When an apartment is built and it is eventually occupied, a few questions do the rounds within the new community. There are always common issues to be coordinated with the builder regarding teething troubles, maintenance, handover and several such issues.
Normally, a group of owners comes together to coordinate on behalf of the community. For a period, I was one of them in our large apartment located near Marathahalli in Bengaluru. Among the various challenges we faced, one of the toughest questions to answer was on registering the owner’s association.
Today, if a community is lucky, the builder registers the association. If that does not happen, the owners get together and do something about it themselves with the help of a lawyer. We spent years on this problem. Most lawyers in Bengaluru we approached recommend the registration of the owners association under the Karnataka Societies Act.
However, it turns out that the societies act is not the right law to register an apartment association. Section 3 of the societies act defines the various types of societies that can be registered under the act and none of them meet the definition of an apartment association.
We determined that the Karnataka Apartment Ownership Act is the correct law. In fact, our agreement for sale with builder and registered sale deed contained copious references to the Apartment Ownership Act. However, the registration process seemed so complex and convoluted that it seemed like a very daunting task.
As part of this process, I did a lot of research and reading and received inputs from several people who had looked into this issue themselves. What I learnt surprised and shocked me and those are briefly summarised in the rest of this article.
As stated earlier, the societies act is the wrong law for registering an association. Take the case of this apartment complex on Sarjapur road which is now in the midst of a legal battle with the builder.
The builder had the apartment association registered under the societies act. Subsequently, the residents discovered that the builder was carving out 20,000 sq. ft. from the original bounds of their property for a commercial venture. The matter is now in court where the builder now contended that the owner’s association was not qualified to fight the case since it was formed under the societies act and not the Karnataka Apartment Ownership Act (KAOA) as required.
It turns out that if the correct process as required by the law is followed, KAOA registration will flow smoothly. An apartment as defined in Karnataka is a property of a residential nature where the owner owns the apartment and holds a percentage share in the land and common areas and amenities. There are two laws that govern this process in Karnataka.
One is the Karnataka Ownership Flats Act (KOFA) and the other is the KAOA. KOFA regulates the process of promotion, construction, sale, management and transfer of the apartment. KAOA was written with the view to make apartments heritable, transferable and mortgageable and to address aspects related to management of the property.
In Karnataka, there are three types of apartment communities that can be formed. A promoter can float a company or cooperative society under KOFA. These are two options. Alternatively, the third option envisaged in KOFA is for the builder/promoter to form an association of owners under the KAOA. Forming a company is a pretty rare approach. In a cooperative society setup, the building, common area and land is vested with the cooperative society and the allottees of the flat are deemed as “tenants”.
Please note that the word tenant in this context has a more expansive legal meaning as compared to regular usage. The member has all rights to occupy his or her flat, but does not own an undivided share as is commonly understood since all common property is vested with the society. Naturally, this raises issues when securing a mortgage for an individual unit – how does a bank give mortgage for something you do not strictly own?
So the only solution is for all members to take loan from the same bank in which case the risk for the lender goes up substantially. It is to remedy this situation that the KAOA was passed. (Actually, Karnataka adapted Maharashtra’s laws. Maharashtra has been a pioneer of apartment laws in India).
Key features of KAOA
In India, the sale and purchase of immovable property is governed by the Transfer of Property act of 1882. The 1882 act does not cover the concept of an apartment along with its undivided share in land and common areas. So a fundamental step that KAOA does is that it equates the purchase of an apartment with its proportional undivided share as equivalent to an immovable property bought under the transfer of property act.
The purchaser is the absolute owner with a clear title to the apartment and its proportional undivided share.
How is the clear title ensured?
The KAOA requires the builder/promoter/owner of the apartment to execute a document known as the Deed of Declaration. The Deed of Declaration (DoD) is a document that describes the property, i.e., the building, all of its apartments, the common facilities such as lifts, generators, fire fighting equipment, pool, gym etc., along with the ownership scheme giving the percentage share of each apartment. Along with the DoD, copies of plan approvals from local authorities and bye-laws of the association of owners is to be registered.
Now, when individual apartment owners go to register their Deed of Apartment to complete their sale, the KAOA requires that the Deed of Apartment refers to the DoD (along with information regarding registration of the DoD, such as registration number, date, sub registrar’s office etc.) so that the ownership scheme is fully traceable and the title clear.
There are also special requirements on the Registrars and Sub-Registrars to maintain this information in an organised fashion. In addition to the Deed of Apartment, the purchasers also execute a Declaration known as Form–B where they agree to abide by the rules of the KAOA.
Once the apartments are sold and registered, the builder is to approach the Registrar of Cooperative Societies (identified as the competent authority by KAOA) with copies of the Registered DoD, bye-laws, Deeds of Apartment, and Form-B declarations to register the association.
If there are unsold apartments, the builder/promoter is allowed to represent those unsold apartments. This process completes the formation of the association. The bye-laws registered with the DoD become the by-laws of the association and everything is set for smooth operation.
Office bearers and duties
The KAOA also has additional provisions regarding duties of office bearers, process of voting, regarding charges and encumbrances against individual apartments, and even on steps to be taken in the event of destruction of the property – say by fire or earthquake.
For the local governments such as BBMP, there are additional hidden gems. The KAOA says that each apartment owner is liable to pay local taxes for his or her apartment and proportional undivided share. So that resolves the question of who pays property tax on the common areas. That is not to say the KAOA is perfect. It is a 40 year old law to which many improvements can be made. However, the key point is that a very logical framework already exists.
Reality
Unfortunately, the ground reality today is that very few builders do things the right way. Most apartments have associations registered under the societies act. Banks continue to give mortgages despite the fact that clear title is not passed on to the buyers due to the manner in which transactions are conducted. The registrars and sub-registrars continue to register any document that purports to be an apartment sale deed without paying heed to the requirements placed on them by the KAOA.
The government, as per their answers in the Karnataka information commission to an RTI request filed by a well known RTI activist C N Kumar was not even sure which department is responsible for a law such as the KOFA (and by extension, the KAOA). A copy of the RTI response is with Citizen Matters.
Urban Development Department order dated 08/03/2012 appointing Sub-Registrars Click here
It turns out the Urban Development Department is. Could we hope that the state will begin to ensure adherence to the law, educate its citizens as well as builders and maybe even amend these acts soon to make them modern and more functional? Can buyers get together and force the builders to do things in the right way?
Apartment sale process including formation
|
Step No. |
Document |
Comment |
|
1 |
Agreement of Sale: Finalise an apartment purchase, pay an advance and sign an Agreement of Sale, which is to be registered under registration act of 1908. |
Under KOFA 1972, section 3, subsection 2(h), and KOFA Rules 1975, section 5(d) the builder/promoter is obligated to state the “precise nature of the organization to be constituted of the persons who have taken or are to take the flats or apartments”. |
|
2 |
Deed of Declaration: At some point, while construction is in progress and before a final deed of apartment is executed and registered; the builder/promoter is to register a document known as Deed of Declaration under registration act 1908. |
The Deed of Declaration is to be provided in a format known as Form A, which is described in KAOA Rules 1974. The DoD will detail the extent of property, all the common areas, limited common areas and facilities, description of buildings and all apartments. It will also specify the percentage undivided ownership share for each apartment. Along with Form A, a copy of the by-laws of the association and a set of floor plans of the buildings are to be appended. It has to be certified by an architect that the plans are accurate as per what is approved by the local body and what has been built. All registration offices are obligated to keep a book called “Register of Declarations and Deeds of Apartments under KAOA 1972” and an Index thereto |
|
3 |
Deed of Apartment: Conveyance of the apartment is done by executing a Deed of Apartment |
Under section 12(a) of the KAOA, 1972, the Deed of Apartment is to include the book, page and date of executing the Deed of Declaration and the date and serial number of its registration. |
|
4 |
Inform the competent authority: To finish the formation of the association, true copies of the Deed of Declaration, by-laws and Deeds of Apartment have to be filed in the office of the competent authority – identified by the act as the registrar of cooperative societies, |
The KAOA rules require that true copies of all amendments to the DoD, by-laws etc. should also be filed in the office of the competent authority. A copy of a Deed of Apartment is to be filed within 30 days of registration. |
|
5 |
Declaration under Form B: A declaration by the owner(s) of each apartment under Form B is also to be executed and submitted to the competent authority |
The declaration under Form-B is a commitment by the owners(s) that they will comply with the KAOA, and that any person who purchases or inherits the apartment subsequently from them will also do so. |
⊕
Congratulations Sanjay for highlighting this important issue for discussion.
Readers of this site can find the KAOA content as well as Apartment Ownership Acts of other Indian states consolidated at this link.
http://apartmentadda.com/blog/2011/10/09/socities-registration-apartment-ownership-acts/
The Urban Development Department has finally been identified as the department responsible.
