Can I File RERA Complaint for a Project Started Before 2017?

A lot of the buyers who come to us booked their flats in 2010, 2012 or 2014. RERA didn't exist then. The builder-buyer agreement was the builder's standard form, with a delay penalty of a few rupees per square foot and a long list of reasons why the builder couldn't be blamed for anything. When they hear about RERA, the first question is a natural one: does a law that came into force in 2017 help me with a flat I booked years before?

For many buyers the answer is yes. RERA was written to cover projects that were still under way when it started, and the Supreme Court has confirmed that buyers in those projects can use it. But not every old project qualifies, and the details of your project's status in 2017 matter. This guide explains the rule, the leading cases, the projects that fall outside, and what to do if yours is one of them.

When RERA started

The Real Estate (Regulation and Development) Act was passed in 2016. A few sections came into force on 1 May 2016, mainly those setting up the authorities. The rest of the Act, including the sections on registration, the builder's duties and buyers' remedies, came into force on 1 May 2017. That date matters in two ways. It's when the duty to register projects started, and it's the cut-off for working out which older projects were "ongoing".

States had to make their own rules and set up their own authorities, and some were slow. In a few states the authority wasn't working until well after 2017. But the Act itself applied from 1 May 2017 across the country, whatever stage the state machinery was at.

Ongoing projects must register

Section 3(1) of the Act says no promoter can advertise, market, book or sell any unit in a real estate project without registering it with RERA. The first proviso adds that projects which were ongoing on the date the Act commenced, and for which a completion certificate had not been issued, must apply for registration within three months of that date.

So the basic test is simple: was the project still incomplete, without a completion certificate, on 1 May 2017? If yes, it was an ongoing project, it should have been registered, and RERA applies to it. If the project already had its completion certificate by then, it generally isn't covered.

Two points often get missed.

• Phases count separately. The explanation to Section 3 says that where a project is developed in phases, each phase is treated as a separate project. So a township where Phase 1 was completed in 2015 and Phase 2 was still being built in 2017 would have Phase 2 as an ongoing project, even though the township "started" years before.
• The test is completion, not the start date or the booking date. It doesn't matter that you booked in 2011 or that construction began in 2009. What matters is whether the project was complete in 2017.

You can usually check this on your state RERA website. If the project is registered, its page will show the registration date and often the original start date, which tells you it was treated as ongoing. Our guide on checking RERA registration explains how to look it up.

What the courts decided

Neelkamal Realtors (Bombay High Court, 2017)

Soon after RERA came in, builders in Maharashtra challenged it, arguing among other things that applying it to projects already under way was unfairly retrospective. In Neelkamal Realtors Suburban Pvt Ltd v. Union of India (2017), the Bombay High Court upheld the Act. It described RERA's effect on ongoing projects as retroactive rather than retrospective: the law doesn't reopen what was finished before it, but it does govern the future conduct of projects that were still going on when it arrived. Parliament was entitled to do that, the court said, given the problems buyers had faced.

Newtech Promoters (Supreme Court, 2021)

The Supreme Court settled the point in Newtech Promoters and Developers Pvt Ltd v. State of UP (2021). The court held that RERA applies to ongoing projects, that a buyer in an ongoing project can file a complaint under Section 31, and that the right to a refund with interest under Section 18 is available to such buyers even where the agreement was signed before RERA. It described the refund right as unconditional: if the builder fails to give possession as agreed, the buyer can withdraw and get the money back with interest, whatever the reason for the delay, and that right doesn't depend on unforeseen events or stay orders, which aren't attributable to the buyer.

Newtech also confirmed that the regulatory authority itself can decide refund and interest claims, and that compensation claims go to the adjudicating officer. And it upheld the requirement in Section 43(5) that a builder appealing against an order to pay a buyer must first deposit the amount. These points apply equally to old and new projects.

What RERA can do for an old project

If your project was ongoing in 2017, you can generally use the same remedies as someone who booked in 2020.

• Refund with interest under Section 18 if possession is delayed and you want out. See refund with interest.
• Delay interest for every month of delay, if you want to stay. See delay interest.
• Compensation for losses before the adjudicating officer.
• Directions on defects, conveyance, amenities, illegal charges, and the other duties the Act puts on builders.
• Recovery of amounts awarded, through a recovery certificate.

The interest rate RERA awards is generally the rate prescribed in the state rules, usually linked to SBI's marginal cost of lending rate plus 2%. It's far more than the token compensation in most pre-RERA agreements, which typically promised Rs 5 or Rs 10 per square foot per month. Authorities have usually refused to limit buyers to those clauses. The Supreme Court has also said, in Pioneer Urban Land and Infrastructure Ltd v. Govindan Raghavan (2019), that one-sided terms in builder agreements that heavily favour the builder can be treated as unfair and not binding on the buyer. Our guide on RERA interest explains the calculation.

From when does delay interest run?

