People save their whole lives to buy a house of their own. Most of the time, they book a flat when the site is not even developed. Sometimes, the site is under construction, and the flats are delivered after considerable time. Many times, there are defects in the flat which has been handed over by the builder to the buyer.

The buyer normally approaches the builder and asks him to rectify the defects. In case, the builder does not rectify the defects, or does not attend to the complaint of the buyer, the buyer feels cheated. We will discuss what option is available to the buyer under the law.

Remedy in RERA?

Real Estate (Regulation and Development) Act (in short RERA) was enacted to enhance accountability and transparency with respect to housing transactions and real estate. The RERA provides remedies for builder-buyer disputes have nearly covers all type of issues. The RERA pointedly provides for remedy when the buyer is sold a flat which has defects or in which the defects are developed within specified period.

What is a defect?

As per Black's Law Dictionary a defect is "an imperfection or shortcoming, esp. in a part that is essential to the operation or safety of a product. The RERA further classifies the defects as follows:

• Structural defect
• Defect in workmanship
• Defect in quality of service
• Defect in provision of service
• Defect in any other obligations of the promoter as per the agreement for sale

Thus, any shortcoming which pertains to civil structure of the unit sold to the buyer, or any defect which is about poor workmanship, or about deficiency in any "service" or in quality of service provided will be termed as defect. Also, whatever the builder agreed to provide in Builder-Buyer agreement but has failed to provide, will also be deemed as defect.

As per Haryana Real Estate (Regulation and Development) Rules 2017, also known as HRERA Rules, the structure defect is defined in section 2(u) as

"structural defects" means actual physical damage/ defects to the designated load-bearing elements of the building, apartment or unit like faults, breakage or cracks, appearing over time in elements such as load bearing columns, walls, slabs, beams etc. which can affect the strength and stability of the apartment or the building and shall include any of the following, namely:

1. defects due to design attributes of reinforced cement concrete (RCC) or structural mild steel (MS) elements of an engineered (structurally designed) building structure;
2. defects due to faulty or bad workmanship of RCC or MS work;
3. defects due to materials used in such RCC or MS work;
4. major cracks in masonry work that are induced as result of failures of RCC or MS work;
5. any defect which is established to have occurred on account of negligence, use of inferior materials or non-adherence to the regulatory codes of practice by the promoter.

Explanation:
The promoter shall not be liable for any such 3 structural/ architectural defect induced by the allottee, by means of carrying out structural or architectural changes from the original specifications/ design.

Buyer's remedy in case of a defect

The RERA provides remedy to the buyer in two sections namely section 11(4) and section 14(3). The section 11(4) is more general in nature whereas the section 14(3) is exclusive to defects. In Haryana, the Government vide section 12 of HRERA rules, provided express relief to buyer. These sections are read out as under:

Section 11(4)
The promotor shall be responsible for all obligations, responsibilities and functions thereunder or to the allottees as per the agreement for sale, or to the association of allottees, as the case may be, till the conveyance of all the apartments, plots or buildings, as the case may be, to the allottees, or the common areas to the association of allottees or the common areas to the association of allottees or the competent authority, as the case may be:

Provided that the responsibility of the promoter, with respect to the structural defect or any other defect for such period as is refereed to in subsection (3) of section 14, shall continue even after the sale deed of the apartments, plots or buildings as the case may be, to the allottees are executed.

Section 14(3)
In case any structural defect or any other defect in workmanship, quality or provision of services or any other obligations of the promoter as per the agreement for sale relating to such development is brought to the notice of the promoter within a period of five years by the allottee from the date of handing over possession.

It shall be the duty of the promoter to rectify such defects without further charge, within thirty days, and in the event of promoter's failure to rectify such defects within such time, the aggrieved allottees shall be entitled to receive appropriate compensation in the manner as provided under this Act.

Section 12 of Haryana RERA Rules
Defect Liability:
It is agreed that in case any structural defect or any other defect in workmanship, quality or provision of services or any other obligations of the Promoter as per the agreement for sale relating to such development is brought to the notice of the Promoter within a period of 5 (five) years by the Allottee from the date of handing over possession.

It shall be the duty of the Promoter to rectify such defects without further charge, within ninety days, and in the event of Promoter's failure to rectify such defects within such time, the aggrieved Allottees shall be entitled to receive appropriate compensation in the manner as provided under the Act.

Provided that, the promoter shall not be liable for any such structural/ architectural defect induced by the allottee(s), by means of carrying out structural or architectural changes from the original specifications/ design.

The timeline for complaint to builder
The complaint must be made by the buyer to the builder within 5 years. As the act provides relief to the buyer if the defects are intimated to the builder within the period of 5 years.

This intimation must be given in writing. It is a normal established practice that such intimation is given through the counsel who uses medium of email or speed post. The receipt and tracking report of the speed post is retained and is a necessary document in further action.

Remedy available
The builder shall rectify the defects within 90 days of receipt of the complaint. However in case the builder doesn't rectify the defects in the stipulated period, buyer can file a case against the builder in RERA for seeking compensation and interest thereon. The case for compensation is to be filed in prescribed form and with requisite fees.

In Haryana, the complaint is filed with the adjudicating officer for interest and compensation as provided under sections 12, 14, 18 and 19 for the RERA Rules in Form 'CAO', in triplicate, which shall be accompanied by a fee as mentioned in Schedule III in the form of a demand draft or a bankers cheque drawn on a Scheduled bank in favour of "Haryana Real Estate Regulatory Authority" and payable at the branch of that bank at the station where the seat of the said Authority is situated.

The adjudicating officer shall for the purposes of adjudging interest and compensation follow summary procedure for inquiry

Exception
A buyer can avail this remedy only if the buyer has not induced any such structural/ architectural defect by means of carrying out structural or architectural changes from the original specifications/ design.

Conclusion
No builder can take advantage of an innocent buyer who has put in his hard earned money to buy a dwelling for himself. Gone are the times when builders would use subpar and low quality materials to earn massive profits and would leave the harassed buyer to fend for himself.

The buyer would run pillar to post to get his house repaired let alone compensation from buyer. The RERA act has changed everything. The buyer can approach the RERA to get compensation in case the buyer defaults on getting the house repaired.