UDD in March 2012 following a High Court direction issued GO No UDD 466 MNY 2005 designating officers under Sec 5 and Sec 7 of the KOFA Act 1972.
Under Sec 5 the Dy Registrar of Co-Op Societies, Bangalore Central for Bangalore Urban and Dy Registrar of Co-Op Societies, Bangalore Rural for Bangalore Rural have been designated.
Under Sec 7, Chief Engineer, BBMP ( Vigilance, Project Planning and Evaluation) for BBMP areas and Chief Engineer ( Engineer Member) BDA for BDA areas excluding BBMP areas have been appointed.
This is a big step forward.
I have copies of the notifications. I can scan and upload them if someone can tell me how.
Mr Kumar, do mail us the documents and we can upload the same!
Hi Sanjay,
Thank you for sharing this write up. I also recommend readers to read article Guide to Apartment Owners Association: Formation and Functioning
and Others useful likes
at http://www.commonfloor.com/articles/
The notification referred to by Mr. Kumar can be found in the Karnataka Gazette here, on page 1314: http://gazette.kar.nic.in/22-03-2012/Part-EOG-(Page-1305-1424).pdf
There is still some vagueness in the notification. Officials are identified under section 5 of KOFA, 1972 for (a) Companies and (b) Co-operative societies. This raises 2 questions
(a) How many apartments in Bangalore are registered as either companies or cooperative societies. Please nkep in mind that a society under the Societies act is NOT a cooperative society.
and (b) What about apartments that are formed under KAOA. The KOFA has been written to regulate those apartments as well. Who will be the officer responsible under section 5 of KOFA for those?
Please upload the files I sent. Part I of the order has been subsequently modified.
The 2 recent Orders since posted (see box alongside), issued in pursuance of the Gazette Notification tom-tom-med about,do not seem to suffer from any ‘vagueness’. Albeit, if read carefully, wprt the section/sub-section of the Flats Act specified therein,they are seen to be for very limited / different purposes. As such,they provide no answer or solution to the vexing problems faced in regard to ‘registration’ of a ‘Society’ for flats or ‘Association’ for apartments.
I am open to correction should my above understanding be faulty in any respect.
1. As made quite clear in the STATEMENT OF OBJECTS AND REASONS, purchaser enjoys ‘exclusive ownership of his Flat. Further, his rights and interests in Flat, same way as in apartment, are transferable and heritable. Thereby enables him to take loan by mortgaging his rights and interests.
2. Re. property tax on apartment, one remembers, there are 2 ordinances. The first requires property tax payment by owner or occupier, on the apartment value inclusive of the undivided interest in common areas and facilities. The revised ordinance, issued later in pursuance of representations made, however, provides for an option for owners’ association, instead of owner, to pay tax separately for the common areas, etc. (e.g. swimming pool). For knowing more, one may have to refer those ordinances. Though, obviously there being no advantage, the second ordinance may not have been taken a serious note of and followed.
This aspect may, however, assume significance/importance in cases where a final conveyance of property in an apartment building has, for any reason, remained to be effected in favour of a duly formed and registered ‘owners’ association’. For clinching clues, one may look up the Blog >Final Conveyance of Property in Apartment Building … – swamilook
Vswami sir, The original order for section 5 simply said – THe District Registrar of Companies – for Companies and Deputy Registrar of Co-op Societies of concerned district – for cooperative societies. That was vague because one was not sure whether apartment associations under KAOA would come under cooperative societies. It was subsequently amended and the amended notice is what is posted in the box. As you correctly point out, this still does not resolve the issue formation of a society or association. THe good news, I guess, for the optimistically inclined is that the government is stirring?
Dear Mr. Sanjay,
Thanks a lot for sharing such wonderful information.
We are a 10 year old apartment complex in Bangalore, registered to Karnataka Societies Registration Act, 1960.
Is it possible for you to shed some
light on the procedure if we want to register to KAOA? Obviously, there is no builder in the picture now, after 10 years. I guess the current owners have to execute the DoD themselves.
You must have consulted many lawyers in you quest for the right procedure. We will really appreciate if you can mention the most competent one (hopefully the one you used to get your complex registered). If there is any issue in disclosing his name here, I would be greatful if you can send the contact to kishalay.haldar@gmail.com
As you wished in your posting, we want to take the right step. For that we hope to get some help from you.
With Best Regards,
Kishalay
Dear Mr. Kishalay, Sorry for the delayed response. My experience with various lawyers has not been good. We used a lawyer whose name I am very hesistant to recommend. Submitting your property to KAOA outside the process defined above is extremely cumbersome since every owner has to sign the deed of declaration. In our 500 odd owner apartment complex, we are painstakingly plodding through this. It also loses some of its meaning since much of the original intent is compromised. Along with some other people, we have been trying to find contacts in the government to correct this whole situation. We have met with bureaucrats and even the UDD minister, Shri Suresh Kumar. While all meeting are nice and feel good, actual progress has been limited. I feel what we need is to spread the word and have all impacted apartment owners in Bangalore push the government to rectify this situation. They have to put provisions in the law for (a) Currently existing apartments who are in limbi and (b) New apartments coming up. There ia also a need for buyer education so that the process and law is crystal clear to everybody. For a fraction of the amount the government spends on advertizing its “achievements”, this can be accomplished. I think individual apartment communities should push their MLA to rectify this situation. Concerted pressure will bring this issue to the front burner (or at least on a burner). I will send out an email if you want to continue this discussion.
As i understood (when we were registering our association in 2011), registrar of societies does not accept KAOA Act due to lack of ownership to registrars defined in the act. They only accept 1960 Act & bylaws which conforms with it) by putting Suffix of “Welfare”in the name to de-mark housing societies and other societies.
Regards
Ganesh
‘@Ganesh Pai
The information posted is prima facie too vague and sketchy, to expect any well meaning reply that could be of any help in this or other like cases.
One fact is quite obvious. This is one of those innumerable instances where because of non-compliance with the mandates of the law by the promoter/seller, the buyers have come to grief, and been ‘left in limbo’.
One can think of or suggest no real solution to remedy or salvage such situations. Except, perhaps, the State government, if could be successfully persuaded, can come out,in the larger public interest, with a suitably framed scheme(ideally speaking, by promulgating an Ordinance, and on a war footing) with the objective of ‘regularising’ all such past transactions; and stop anymore irregular / illegal transactions.
It is startling to notice that the so naned ’welfare associations” still continue to be registered by the Registrar of Societies ;despite his, as repeatedly pointed out/urged in several quarters,having no inherent authority /competence, or powers whatsoever, to do so, under the Societies Registration Act, of which he is a creature.
In this context, attention might be drawn to a tax case holding that,- “Resident welfare societies cannot be granted sec.12A registration”(link). The view the court as taken goes to adequately, though indirectly, support/reinforce the said indisputable legal position.
26 July(contd)>
For more useful clues, especially to those who have, for own reason, no time or mind to strive thinking of or venturing to do any ‘home work’,here is some ‘fast food'(links – for inspiring a line of self-improving thoughts):
>http://www.commonfloor.com/articles/bangalore-apartment-owners-association-123.html
>>Responsibilities of a real estate developer
KEY NOTE: Need to do so , to begin with, by those RWAs who have unwittingly or otherwise chosen to get diverted to a wrong ‘track’, mindless of the disastrous consequences that undoubtedly has in store. How long it is going to take to realise the folly, and, if feasible, to try and change over to a right track even at this LATE HOUR IS the one and only vexing question left to be diligently answered!
Dear All,
Is parking in apartments also covered by the The Karnataka Apartment Ownership Act, 1972 ? if not, does anyone know whcih law it is covered under?
Sorry, me again. I’m a little confused after reading the discussion – if there is any violation of the KOFA or KAOA act, are these the people to approach –
Chief Engineer, BBMP ( Vigilance, Project Planning and Evaluation) for BBMP areas and Chief Engineer ( Engineer Member) BDA for BDA areas excluding BBMP areas have been appointed.
If not who should be approached for any violations ofn the act?
Dear All,
We as group of friends would like to construct an apartment on 60×40 plot and each take one floor. We would like to know whether this is a feasible approach?
Is there any constraint on the land size for constructing an apartment and getting the required authorities clearance?
If anybody has done the same, please share your experiences.
Thanks and Regards,
Gupta
Vinay, parking is not covered in any of these acts. The Chief Engineer’s identified are to be approached only for disputes under section 7 of KOFA which is specific to quality of construction and any defects.
Other violations of the act will I imagine have to go to court.
Mr.Gupta – An apartment under KAOA needs to have more than 4 units. I guess there is no bar to construction on 60×40 site in Bangalore as long as you can meet FAR and setback requirements. Of course, to do things illegally as is rampant in Bangalore, you need not post a question here!