This is where old projects throw up their own questions. If your agreement promised possession in 2014, is delay interest payable from 2014, or only from 1 May 2017? Most authorities in NCR have awarded interest from the due date in the agreement, on the basis that the builder's obligation to compensate for delay continues and RERA governs how it's enforced now. Some builders have argued for the later date, with mixed results. The answer can depend on the authority, the agreement and the arguments made, so treat it as a live point and take advice. It can make a large difference to the amount.

What about the agreement's other terms?

The pre-RERA agreement still matters. The possession date, the price, the payment plan and the specifications in it are what the builder has to deliver. What RERA changes is the remedy for failing to deliver, and the extent to which one-sided terms can be enforced against you. Clauses that let the builder extend the possession date at will, forfeit large sums on cancellation, or pay you nominal compensation are commonly not enforced as written.

Projects that fall outside RERA

Projects completed before 1 May 2017

If the completion certificate was issued before 1 May 2017, the project wasn't ongoing, and RERA generally doesn't apply. That's the case even if you took possession later, or if the builder still owes you something. The question is the project's status on the commencement date, not yours.

There are grey areas. What if the builder applied for a completion certificate before May 2017 but got it later? What if part of a tower was certified and part wasn't? What if the certificate was issued but the amenities weren't built? These depend on the wording of the state rules and how the authority reads them.

State rules on "ongoing projects"

Several states defined "ongoing project" in their rules in ways that excluded more projects than the Act seems to. Some, for instance, left out projects where the builder had merely applied for the completion or occupancy certificate before a certain date, or where possession had already been handed over to most buyers. Some of these state definitions have been challenged in court, and in some places the authorities have read them narrowly in favour of buyers. If the builder says your project isn't covered because of a state rule, don't accept that at face value. Look at the rule, and look at how your state authority and tribunal have applied it.

Small projects

Section 3(2) exempts projects where the land is no more than 500 square metres, or the number of units doesn't exceed eight, including all phases. States can lower these thresholds. Small builder-floor projects often fall in this exemption, old or new.

West Bengal

West Bengal tried to run its own housing law, WBHIRA, instead of RERA. The Supreme Court struck it down in Forum for People's Collective Efforts v. State of West Bengal (2021) as repugnant to RERA. Buyers in Bengal are now under the central Act and the West Bengal RERA. If you were told your old Bengal project was "under WBHIRA, not RERA", that position has changed, and it's worth checking where your project stands now.

If RERA doesn't apply

A project being outside RERA doesn't leave you without a remedy. It just means you need a different forum.

• Consumer commission. The Consumer Protection Act, 2019 covers buyers of housing for their own use, old projects included. Consumer commissions have long awarded refunds, interest and compensation for delayed or defective flats, and the leading Supreme Court cases on builder delay, such as Pioneer and Arifur Rahman Khan v. DLF Southern Homes (2020), came through consumer courts. The limitation period is two years from the cause of action, though in delay cases a continuing failure to deliver can keep the cause of action alive. See consumer court against builder.
• Civil suit. For claims based purely on contract, for example where you aren't a "consumer" because you bought for investment, a civil suit for recovery or specific performance is possible, within the three-year limitation for most such claims.
• Insolvency. If the builder has defaulted and the project is stalled, the insolvency route may be available, subject to the threshold for home buyers. See builder insolvency.
• Criminal complaints, where the facts suggest cheating or misappropriation, though these are about punishment rather than getting your money back.

Our guide on RERA or consumer court compares the two main forums in detail.

If you already have a consumer case

Many buyers in old projects filed consumer complaints before RERA started, or before they knew about it. Section 88 of RERA says its provisions are in addition to, not in derogation of, other laws. Section 79 bars civil courts from hearing matters RERA deals with, but consumer commissions aren't civil courts for this purpose. The Supreme Court confirmed in Imperia Structures Ltd v. Anil Patni (2020) that a buyer can choose to go to a consumer commission even for a RERA-registered project, and that a consumer complaint doesn't become invalid because RERA also applies.

What you shouldn't do is run two cases for the same relief at the same time. If you've filed in consumer court and want to move to RERA, you'll usually need to withdraw the consumer complaint, and the authority may want to see that you have. Think carefully before switching. A consumer case that's well advanced may be worth finishing.

If the project was ongoing but never registered

Some builders simply didn't register their ongoing projects, either because they thought they were exempt or because they hoped nobody would notice. That's a breach of Section 3, and Section 59 allows a penalty of up to 10% of the estimated project cost, rising to imprisonment for continued breach. Importantly for you, the builder's failure to register doesn't take the project outside RERA. Authorities generally accept complaints from buyers in unregistered ongoing projects and can direct registration as well. See unregistered projects.

A worked example

Here's a made-up example. Sunita booked a flat in a Ghaziabad project in 2012. The agreement promised possession by 2015, with compensation of Rs 5 per square foot per month for delay. By May 2017, two of the project's four towers had a completion certificate. Hers, Tower C, didn't. The builder registered Towers C and D with UP RERA in 2017 as an ongoing phase.

