internal partition walls. RERA carpet includes them. Multiply each internal wall's thickness by its length. Walls on the boundary of your flat, facing outside, the corridor or a neighbour, are generally treated as external walls and are not added. If the builder treats them differently, ask them to say so in writing.
4. Leave out the balcony, the dry balcony, any open terrace, and any shaft or duct, even if it opens into your flat.
5. Compare. A gap of 1% or less is within what a tape and a plastered wall can account for. Above that, put it in writing to the builder and ask for their measurement sheet for your unit.

The Act does not say whether carpet area is measured on bare walls or finished, plastered walls. Ask the builder which they used. If the gap is worth a dispute, have an architect or chartered engineer measure the flat and give you a signed report. That report, not your phone notes, is what a hearing will rely on.

When the buyer won: the builder's own disclosure was the evidence

In Elanit George Jacobs v Reliance Construction Co. (Maharashtra Real Estate Appellate Tribunal, 9 November 2023), the agreement promised 1,210 sq ft of built-up area. When the promoter registered the project under RERA, it declared that same flat as 62.08 sq m of carpet area. The tribunal converted that to built-up area using the state stamp department's 1.2 factor, got about 802 sq ft, and ordered a refund of ₹42,48,595 for the 408 sq ft missing. Nobody had to send a surveyor. The promoter's own MahaRERA filing proved the shortfall.

When the buyer lost: comparing two different definitions

In Deepak Pande v Larsen & Toubro (MahaRERA, 17 August 2021), a buyer who booked under the old MOFA law and signed a RERA agreement claimed 57.6 sq ft was missing. MahaRERA found the difference came from MOFA counting balconies and RERA not counting them, and the agreement also allowed a 3% variation. The complaint was dismissed with costs. Our MOFA vs RERA guide explains why those numbers were never meant to match.

When the buyer lost: the brochure, not the agreement

MahaRERA has also refused refunds where an advertisement showed a bigger carpet area but the buyer signed a registered agreement stating the smaller one. What you can enforce is the figure in the agreement you signed. Check it before you sign, not at possession.

1. Ask the builder in writing for the final carpet area confirmation clause 1(g) requires, and for the measurement sheet of your unit.
2. Send your own measurement, or an architect's report, with the calculation: shortfall in square metres × agreement rate per square metre, plus interest from each payment date.
3. Ask for the refund within the 45 days the clause allows. Keep proof of delivery of everything you send.
4. If there is no refund, file a complaint with MahaRERA under section 31, online on Form A. MahaRERA's portal also offers its conciliation forum first, which can be quicker.

You do not have to refuse possession to keep the claim alive. Taking the keys and disputing the area are separate questions. Write down on the possession letter that you are taking possession “without prejudice to my claim on carpet area”.

Possession is also when the five-year defect liability period begins (clause 7.4 of the model agreement). Note every structural, workmanship or service defect on the same visit, in writing, with photographs. A dated list from your first day is worth more than a memory from year three.

We are a channel partner, not a promoter, and developers pay our fee. That is why we print the RERA carpet area for every unit, in a separate column from the balcony, before anyone signs. A buyer who knows the agreed figure at booking can check it at possession. Nothing here is legal advice. For a claim of any size, have an advocate read your agreement before you write to the builder.

Sources

• MahaRERA Model Form of Agreement for Sale, clauses 1(g), 4.1, 7.1 and 7.4: MahaRERA (PDF)
• Elanit George Jacobs v Reliance Construction Co., Appeal AT006000000041978, MahaREAT, 9 November 2023: order (PDF)
• Deepak Pande v Larsen & Toubro, MahaRERA, 17 August 2021: SCC Online summary
• Complaint filing under section 31: MahaRERA