Dear Sanjay (or anyone else), can you help me understand the correct authority that governs Office building associations? Is there a competent Registrar who looks after the affairs of Commercial Complex / office complex association in Bangalore? I am finding many discrepancies in our Managing Commitee and hence want to know who is the right authority to compliant. We also have adopted Bye-laws for the associations. What is the significance of these bye-laws and how to stop / amend them?
Nitin
Other than owner can become member of Apartment Association?
Hello Sanjay,
Thanks for details of the ACT. We are in a similar situation in our newly formed apartment. Builder has not completed the pending work still, so we wanted to take this opportunity to form the association. As mentioned, we also want to register under KAOA. We were told by the builder at the very end when 90% of flats were sold that he will not be getting Occupation certificate from BBMP. So will that be an issue to form the association under KAOA. As mentioned by many previous posts, most buyers do not know of nitty gritties in buying a house in bangalore. Can you provide some guidance, your experiences in forming association, we may not get full cooperation from builder, so like minded residents would have to take this task. Is there any way we could contact you for any help?
Regards,
Dr.Ramanujam Venugopalan
we are in a process of forming Adhoc committee to kick start this process. Any help from any experts would be greatly appreciated.
Dear all,
The state of apartment law in Karnataka is very pathetic right now. The biggest problem is the non implementation of the law on the books and the second is the fact that the laws on the books are 40 years old and crying for improvement.
The Urban Development Department is finally started on reviewing existing laws and amending it. I had the opportunity to give some input on this recently. I would strongly recommend that people (a) Write in to UDD – http://www.uddkar.gov.in/ContactUs and request that they move fast and help so many apartment owners struggling to run their communities.
Please also log your comments on this blog site – http://praja.in/en/projects/4448/announcement/suggestions-udd-amendments-kaoa
It helps us consolidate the issues.
Dear Sanjay or other fellow citizens, I live in an apartment unit where I am facing water seepage issue due to faulty nanny trap underneath kitchen and bath of the unit from the above. The apartment was built 20 years ago and there are no statutory registrations made for registering apartment association as such. I am facing the brunt for owner’s (who stay’s above my unit) failure to rectify the matter by fixing it. In such situations, are there any regulations/ laws applicable wherein I could legally compel the other owner to fix the problem at his expense? I am facing problems for no fault of mine. Please advise.
The post does give a lot of good information thanks for this. I do have a practical question. The requirement to register the Association under KOAO is the DOD and this requires the plan verified by an architect as per approved plan. How many apartments adhere to this? what if the plan deviates more than 15% than the approved plan from BBMP/BDA can an association still be registered? There are quite a number of lawyers who say DOD is not a requirement to register the association under KOAO is that feasible?
Impromptu (at the highly painful cost of repetition):
“…There are quite a number of lawyers who say DOD is not a requirement to register the association under KOAO is that feasible?”
The query, to answer abruptly, but even in the least offensive manner, does not at all seem to make any sense whatsoever- call it common sense or legal sense.
Reasoning in brief>
In the case of a building of units (flats or apartments) as unequivocally provided in the specially legislated State enactments, purchasers have a lawful right to have the property in the entire land and building finally conveyed by the promoter / vendor to a legal entity comprising the purchasers as its members- constituents. Such a conveyance is a must. That is, apart from the separate conveyance of the limited property rights in – being to possess, occupy, and exclusively enjoy as the rightful occupier of- the “Flat” or “Apartment” to the individual purchasers.
In the case of “Flats” such a legal entity is the one which is required to be formed and duly registered as a housing co-operative society, following the procedure laid down by the State law governing the co-operative societies. If those are “Apartments” , such a legal entity, known as “Owners’ Association”, has to be formed and brought into existence by following each and every one of the procedural requirements of the law governing apartments. To say it differently,
As rightly set out in the subject write-up, one of the crucial and fundamental requirements to be fulfilled upfront is the DoD.
It may be specially noted that, CREDAI, being the promoters’ voluntary Organisation itself, has, in the Code Of Ethics meant for guidance of its members, not disputed but recognised that DoD is a requirement of law calling for compliance.
In short, it appears to be too late in the day to try and give any fresh lease of life , particularly by ‘lawyers’, to any such virtually ‘dead’ controversy, with no substance or merit whatsoever. Unless, contrary to the common belief, a ‘lawyer’ (dictionary meaning – a person whose job is to know about the law, and give legal advice and help) perchance even remotely believes that it is part of his job to read and understand, or rewrite the law, as it suits.
To add: As may be recalled, a leading lawyer – who is well known and popular through his special columns in a Daily providing expert answers to readers’ queries, -in his eminence, does not believe or say that DoD as a legal requirement cannot be prudently wished away or bypassed, in the larger interests of the normally gullible buyers’ community.
< in the third line from bottom – to read 'can' (instead- 'cannot')
I represent an Association, as President which is recently formed to highlight our woes and to co-ordinate with the Builders to get the finishing work monitored as per our requirement and as committed by the Builders. Upon getting elected, we have intimated to the Builders that, a few OWNERS have been elected as office bearers and requested the Builder to receive and send all future communication with them. We totally 14 officer bearers have been selected out of 127 Apartment OWNERS. In the election process it was attended and our election process was accepted by 64 Owners.Out of 127 Apartments 30 Apartment pertains to the un- sold units of LAND OWNER and the BUILDER shares have been fully sold. We have recently started the Association Membership and we are confident of getting around 90 + Owners to obtain Association Membership and we are collecting a copy of sale deed for our records for submission during Registration of our Apartments. We have also upon electing our Office Bearers, have intimated to the Builders, to submit our Association for Registration under KAOA Act 1972 and so far no response from them.
We have had a meeting with the Builder and submitted him a List of facilities, work, requests from our side and they have give some commitment dates and we have made the MOM (mintues of the meeting ) and intimated them.
The work now is not happening as per our wish and the Builder is not responding properly to the Association mails and continuing his finishing work as per his will and wish.
There are still 8 Flats are to be taken possession by the direct OWNERS and around 27 Flats which belongs to the LAND OWNER share needs to be finished.
The committed common amenities are all half way like Gym , Indoor Game , Pool.
The Parking space not yet allocated.
Under this situation, we request, what should be our next move ? How do we break this huge Rock ? How do we proceed with the Association Registration ?
I request to help us by your experience to come out of this crisis.
Dear all –
Is the KAOA, 1972 applicable for villa projects too? There is a mushrooming of them in Bangalore currently.
To register a apartment association under KAOA, should Deed of Apartment of all the flats in the society be submitted? We are a apartment complex of 250 flats 4 blocks which are 8-12 years old.
Where is the KAOA registration office in Bangalore.
Thanks Sanjay for highlighting the details related to apartment association.
Dear Mr.sanjay, I currently live in Krystal campus 10 where in we have both VIlla’s and apartment , can you pls guide me under which law we should register the owners associations as the common amenities are shared between both villas and apartments. Regards, M.Baradharajan
Hi Sanjay,
I am a owner of flat in Pariwar Presidency Apartment in Anugrah Layout, Bilekahalli, Bangalore.We have started the process for Association registration under Karnataka Apartment Ownership Act (KAOA). Here are few hurdles that we are facing.
1. The law requires that Builder should have registered a ‘Deed of Declaration’ (DoD) before selling any apartment. Also this DoD should be referred in the Sale deeds of each apartment. Builder has not created/registered any DoD before. Most of the flat are already sold and their sale deed do not include reference to DoD (as it is non existing at this stage). Can we still get the DoD registered at this stage?
2. Does registration of DoD at this stage requires OC from BBMP?
our building is 9 years old as is the association. there are only 12 flats in the building. do we need to register our association? we need to apply for a pan no for our association to operate our bank account & without registering we cannot apply. a lawyer informed us that 12 & less apartments in a building, the association need not be registered. is this true?
We could somehow, able to accomplish the process of Registering our Association under KAOA on 12th December 2013, though our Builder did not co-operate and submit any plans and support. Most of the consultant those we came across have recommended forming association under society Act and but after our reading of the article by Mr. Sanjay, our hopes on KAO Act Registration increased and we stood together and finally we achived our GOAL. It is possible only by unity among all OWNERS of the Apartments and TRUST. But the process is hectic and lengthy but we enjoyed the whole process where we had a lot of twists and climax.Thanks Sanjay,
Hi Sanjay, If in General Body Meeting no one is ready to take responsibility of office bearers of apartment association, what existing office bearers can do.