In 2021 there's still no possession. Sunita files a RERA complaint for a refund. The builder argues that the project began in 2011, that RERA can't apply to an agreement signed in 2012, and that in any case she's limited to the Rs 5 per square foot clause. The authority rejects all three arguments, relying on Newtech: Tower C was an ongoing project in 2017, the refund right under Section 18 is available, and the nominal compensation clause doesn't cap her claim. It orders a refund with interest at the prescribed rate from each date of payment.

Her neighbour in Tower A, which was certified in 2016, has a dispute about missing amenities. RERA isn't available to him, so he files a consumer complaint instead.

If you bought the booking from someone else

Old projects have often changed hands. The original allottee sold the booking, with the builder's endorsement, to a second or even a third buyer. Builders sometimes argue that a later purchaser can't claim delay interest for the years before the transfer, because he knew the project was late when he bought. The Supreme Court rejected a blanket version of that argument in Laureate Buildwell Pvt Ltd v. Charanjeet Singh (2021), holding that a subsequent purchaser steps into the original buyer's shoes and isn't automatically barred from compensation for delay. How far back the claim goes can still depend on the facts, including when the transfer happened and whether the possession date had already passed. Keep the endorsement letter and the original buyer's receipts, and raise the point in your complaint.

What you should do

1. Find out the project's status in May 2017. Look up the RERA registration, the registration date and any completion or occupancy certificate. Ask the builder in writing if needed.
2. Identify your phase or tower, and check whether it was registered separately.
3. Read your agreement for the possession date, delay clause and any force majeure clause. Our guide on force majeure covers the excuses builders commonly rely on.
4. Collect your documents: agreement, receipts, letters, possession offers.
5. Decide whether you want the flat or a refund.
6. Choose the forum: RERA if the project was ongoing, consumer commission or civil court if it wasn't, or if the consumer route suits you better.
7. File without further delay. Old projects have old builders, and some of them are running short of money. The sooner you have an order, the better your chances of recovering it.

Arguments builders make, and how they usually go

"The agreement was signed before RERA, so RERA can't apply."

This argument has been rejected repeatedly, most clearly in Newtech. If the project was ongoing in 2017, RERA applies to it, whenever the agreement was signed.

"The buyer agreed to the compensation clause."

Buyers had little choice about standard-form agreements, and courts know it. One-sided clauses are often not enforced as written, and RERA's prescribed interest usually applies instead.

"The delay was caused by approvals, stay orders or the economy."

For a refund under Section 18, Newtech described the right as unconditional. For delay interest and compensation, builders sometimes succeed in excluding specific periods where a genuine force majeure event, such as a court-ordered construction ban, is proved. General claims of slow markets or labour shortages rarely succeed.

"The buyer waited too long."

RERA doesn't have a fixed limitation period, and the continuing failure to deliver possession is usually treated as a continuing wrong. But delay can still affect what's fair, for example if a buyer took possession years ago and only now complains. The sooner you file, the less room there is for this argument.

"The project is complete."

If it's genuinely complete with a valid occupancy or completion certificate, that changes what you can claim going forward, but it doesn't wipe out a claim for delay interest for the years you waited. The Supreme Court made this point about possession and delay compensation in Arifur Rahman Khan.

The bottom line

If your project, or your phase of it, was still incomplete without a completion certificate on 1 May 2017, RERA very likely applies to you, however long ago you booked. You can claim a refund with interest, delay interest and the other remedies under the Act, and the nominal compensation in an old agreement usually won't hold you back. If the project was completed before RERA, you still have the consumer commission and the civil courts. Either way, check the facts about your project's status, choose your forum, and file. Our RERA complaint service can help you work out where you stand.

Frequently asked questions

I booked my flat in 2013. Can I go to RERA?

Yes, if your project or phase was ongoing on 1 May 2017, meaning it had no completion certificate by then. The booking date doesn't decide it.

What did the Supreme Court decide in Newtech?

In Newtech Promoters (2021) it held that RERA applies to ongoing projects, that buyers in them can file complaints, and that the refund right under Section 18 is available even under pre-RERA agreements.

My project had a completion certificate in 2016. What now?

RERA generally won't apply. You can usually approach a consumer commission, or a civil court for contractual claims.

Am I stuck with the Rs 5 per square foot delay clause in my old agreement?

Usually not. RERA authorities generally award interest at the rate prescribed in the state rules, and one-sided agreement terms are often not enforced.

The builder never registered my ongoing project. Can I still complain?

Yes. Failing to register is itself a breach of Section 3, and authorities generally hear buyers' complaints in such projects.

From when will I get delay interest?

Many authorities award it from the due date in the agreement, even if that was before 2017, but builders sometimes argue otherwise. Take advice on your authority's approach.

I already filed in consumer court. Can I switch to RERA?

Usually you'd have to withdraw the consumer complaint first. If the consumer case is well advanced, it may be better to continue it.

This guide explains, in general terms, how RERA applies to projects that started before the Act came into force. State rules on ongoing projects differ, and some points are still being argued before authorities and tribunals. This isn't legal advice on your project; check its status and take advice before filing.