By Arosh John
Founder – John Real Estate (MahaRERA Reg. No. A51700001835) | Editor-in-Chief – Thane Real Estate News (TREN)
Thane–MMR | November 2025
When a new flat starts showing seepage, cracks or recurring service issues within a few years of possession, most buyers are unsure whether it is a society issue or the developer’s legal responsibility.
Under RERA and MahaRERA, there is a clear statutory framework for this: the 5-year defect liability rule, also known as the 5-year warranty. For defined categories of defects, the promoter is responsible for five years from the date of handing over possession and must rectify such defects within a fixed time frame.
This explainer focuses on the legal structure of that rule, based strictly on:
- The Real Estate (Regulation and Development) Act, 2016
- The Maharashtra RERA Rules, 2017 and Model Agreement for Sale
- MahaRERA’s orders and official documents
as available up to November 2025.
1. The legal backbone of the 5-year rule
1.1 Section 14(3) – core defect liability provision
The central provision is Section 14(3) of the RERA Act. In essence, it provides that:
- If any structural defect, or
- Any defect in workmanship, quality, provision of services, or any other obligations of the promoter as per the agreement for sale,
- Is brought to the notice of the promoter within 5 years from the date of handing over possession,
then the promoter must:
- Rectify such defects without further charge within 30 days, and
- If the promoter fails to do so, the allottee is entitled to appropriate compensation under the Act.
This is not a contractual favour; it is a statutory obligation.
1.2 Section 11(4) – responsibility beyond conveyance
Section 11(4) of the Act, which deals with the duties of the promoter, contains a proviso stating that the promoter’s responsibilities in connection with structural and other covered defects continue for the period specified in Section 14(3) even after the conveyance deed is executed.
In simple terms:
Even after the society/association is formed and conveyance is completed, the 5-year defect liability of the promoter continues for qualifying defects.
2. How the Maharashtra Model Agreement for Sale captures this right
Maharashtra has notified the Maharashtra Real Estate (Regulation and Development) Rules, 2017. These Rules attach a Model Agreement for Sale (Annexure “A”), which promoters are required to follow.
The note under the Model AFS clearly states that:
- It is a model format to be followed,
- Clauses that reflect statutory requirements must be retained, and
- Any clause inconsistent with the Act, the Rules or Regulations is void.
Within this Model Agreement, Clause 7.4 is the key:
- For five years from the date of handing over the apartment,
- If the allottee informs the promoter of any structural defect in the flat or building, or
- Any defect due to workmanship, quality or provision of services,
then:
- The promoter must rectify such defects at his own cost, and
- If rectification is not possible, the allottee is entitled to compensation, as provided under the Act.
So, the five-year defect liability appears:
- In the central Act (Section 14(3)), and
- In the state Model Agreement (Clause 7.4), which every MahaRERA-registered project in Maharashtra is expected to align with.
3. MahaRERA’s position: the defect liability clause is non-negotiable
MahaRERA has examined multiple project agreements and issued an order identifying recurring deviations from the Model AFS. One of the specific non-compliances flagged is:
“Not mentioning the defect liability period or reducing the defect liability period.”
In that same order, MahaRERA:
- Reproduces Section 14(3) (including the five years and the 30-day rectification requirement), and
- Clarifies that certain clauses of the Model Agreement, including the defect liability clause, are non-negotiable and cannot be diluted.
For buyers, this has two important implications:
- A builder cannot legally shorten the defect liability period to 1 or 2 years in the Agreement for Sale.
- Any clause that reduces or eliminates the five-year defect liability is inconsistent with the Act and the Model AFS and is vulnerable to being declared void if tested before MahaRERA.
4. What typically comes within the 5-year defect liability?
The Act uses intentionally broad language:
- “Structural defect”
- Defects in “workmanship, quality or provision of services”
- “Any other obligations of the promoter as per the agreement for sale”
There is no exhaustive list in the statute. Whether a particular issue qualifies as a “defect” is ultimately a matter of facts and interpretation by the Authority.