‘@MR >impromptu (Personal viewpoints) :
Posers , intriguing though, arising upfront:
1. It may be prudent to assume,- open to correction if wrong, – with no details made available, the subject ‘AOA’ is of the type normally -come- across in real life- that is, has not been duly formed and constituted, with all the mandatory requirements of the special law having been fully complied with. If that is so, so far as one knows, there is no ready or quick way-out to usefully suggest.
2. Even it be otherwise, as of now, the ROCS is still not prepared to but is obstinately dodging to carry out his dutes and responsibilities as the designated “competent authority”. That is, of course, not without valid reason; for despite the KAOA naming him as the ‘designated authority’, the KCSA has omitted to take care, and remained to cover within its ambit, a ‘housing society’. For an elaboration, one may look up the several related Posts @ praja.in.
In short, a recourse to the ROCS in such a piquant situation, which otherwise would have been open, is not possible. So much so, it is a sort of ‘hung’ situation, akin to only ‘trishanku’.
3. Nonetheless, the MC , having been originally elected by the body of purchasers,placing mutual faith and trust on them, going by principles of natural law, it could be urged, they have been ‘acting as trustees’, hence ought not quit en masse, but are rather morally obliged to continue and function as hoteherto, until such time their responsibilities and functions could be formally handed over to a fresh set of elected members for MC; that is until that happens.
$. Be that as it may not have been unanticipated, it is not but worthwhile to look into and ascertain whether/ what “the bye laws”, if in place, provide, and could prove of any help, in regard to election of MC ‘ and its minimum period of office (assuming there is one in existence alt least for name sake). In the worst scenario as is imagined, perhaps, the one and only recourse anyone can think of, is going to court for getting out of the rut / stalemate; for which the blame, the monetary and other like burdens / inconveniences , would have to be shared by one and all of the ‘purchasers’.
5. In the ultimate analysis, if this is one of those common instances in which such a predicament has come to surface because of the promoter/seller having failed to discharge his statutory obligations, inclusive of registering a DOD, then he must have to be imp leaded not only as a necessary party but as the main party / defendant in any such court proceedings, if were to be gone thgrough as suggested.
All said , need not add, the owners require to find and entrust the matter to a lawyer known , above all, for his personal competence and scruples.
This refers to the reply given herein before, to a specific query on the provision of law for ‘ car parking’ wprt the KAOA. Am obliged to differ; for the reasoning, the comment posted elsewhere, but in a different context, reproduced below, may be looked up:
Q
In the concerned everyone’s own interest, points to be made a special and conscious NOTE of are, among others, mainly these:
A) The SC ruling seemingly under reference /in mind * is wprt the provisions / scheme of things applicable to “FLATS” under the MOFA; further, one given on the specific facts of that case. Hence, may not be prudent for anyone to assume and proceed on the premise that it is ipso facto applicable to any other of its kind- such as “APARTMENTS” or in any other State.
B) The relevant provisions applicable to “APARTMENTS”, which are distinct and clearly distinguishable, even on a simple reading (but with clear vision/ dilated eyes) are to be found in the separate enactment applicable thereto; e.g. in Maharashtra, it is called the,- MAOA;
C) In Chennai, as is commonly known, mostly constructed and sold as by builders are,- “APARTMENTS”; and applicable thereto is the enactment called the TNAOA;
D) The TANAOA is an enactment framed, and structured, more or less on the lines of/ adopting the underlying model of the MAOA, but for certain deficiencies . For a critical comparative study of the respective law on APRTMENTS in force in Maharashtra and Chennai, one may care to mindfully go through the published article – “Own an Apartment in Chennai?” – Citation, – (2003) 3 MLJ (journal) pg. 5.
In one’s independent and perceptive conviction, for ascertaining and deciding on the position in law, so as to convincingly (or expertly or eminently)answer the query on hand, even on a tentative basis, the foregoing unflinchingly crucial aspects ought to be kept in razor-sharp focus, as an imperative backdrop.
The information exchanged in good faith and made freely available in some detail in public domain, purely for sake of the common good, in its profound sense, for instance @ the following Link,-
UPOR or PR Card-All property details in one card for Karnataka **- (comments posted thereat need to be read),
it is earnestly believed/hoped , might provide useful clues and be of broad guidance.
UQ
* Nahalchand Laloochand P.Ltd. vs Panchali Co-Op.Hng.Sty.Ltd. on …
** UPOR or PR Card-All property details in one card for Karnataka
‘@MR
To add > Attention may be drawn, for useful guidance, to the reader’s query and reply thereto of an Expert in the Lci Group @ http://www.lawyersclubindia.com/experts/How-do-we-conduct-a-general-elections-in-a-chs-when-there-is-only-an-admin-committee–442826.asp
The point painfully noted is that, even in the case of a duly formed and registered CHS, despite coming within the supervisory powers of the competent authority and his overseeing administrative control, a piquant situation such as the one cannot be wished away ; if so, does not the really effective solution lies only with each and every purchaser of a unit; and realization and sincere and whole-some / – time co-operation among them all as a community.. At the best, all external rules and regulations could only be of remote help, if and when were required to fall back on, as the final resort. for that matter, even the changes sought to be brought in, in respect of CHSs, by the lastly effected amendment (97 th) of the Constitution do not seem to squarely deal with/tackle any such inevitable problem inherent in the very system.
very useful information’s. I was not knowing about the act in Karnataka. Thanks i will find out the act and book also.
http://www.sterlingdevelopers.com/about.html
The only problem with doing paper works is we need to spend some money to get done of the work. This is main problem in government offices and thanks for informative post.
http://i1properties.com/
As a flat owner even i have faced many problems in order to find the right things out and then i heard about the act which helped me alot.
http://sammysgrandpalace.com/
hi all, can someone give some input on this :
i am a tenant @ Bangalore – office building, i am paying rent to the owner and maintenance to the association and have receipt in my name, now when i find the maintenance is very poor ( no proper security guard, they are physically challenged, no of guards less, no proper management, my parking is misused, so on) can i complain to the association.
Bye laws framed and accepted by all the co-owners of an apartment pertain to the common facilities, is possible to register and defend in the court of law.
Parthasarathy
If the Bye laws are framed as per the provisions of KAO Act 1972 and if registered under KAO Act 1972 along with Deed of Declaration, Form B, it can be defended in any court of Law. Bye laws prepared under Soceity’s Act and Registered under society’s act, does not have any legal entity.
May I get the name and contact number of some good lawyers with expertise in real estate – association formation, filing consumer court cases, etc. Thank you.
The main lacunae is not available of any registration certificate mentioning the name and address of the association which registers the Deed of Declaration, Bye Laws, Sanctioned Plan, etc., with Sub – Registrar as per the provisions of KAO Act 1972. Though the competent authority to receive a copy of the Registered Deed of Declaration , Bye Laws , sanctioned plan , etc has been named subsequently as per the Karnataka Apartment Ownership Act 1972,(the CA is The Registrar of Co-operative society) but his scope of work and duties are not clearly defined. This defect needs to be amended immediately and the Registrar of co-operative Society be instructed to issue the Registration Certificate to the Associations which are registered as per the provisions of the Karnataka Apartment Ownership Act 1972.
(1) instructions be issued to all The Registrar of Co-operative society to not to entertain registration of the Apartment owners association ( Resident Welfare Associations ) under the society’s Act 1960 and (2) a Law to enforce the Builders to Register the Association of all Owners who purchase flats as per the provisions of the Karnataka Apartment Ownership Act 1972 only and all the maintenance of the apartment be smoothly transited to the Association post Registration under KAO Act 1972.
‘@Shankar Srinivasan, we find ourselves in the same situation as you were in your first post. Could I connect with you offline to get some tips? In our case, although the owners’ association is formed properly under KOA, builder is not conducting election till all the flats are sold out. They are keeping the maintenance to them for easy money and as a result the maintenance quality has taken a back seat. We are trying to get out of the loop to take over the maintenance under the association, but this is not legally recognized I guess till election is conducted. So need to know how to cut the chain.
Dear Mr. Sanjay/ Editors, request your views on my query below: I stay in an apartment built by Vandana Builders. The builders never took any effort to form/ register our association/ committee. We do not possess any Khata as the builders have violated the approved plan. Also the builders have not given any original docs including the approved plans / BBMP approvals or any related docs to the committee. We have been following up with the builders for almost 5 years now. It seems the partners have separated and noone knows which of the partner has the docs related to this apartment. One builder points to other, whereas couple of them are just not contactable. We are now planning to register our association under KAOA, but DoD and other docs will be a challenge. Request your guidance on this pls. Also can we register a complaint against the Builders for the missing docs and for that is it a prerequisite foe the association to be registered.?
Dear Mr. Sanjay/ Editors, request your views on my query below: I stay in an apartment built by Vandana Builders. The builders never took any effort to form/ register our association/ committee. We do not possess any Khata as the builders have violated the approved plan. Also the builders have not given any original docs including the approved plans / BBMP approvals or any related docs to the committee. We have been following up with the builders for almost 5 years now. It seems the partners have separated and noone knows which of the partner has the docs related to this apartment. One builder points to other, whereas couple of them are just not contactable. We are now planning to register our association under KAOA, but DoD and other docs will be a challenge. Request your guidance on this pls. Also can we register a complaint against the Builders for the missing docs and for that is it a prerequisite foe the association to be registered.?
Dear Mr. Sanjay/ Editors, request your views on my query below: I stay in an apartment built by Vandana Builders. The builders never took any effort to form/ register our association/ committee. We do not possess any Khata as the builders have violated the approved plan. Also the builders have not given any original docs including the approved plans / BBMP approvals or any related docs to the committee. We have been following up with the builders for almost 5 years now. It seems the partners have separated and noone knows which of the partner has the docs related to this apartment. One builder points to other, whereas couple of them are just not contactable. We are now planning to register our association under KAOA, but DoD and other docs will be a challenge. Request your guidance on this pls. Also can we register a complaint against the Builders for the missing docs and for that is it a prerequisite foe the association to be registered.?
Reactions (IMPROMPTU)
For sake of ‘public interest’, Is it not high time, that a Clear and Loud enough ‘Clarion Call’ is given as not missed to be heard by anyone (of all), even if happens to be short of hearing or beyond the normal range of its reach! That is to impress that in the current scenario, what is required / a MUST Is Group /Class Action, ONLY. Not ANYMORE Individual / individualistic ‘Action’, ANY LONGER; for, that might prove suicidal / eventual disaster to ONE AND ALL; that is, *the whole community of owners/occupiers of, -co-purchased, -occupied and or desired-to-be co-owned- property (Flats/Apartments) ! For an appreciation , in proper light, a plethora of posts of varying types in public domain, besides the related Blogs herein, are expected to be, mindfully looked into by everyone concerned, including advising professionals and infield practice, for useful clues. The suggestion is to stress that, unless a concerted effort is made and unanimously decided to cry a halt to pursuing the problems as per the whims and fancies of each aggrieved individual, -even if following own lawyer’s advice, it could lead to a further messing up, and dragging all the rest unwittingly or otherwise, into an abysmal quagmire.
The host of valuable information attempted to be disseminated , including feedbacks provided through websites such as this, et al are , as expected, to be taken a serious note of, and considered , to the end of accomplishing the maximum desirable outcome , been specially focused on the facet of of ‘common good’. Of the several of them, in the Blogs on inter alia the 2 Topics- Final Conveyance and “Deemed Conveyance”, also on “continuing cause of action”, are essentially of relevance; and require to be taken into account for the purpose of formulating or structuring say, the pleas, entreaties, so on , whether it be for any endeavour, such as a dialogue with the ‘promoters’ or for any further purpose.
In one’s independent perspective, It is not but a sad commentary, some of the posers / comments, repeated but left unanswered (- for inferable reason), would not happen to have been raised / posted had the whole lot of information, etc. made available been cared to be sincerely and mindfully gone through, not merely by the aggrieved victims of the ongoing irregularities, by their advising professionals as well. Mere awareness, without a knee-jerk/truthful awakening, cannot be expected to lead to the destination / score the set goal.
(Invitation to law experts, no bar to the rest, to mind and appropriately ‘Edit’)
This act it helps most of the apartment owners and each apartment/flat buyer must know these laws. Helpful post and thanks for sharing.
http://anantya.in/
Supplement to Problem faced in having a PAN and/or TAN ..
( intended to provide more clues/ share further thoughts for the common good, particularly of those who have chosen, deliberately or unwittingly, ‘trishanku’ for an abode:
In order to enable anyone concerned to look for useful clues and guidance, given below, on a selective basis, some of the links related to the topic of “PAN”:
1. https://tin.tin.nsdl.com/pan/form49A.html
2. http://www.lessmytax.com/new-form-49a/
3. https://tin.tin.nsdl.com/pan/Instructions49A.html#instruct_form49A
Following is an Xtract from the official instructions inside the link 3. :
Proof of identity Proof of Address
Trust
Copy of
a) Trust deed; or
b) Certificate of registration number issued by Charity Commissioner. Copy of
a) Trust deed; or
b) Certificate of registration number issued by Charity Commissioner.
Association of persons (other than Trusts) or Body of Individuals or Local authority or Artificial Juridical Person
Copy of
a) Agreement; or
b) Certificate of registration number issued by charity commissioner or registrar of cooperative society or any other competent authority; or
c) Any other document originating from any Central or State Government Department establishing identity and address of such person. Copy of
a) Agreement; or
b) Certificate of registration number issued by charity commissioner or registrar of cooperative society or any other competent authority; or
c) Any other document originating from any Central or State Government
Should these be cared to be gone through with dilated vision / in a proper perspective, it is bound to be realised that,-
A ) Owners of units (flats/apartments) in a building complex are entitled to be allotted a PAN, simply for the asking, with no discretion left with the AO to refuse or withhold; and
B) For this purpose, – for having a PAN issued with the status of “Association of persons” (being other than Trusts), it should suffice if anyone of the documents (including that specified in the residuary item c) )is produced as proof, respectively of the ‘name’ and ‘address’ of the applicant.
Aside: It is one’s conviction that, even a lay person –
that is, even if not at all familiar with but is a total stranger -or for that matter, who out of own volition, prefers to be a sworn enemy to, the nitty-gritty or mind-boggling (-teasing) vagaries /inherent vagrancy of law on income-tax , not to talk of its nuances, niceties, so on,-
can perceptibly make no mistake on the above said correct position in law even on a superficial reading and common sense understanding of the things.
It is, of course, a sad commentary that, in framing the instructions, -as is invariably the case /historical reality,- the taxman has miserably failed to take adequate care to ensure that it is complete and foolproof enough to leave none out of the requirement of voluntarily applying for a PAN. To be precise, the very wide scope of the Explanation under the relevant section 2 (31) (specially defining ‘person’) has been curtailed by mandating proof of name and address. Ostensibly over sighting that, there could imaginably be any number of instances where there exists, actually and factually, an association of persons , but having no such document as specified for proving name and / or its address. For example, ‘associations’ tainted with illegality /irregularity in the eyes of the governing special law.
What is all the more sad is that, even when client is faced with an extremely piquant situation, many of the advising professionals do not care to explore ways and means as to how best to resolve within the frame work of the governing special law.
(Left Open/ welcome to ‘Edit’)
NOTE : For sake of completeness, may look up the main write-up posted days ago @praja.in
An Open Appeal:
As per information from a believed–to-be reliable private source, impression given is that, in a recent judgment of Karnataka High Court it has been ruled that “registration under Societies Act is illegal if property is under provisions of Apartment Act.”
A personal search has yielded no result. If true, and should anyone know, it is desired, rather urged, that the info. is, to serve the unmistakable aim of public–centric purpose, shared by preferably making available a copy of the court’s verdict on the mentioned long pending vexing issue,
That should greatly assist / lend strong credence and every force to the suggested attempts to crying a halt to the thus far continuing Irregular practice.
Of course, the need there for has continued to be persistently canvassed, even otherwise, without the necessity for a court verdict, on the referred point, basically a non-issue.
Attention is invited, albeit for a limited purpose, to the write-up @ http://bangalore.citizenmatters.in/blogs/eye-shot/blog_posts/confident-group-bangalore-antlia-scam-irregularities
To set out own independent reaction:
Some of the comments therein seem to imply that any irregularity or illegality in such matters , whether it pertains or concerns the promoter or its clientele is mainly an ‘internal’ matter , hence do not require to be given any publicity or call for external interference or opinion; even should that be from an unbiased or impartial source having no vested interest but is prima facie aimed solely at public interest/for the common good of the apartments community as a whole.
To say the least, such a view is patently misconceived and needs to be reviewed predominantly having in mind all connected out-of-box supervening considerations.
For a brief hint as to why so, attention is invited to the earlier posted comments herein;
so also elsewhere on this very website.
Poser need to be repeated : Is it not the same wrong thinking/approach that has led to the increasingly muddled state of affairs e.g. proliferation of ubiquitous RWAs obtaining amongst apartments community.
Jug Suraiya’s article in today’s Issue of TOI is noted to carry a connected message; and is worth a read.
For a detailed examination of the field reality, one may look up the numerous posts on the special project @praja.in.
dear sir,
the information provided from you is really help full . i have a very simple question to you this is actually a major problem for me. it would be very helpful if you answer me this question.
is the apartment owners association registered with Karnataka owners association has the right to destroy the fountains, sauna bath area and common areas. because we had two beautiful fountains in our apartment but both of them have been closed permanently. and the have never tried to maintain it.