However, MahaRERA’s own Consultation Paper on Quality Assurance gives an indicative list of post-handover quality issues it considers relevant, such as:
- Walls and ceilings: cracks, hollowness, dampness, seepage, efflorescence, poor finishing, waterproofing failures
- Flooring: hollow or cracked tiles, chipping, improper slopes causing waterlogging
- Doors and windows: misalignment, gaps, instability, water ingress, poor hardware performance
- Plumbing: recurring leakages, incorrect slopes, poor installation of drain lines and fittings
- Electrical: loose boards, poor wiring, earthing issues, recurrent faults
These are presented as examples, not a closed list. In practice, many disputes involve:
- Persistent seepage and dampness
- Structural cracks
- Repeated plumbing/electrical failures due to poor workmanship
They are argued under the 5-year defect liability framework.
Whether a particular issue is:
- A covered defect under Section 14(3), or
- A matter of routine wear and tear / maintenance,
will depend on the evidence, expert reports and MahaRERA’s interpretation in each case.
5. When does the 5-year period start, and how does the 30-day rule work?
5.1 Start of the 5 years
Both Section 14(3) of the RERA Act and Clause 7.4 of the Maharashtra Model AFS are aligned on one critical point:
The five years are counted from the date of handing over possession of the apartment to the allottee.
In practice, this is usually the date mentioned in the:
- Possession letter / handover letter, or
- Agreement records relating to possession.
Each unit’s 5-year window is therefore linked to its own possession date, not merely to the building’s Occupation Certificate date.
5.2 The 30-day rectification requirement
Once a defect falling within Section 14(3) is:
- Notified to the promoter within five years,
the law provides that:
- The promoter must rectify the defect without further charge within 30 days of such notification, and
- If the promoter fails to do so, the allottee becomes entitled to appropriate compensation under the Act.
The Model AFS mirrors this by providing that if rectification is not possible, compensation will be payable in accordance with the Act.
6. How does defect liability sit alongside society maintenance?
There is often confusion between:
- The society’s responsibility for day-to-day maintenance, and
- The promoter’s statutory liability for covered defects.
Legally, the framework can be understood as follows:
- After completion and conveyance, the society/association is responsible for routine maintenance, minor repairs and upkeep of the building and common areas.
- At the same time, under Section 11(4) proviso read with Section 14(3) and Clause 7.4 of the Model AFS, the promoter remains responsible for structural defects and other defined defects for the whole five-year period from possession, even after conveyance.
In other words:
- Normal wear and tear and usual ageing are typically part of the society’s maintenance.
- However, genuine structural, workmanship, quality or service-related defects that arise within five years and fall within the legal definitions remain within the promoter’s statutory defect liability, irrespective of internal resolutions or verbal assurances.
7. Key takeaways for homebuyers and societies
For Thane–MMR buyers and housing societies, the core points to remember are:
- The 5-year defect liability is a statutory right, not a negotiable commercial term.
- The clock starts from the date of handing over possession of your specific flat.
- The promoter’s responsibility for covered defects continues for the full five years, even after society formation and conveyance.
- Any attempt to reduce or delete the 5-year defect liability clause in the Agreement for Sale conflicts with Section 14(3) and MahaRERA’s non-negotiable clause position.
- Defects must be brought to the promoter’s notice in writing within five years; if they are not rectified, the Act provides a route for compensation and redressal through MahaRERA.
A separate, process-oriented guide can go into the finer details of drafting the notice, timelines, documentation, and the complaint process before MahaRERA. This article is intentionally focused on the legal structure and rights, so that buyers and societies know what the 5-year rule actually is — and what it is not.
About the Author
Arosh John is the Founder of John Real Estate (MahaRERA Reg. No. A51700001835) and Editor-in-Chief of Thane Real Estate News (TREN) – a digital platform focused on factual, regulation-aligned coverage of the Mumbai Metropolitan Region’s property market.
With over a decade of on-ground experience across Thane’s villa segment, premium resales and NRI advisory, he combines micro-market insight with a strong understanding of MahaRERA regulations, agreements for sale and transaction structuring. His work aims to bring clarity, accuracy and transparency to real estate decisions for homebuyers and investors in the Thane–MMR region.
Disclaimer
This article is based solely on:
- The Real Estate (Regulation and Development) Act, 2016
- The Maharashtra Real Estate (Regulation and Development) Rules, 2017, including the Model Agreement for Sale (Annexure “A”)
- Official MahaRERA orders, consultation documents and FAQs available in the public domain
as of November 2025. It is intended only for general information and buyer awareness and does not constitute legal advice or a formal legal opinion. Buyers, societies and stakeholders should consult a practising advocate experienced in RERA and real estate law for case-specific advice, drafting and litigation strategy.