Hi, I plan to buy an apartment in Bangalore. its an 10yr old building. The deviation of the property is 80% to 90%. Few nationalized banks are ready to provide home loan. Is it safe to buy such an apartment? Is there a risk in future of the building getting demolished by local authorities like BBMP, etc? Any guidance in this matter will be highly appreciated. Thank you.
Hi, i would like to understand on any case laws related to payment of car parking area while purchasing a flat. I have already paid the money for car parking also. Now I have understood that the builder can not collect on allotment of car parking. I want to understand further more before I approach the builder. I would appreciate guidance in this matter.
I have purchased an apartment. There are totally 24 apartments.Building is complete in all respect. All the apartments are registered in the name of apartment owners. Apartments have been handed over to the owners. Now, we have to form home owners association and get it registered. As per your article I came to know that the same has to be registered under KAOA act. Our builder is not taking the responsibility in registration of Association and he has thrust the responsibility on the owners. Khata is not yet transferred in individual apartment owners name. Firstly, we want to get the khata transfer. Here the problem is builder has done lot of deviation in building when compared to sanctioned and approved plan.Only through your article I came to know about the deed of declaration. Whether builders signature is to be obtained on the DOD. More over architects certificate to the effect that the building has been built as per the sanctioned and approved plan has to annexed to the form A(DOD) which not possible in our case. Please suggest a solution with regard to how to proceed further.
To share (for the common good)
Sub: WILL ,NOMINATION, et al
Attention is drawn to the latest feedback material at the following links in public domain:
https://www.youtube.com/watch?v=0Jws0Eqhvxg
https://www.youtube.com/watch?v=EJ_k7KyG0Sw
https://www.youtube.com/watch?v=cGYj1YCQL7w
For Apartments in Bengaluru (KAR), the Mumbai based tax cum property law expert- Advocate’s advice may not ipso facto/on all fours apply, on all points. May not be of direct guidance as such, nonetheless provide, -if intelligently heard and understood, valuable clues. The crucial distinguishing facets that call for a special focus are briefly these: In KAR, the law on Apartments has largely remained to be implemented /enforced , both in ‘letter and spirit’.’ and is virtually a dead law. In particular, besides there being no duly formed and recognised “Owners’ Association” as mandated by the KAOA,
Practices of Issue of a “ share certificate” to purchaser-occupier and recognition of his legitimate right to the facility of ‘nomination’ , by and large, are un-heard of, -known. So much so, unlike in Mumbai (MAHA) , there is, strictly and legally, no way /safeguard open for ensuring smooth ‘passing of the property’ to the successor/ beneficiary on the demise of its present holder.
It is a self-created tragedy that the stalemate stubbornly continues.
Rider (few more thoughts to share, to inspire): On The last made point wrt usefulness of ‘Nomination’ facility, of course, in general, nominee’s status is that of a ‘trustee, and does not automatically become the ‘owner’. Nonetheless, most certainly, as imagined/viewed, in one’s conviction, it must be a boon and save lot of hassle, particularly if the property holder takes a conscious decision, while alive, by designating as ‘nominee’ the same person (s) whom he clearly intends to become the owner (s) and entitled to lawful ownership, So far as is seen, it appears, there could possibly no pitfall. Anyway, so far as Bengaluru (KAR) is concerned, presently it has the prospects of remaining a pipe dream , as there is no enabling provision of law or rule ; unlike in the case of CHS in Mumbai (MAHA)..
Nonetheless, Invited to look up related posts @ http://praja.in/en/blog/murali772
Any workable idea or view from anyone else ?
TAG – Should a multi-storied apartment complex association register itself under Societies Act?
There are many doubts among the Owners of apartments, on registration of apartment owners association.
2. The apartment Owners association, has to be necessarily to be registered only under Karnataka Apartment Ownership Act 1972 only.
3. Many Advocates and experts misleading the Apartment Owners to register under Scoety’s Act 1960.
4. First and foremost, the process as stipulated in the KAO Act 1972, is not being followed by all the Builders and as in absence of stringent law to monitor this lacunae, most of the practicing Lawyers and professionals misguide all the apartment owners to form and register the association under Society’s Act 1960, which does not have any provision to register such apartment owners association, thereby violating the very purpose of KAO Act 1972.
5. The act of registration of Association under the Karnataka Societies Registration Act, 1960 (in short KSRA) itself is illegal as there is no provision in the said act to register the Apartment Owners Association mainly undertaking the routine maintenance activities, repairs, painting, providing various facilities connected with apartment living.
6. According to KAOA, the owners of all apartments form an association. Although the association is not registered, its officeholders are given powers.
7. But the KAOA does not elaborate the role of association in the whole lifecycle. It does not specify that a customer becomes a member as soon as he books an apartment (as per KOFA).The builder exploits this by denying the existence of an association that lets the customers exercise their rights unitedly.
8. There are many Lacunae in Karnataka Apartment Ownership act 1972, which needs to be amended by raising a strong voice unitedly.
M.S.SHANKAR – msshankar1961@gmail.com
‘@Shankar Srinivasan
Instead of the oft-suggested, but so-far-unsuccessful recourse that has failed to even take-off , is it not worthwhile to consider and explore, the alternative but seemingly better and speedy course of action for buyers’ community, having been ‘pushed to the wall’,- if so advised by eminent law experts , by directly invoking the “fundamental right” – as has come to be added by the 97 th Amendment of the constitution- to form a ‘society’ or ‘association’ ?!
For a backdrop / clues (feedback) , may look up , –
@http://praja.in/en/blog/m…
Update – A Prelude <
UPDATE contd.
<<<
http://vswaminathan-swamilook.blogspot.in/2014/12/will-how-and-why-to.html
http://vswaminathan-swamilook.blogspot.in/2014/12/resources-corner-for-thinkers-only.html
Hello,
Can someone please tell me at what point does a building form an association. ie. when does it get registered?
Can the tenants continue to stay without the association being registered, and still in control of the builder?
Any info in this matter will be greatly appreciated, thanks!
Hi
There are many apartment projects existing with good deals. Jusit click https://www.realtycompass.com/apartments-around-nandi-hills-in-bangalore-north
https://www.realtycompass.com/apartments-around-varthur-road-in-bangalore-east
I had apiece of 35*90 at ms nager ,i gave it to joint venture with 3flat for me and 4 to the builder,builder sold his 4 flat & everybody got their khatha in there name,we are maintaining our maintainance expenses by dividing into equally.My question is we have not given extra land & terrace to anybody and retained ourselves,one of flat owner is insisting to put solar tank and tv dish with our permission on the terrace inspite of opposition from others,he argues that terrace place is above is flat [top most floor],we are not registered with any departments nor have anything in writing as builder is not coming into the picture.It is only 7 flat apartment.can anybody suggesst what action can i take against him.Any additional information and rules & regulation is welcome
‘@Rajkumar. Sir with all due respect and no offence would like to mention that since it is no longer ur own house and it is an apartment, flat owners will definitely someday or the other will try to utilize the common amenities like terrace, garden, parking (unless reserved parking). If you want to retain the occupancy on the terrace I guess it would be unfair towards other flat owners. I too had the same issues when I lived in an apartment bcoz the owner of the top most flat did not allow us to use the terrace and claimed that terrace was under His occupancy even though there was nothing mentioned in the sale deed, etc. bu the builder. If such a case if someone wants to have restrictions then one must clearly mention it before selling their flat/property. Since you mentioned that maintenance cost is divided equally among all flats then I strongly feel that common amenities must also be shared.
Hi All,
I live in south of Bangalore in apartment complex called sterling terraces. Its been 7 to 8 years so far, the apartment owners have formed an association however, its not yet registered. My question : Do the association have rights to define by-laws and follow the by-laws (even though DoD is not taken place so far) with day to day operations like collecting maintenance and sinking fund. levying penalty up to 24% for non-payment of maintenance charges etc.,?
Hi All,
I live in south of Bangalore in apartment complex called sterling terraces. Its been 7 to 8 years so far, the apartment owners have formed an association however, its not yet registered. My question : Do the association have rights to define by-laws and follow the by-laws (even though DoD is not taken place so far) with day to day operations like collecting maintenance and sinking fund. levying penalty up to 24% for non-payment of maintenance charges etc.,?
Dear Sanjay,
I have 2 questions:
My apartment association Shriram Surabhi Apartment Owners Association in Bangalore, Karnataka has registered it’s Deed of Declaration(DOD) and bylaws as per KAOA 1972.
1)Will registering the Deed of Declaration (DOD) and bylaws implicitly registers the association automatically or there’s still additional process involved in registering the association and as of today the association can be deemed to be not registered?
2)Is the association legally valid with only with it’s DOD and bylaws registered for it to fight a case in court or it has to be formally registered with a registration number?
Would be grateful if my doubts are cleared.
Thanks and Regards,
Srinath.R
Shriram Surabhi Apartment,
Bangalore -560062.
I am one of the registered owners of one of the unregistered flat owners’ Associations at Chennai.. there are 14 flats properly owned by every owner and its run by elected office bearers of our association.. Now that the secretary and some of the owners are interested in registering our association as a society with lots of bye laws and regulations.. But some of the bye laws and other valid reasons that are more visible to me for not getting our association to be registered now One of them is safety of the building itself in question mark and if there is a move for getting it reconstructed it would be great but to get a good name in making the association the present secretary wants to get a good name for getting this action and this also makes him to be strong enough to have control over everyone of us I just want to know if I donot nod my head for this registration will the current rule is sufficient for them to register? Or even after registration what would happen to the common facilities like electricity supply and water supply to those owners who are not willing for registration? Can you please clarify? Thanks
Liability of dues of old owner of the apartment
1. There are provisions for realisation of the arrears either from the old owner or the new owner of the apartment. Please read the Section – 16 of the West Bengal Apartment Ownership Association, 1972: Liability for unpaid common expenses : Upon the sale of an apartment, the purchaser of the apartment shall be jointly and severally liable with the vendor for all unpaid assessments against the latter of his share of the common expenses upto the time of the sale.
Commentary: Scope of the Section:-
This Section has fastened liability for payment of unpaid common expenses both the vendor as well as the purchaser of the apartment after sale of apartment and such liability shall be joint and several. Both of them shall bear the said liability for all unpaid assessments against the vendor for his share of the common expenses up to the time of sale and will continue to subsist till the date of payment of such assessments. Thus, this Section safeguards the interest of all apartment owners so that one apartment owner cannot evade his liability by selling the property to a third person or even to an apartment owner of the same property. The use of word “sale” excludes other transfers as contemplated in Transfer of Property Act.
Liability, joint and several:-
So far as the joint and several liability is concerned, reference can be made to Section – 43 of the Indian Contract Act.
2. Please read also the Bye-laws – 28 of the West Bengal Apartment Ownership Act, 1972:-
Sale of apartment to be notified to the Board:-
An apartment owner who sell or otherwise transfers his apartment shall immediately notify the Board of the fact stating the name of the purchaser or transferee and his address.
Similarly, the purchaser or transferee of the apartment shall immediately, apart from executing and registering an instrument in the form (FORM-A), as provided for in clause (ii) of sub-section (3) of Section – 4 of the West Bengal Apartment Ownership Act, 1972, notify the Board concerned about his ownership or interest, as the case may be, of the apartment in question.
3. Please say “common maintenance charges” instead common expenses fees etc or like that.
Please read Section – 15. of the West Bengal Apartment Ownership Act, 1972 : Charge for property of common expenses:-
All sums assessed by the Association of Apartment Owners for the share of common expenses chargeable to any apartment shall constitute a charge on such apartment prior to all other charges, except charge, if any, on the apartment for payment of municipal rates and taxes.
Payment of common expenses and assessment of all other sums payable as charges:
As per Section 3 (e) of the West Bengal Apartment Ownership Act 1972,
“Common Expenses” means expenses of administration, maintenance, repair or replacement of the common areas and facilities and all other sums assessed against the apartment owners by the Association of Apartment Owners.
Commentary: As this Act lays down the provision for formation of an Association and entrusts it with the powers and functions of administrating the property concerned, the Association is entitled to assess the expenses and all the sums for the administration of the property.
The function of an Association as specified in clause (2) of the bye-laws 4 as well include for maintenance, repair and replacement of common areas and facilities of the property and payments thereof.
Section 9 of this Act charges the Apartment Owners with the duty of paying the common expenses according to the percentage of undivided interest in the common areas and facilities.
Section – 15 of the West Bengal Apartment Ownership Act 1972, defines the detail of charge for payment of common expenses as
All sums assessed by the Association of Apartment Owners for the share of the common expenses chargeable to any apartment shall constitute a charge on such apartment prior to all other charges, except charge, if any, on the apartment for payment of municipal rates and taxes.
Commentary: Scope of the Section: This section provides for the creation of a charge on the apartment for all dues assessed by the Association on account of share of the common expenses. This section is also intended to provide the facility to the Association for realization of all sums assessed on account of the share of common expenses as expenses for administration, maintenance, repair and replacement of common areas and facilities and all other sums assessed against any apartment by the Association.
In addition to that and as we are facilitated to use the common areas and facilities against specific charges, for personal need and necessity as specified in the bye-laws, the arrear of dues as assessed by the Association on that account shall constitute the charge against that apartment. Non-payment of such dues will lead to be labelled as defaulter. Personal use of common areas and facilities for car parking or arranging social function etc, as permitted by governing body, is to be considered as “use of common areas and facilities for personal purpose against specific payment obeying the permission of Governing Body.
Charge, meaning of — This Act has not defined “charge” and as the provisions contained in this section are in no way inconsistent with the provisions contained in the Transfer of Property Act, the provisions in the latter Act will apply.
Section 100 of the Transfer of Property Act dealing with “charge” provides as follows: – “When immovable property of one person is by act of parties or by operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions herein before contained which apply to a simple mortgage shall as far as may be apply to such change”.
So, as far the above noted Section, a charge does not amount to a mortgage though all the provisions which apply to simple mortgage shall insofar as may be applicable to a charge which we are discussing. The word “charge” only gives the right to payment out of a particular property without transferring the property. A charge can be created either by act of parties or operation of law. Therefore, the word “charge” is only a security for repayment of money. “Charge” has got the legal power for enforceability against transferee also.
Effect of this provision — Section – 15 of this Act constitute merely a charge in express language upon such apartment and all assessed sums payable on account of share in common expenses including any other dues have been made prior charge to all other charges except Municipal taxes.
This Section however contemplates creation of a charge by operation of law and as such it is a statutory charge.
It is justified that an intending purchaser of any property in municipal area, where the property is subject to the municipal tax, which has been made a charge upon the property by statute, should have constructive knowledge of the tax and of the possibility of some arrears being due to the said property. If that intending buyer or transferee fails to make their enquiry, such failure amounts to a wilful abstention or gross negligence with the meaning of Section – 3 of the Transfer of Property Act and notice must be imputed to them.
Similarly, it is also justified that an intending purchaser of any apartment, situated under the administration of the Owners Association, should have constructive knowledge of the possibility of some arrears being due against such property. If that intending buyer or transferee fails to make their prior enquiry with the Owners Association, such failure amounts to a wilful negligence from his part which cannot evade his liability on any dues.
Conclusion: None so blind as those that will not see.
*** Taken help from the book: Law of Ownership of Apartments/Flats in West Bengal by Tapas Kumar Mukherjee
Compiled and Written by Subrata Banerjee, bukambabu@gmail.com
The latest media report (TOI) says, – http://timesofindia.indiatimes.com/india/India-to-get-own-version-of-class-action-lawsuits/articleshow/47364396.cms
Reproduced below, on a selective basis, an important feature of the improved consumer protection law in the offing, in which is incorporated the welcome idea of ‘class action’:
Q
As the term is usually defined, a class action suit is one in which one or several persons sue on behalf of a larger group of persons, referred to as “the class”. However, the Indian version will not allow individuals to sue on behalf of a larger group, but will empower an authority to make rulings applicable to larger groups.
UQ
All those having a direct concern are obliged to sit up, closely read and insight fully understand the not-so-obvious implications, of the above cited wordings. Should one go by the wisdom gathered from past experience, it is imperative to take a conscious note and be alive to the inherent disadvantages and short comings in anyone or more individuals, -not the entire group or a majority of them similarly placed and equally aggrieved,- moving the court for remedy; that too, except under competent and reliable expert advice/active assistance. Some of the hints provided in previous comments may be looked into for useful guidance.
That the Indian version “will empower an authority to make rulings applicable to larger groups”, in any view, may not be desirable, saving as an exception to the rule. And, in any case, that might not be desirable /acceptable at all should any ruling in a given case happen to be adverse to the consumers in common. As such, this as well as all areas similarly of common concern require to be mindfully gone into and suitable representations effectively made and diligently pursued, so as to avert the otherwise possible consequence of the new enactment placing consumers in an unenviable / worse position, than now.
Hi Sir,
We have purchased an apartment in Nagawara. It was 34 lakhs in total. Out of that 27 lakhs we took loan from SBI and rest we paid in cheques or cash. Its under construction now. Its a 4 storey building and now 2nd floor roofing is done. We want to sell it now as we are facing severe monetary issues in paying the money.
1)How can we stop the EMI from bank?
2)what to say to the builder?
3) How much am I liable to get back?
Sir, as this is the 1st time I have purchased any property am little scared as from where to start with the selling.
Thanks for your detailed Article Sanjay.. Even after 3 years of you writing this article still things do not appear to be smooth. Now I am part of an apartment owners association which formed recently and would like the same to be registered. I would like to seek few quidelines from you. Please can you assist me by providing your contact details at my email bibin81@yahoo.com
‘@Bibin
Craving special leave of the author, hoping to be excused :
The write-up thanked for, is undeniably one in such a simple but lucid language, as none really concerned and deeply interested in, can fail to clearly make out , with no scope left for misconceiving, what the governing law lays down/mandates. Of course, for knowing what the law does not say/mandate but yet as to what is the ongoing contrary practice, that has come to stay as a fact of life, it is earnestly recommended to care, go to and read through the write-up. Further, to keep posted self with updates on the website of praja.in (the link to which has been given in previous posts):
TO ADD:
Soliloquy: The astounding feature of a recent episode is part of the thriller mega serial. It is about a well known and popularly sought after high-end promoter of building complexes. All the more plethorable is, – the continued state of affairs is a sad commentary, to the host of useful material placed, at great pains, in the subject write-up , also in the rest in public domain @praja.in; and made available for free viewing. The underlying message has dogmatically failed to percolate through, and have had no marked effect on one and all concerned; strikingly, not barring the incorrigible buyers’ community itself having vested interests. Significantly, even the buyers in recent times have jumped onto the same bandwagon, unwittingly, as did their forerunners /trendsetters blindfolded all along; albeit, they in their own self interests, if not the common interests, were avowedly expected to have woken up, as if it were after a horrendous dream, long ago.
Dear Sanjay,
We have bought a flat with one of the reputed builder’s of Bangalore. However, even after several meetings with them, they never came forward to complete the promised amenities. Now, they are bringing in a 3rd party vendor and are also planning to build an Apartment Owners Association under 1960 Act. We have been told that they have about 43 flats (some sold off, but the buyers have not taken the possession and some are still unsold). Now my question to you is : If we go for elections (as they have been pressurizing us and are not going with the representatives whom we have selected), plus they want only 5 -7 people in this Committee, whereas we have given them a list of 15 people. Can’t we form an association with these 15 people. Secondly for these 43 flats (sold but not handed over and some still unsold), do they have 43 votes with them or only 1 vote. If you have any link referring to the law book, please share. This will be a great help to me, and we would need answers as early as possible. Thank you.
The act of registration of Association under the Karnataka Societies Registration Act, 1960 (in short KSRA) itself is illegal as there is no provision in the said act to register the Apartment Owners Association mainly undertaking the routine maintenance activities, repairs, painting, providing various facilities connected with apartment living.
If we go through the Statement of Objects and Reasons of enacting KSRA during 1960 and also section 3 and 5 of the Act.IT IS AN ACT TO PROVIDE FOR THE REGISTRATION OF LITERARY, SCIENTIFIC, CHARITABLE AND OTHER SOCIETIES.
Section 5 of the Act- mode of forming societies- Any seven or more persons, above age of eighteen years associated for any purpose specified in section 3 may, by subscribing their names to a memorandum of Association and otherwise complying with the requirements of this Act and the rules made thereunder, in respect of registration, form themselves into a society under this Act.
Section – 3 : Societies to which the Act applies.- The following societies may be registered under this Act, Societies established for,-(a) the promotion of charity;(b) the promotion of education, science, literature, or the fine arts;(c) the promotion of sports 1[x x x x x]1;(d) the instruction and the diffusion of knowledge relating to commerce or industry or of any other useful knowledge;(e) the diffusion of political education;(f) the foundation or maintenance of libraries or reading rooms for general use among the members or open to the public, or of public museums and galleries of painting and other works of art; 2[(ff) the promotion of conservation and proper use of natural resources and scarce infrastructural facilities like land, power, water, forest and such other resources and infrastructural facilities as may be notified by the State Government from time to time.] (g) the collection of natural history, mechanical and philosophical inventions, instruments or designs; and which intend to apply their profits, if any, or other income in promoting their objects and prohibit the payment of any dividend or distribution of any income or profits among their members.
1. In section 3 clause (c), the words- “Other than Horse Riding” was omitted by Amendment Act No.7 of 1978.
2. In section 3 cause (ff) was inserted by Act No.9 of 1999
Since 1960, The KSRA was amended on more than 10 times and section 3 was amended on 2 occasions as mentioned above. Apartment Owners Association was never included in section 3.
While enacting the two Apartment Acts during 1972, though KSRA was in force the legislatures never thought of registering the Apartment Owners Association under the said Act. They have only mentioned about registering the Apartment Owners Association under Co-operative Act or Companies Act or under the new Act i.e. KAO Act, 1972.
The most alarming fact is that the State allows registration of apartments sale even when the complex is NOT submitted to KAOA! KAOA states in its prefix itself that the right to own (and sell) an individual apartment only when the property is submitted to it. As a direct result, the customer does not get any of the protections provided in KAOA and KOFA.
According to KAOA, the owners of all apartments form an association. Although the association is not registered, its officeholders are given powers.
In fact, the deed of declaration was supposed to be registered by the Builder, much before the conveyance of sale deed to individual owners by Builders and most of the Builders does not do this as the Karnataka Apartment Ownership act is having a lot of lacunae.
When, the Builder fail to register the D O D prior to conveyance of sale deed to individual owners then, the Deed of Declaration** is required to be signed by all Owners at the Sub –Registrar’s office. Practically it is impossible to gather all owners to come to Sub- Registrar’s office and for this it is necessary to obtain a special power of attorney on few active volunteers to represent those owners at Sub-Registrar office to register the D O D , Bye Laws , Schedule -1 and Approved Plan / Occupancy Certificate.
** The Declaration shall contain the following particulars, namely:-
(a) description of the land on which the building and improvements are or are to be located; and whether the land is freehold or leasehold;
(b) description of the building stating the number of storeys and basements, the number of apartments and the principal materials of which it is or is to be constructed;
(c) the apartment number of each apartment, and a statement of its location, approximate area, number of rooms, and immediate common area to which it has access, and any other data necessary for its proper identification;
(d) description of the common areas and facilities;
(e) description of the limited common areas and facilities, if any, stating to which apartments their use is reserved;
(f) value of the property and of each apartment, and the percentage of undivided interest in the common areas and facilities appurtaining to each apartment and its owner for all purposes, including voting; and a statement that the apartment and such percentage of undivided interest are not encumbered in any manner whatsoever on the date of the Declaration;
(g) statement of the purposes for which the building and each of the apartments are intended and restricted as to use ;
(h) the name of a person to receive service of process in the cases hereinafter provided, together with the residence or place of business of such person which shall be within the city, town or village in which the building is located:
(i)provision as to the percentage of votes by the apartment owners which shall be determinative of whether to rebuild, repair, restore, or sell the property in the event of damage or destruction of all or part of the property;
(j)any other details in connection with the property which the person executing the Declaration may seem desirable to set forth consistent with this Act: and
(k) the method by which the Declaration may be amended, consistent with the provisions of this Act.
(2) A true copy each of the Declaration and bye-laws and all amendments to the Declaration or the bye-laws shall be filed in the office of the competent authority.
At Sub-Registrar office, all the submitted D O D, Byelaws, Schedule -1, etc., are scanned and indexed in Form Book IV Register along with pictures taken of all SPA holders ( Special Power of Attorney ) and the serial number is mentioned in the registered documents. With this process the formation or submission of association to the provisions of Karnataka Apartment Ownership Act is completed at Sub- Registrar’s office.
Regarding, the voting rights, there are 2 cents of interpretations:
1. As per KAO Act 1972, each and every apartment sold / registered with a sale deed with proportionate undivided share of land is eligible for voting rights as per percentage/value only to the be determinative of whether to rebuild, repair, restore, or sell the property in the event of damage or destruction of all or part of the property;
2. As per bye laws as per provision of KAO Act 1972, each Owner who is a member and submitted the property by way of Deed of declaration, has got a voting right
I am assisting voluntarily all apartment owners to accomplish the formation of association, as per KAO Act 1972.
M.S.SHANKAR.
Apartment purchasers may go through the below website of Inspector General of Stamps & Registration. (Please open the link and then go to – FAQ and then go to – Flats and Apartments)
http://202.138.101.165/karigr/
Please see the answer to Q. No. 4
Q 4.How to acquire ownership under Apartment Act?
Ans. The deed of apartment should be signed and registered (Please see Karnataka Apartment Ownership Act 1972 and Rules 1975 for details)
Q 10. Is it not possible to become owner of flat/apartment by purchasing undivided interest in land only,through a sale deed ?
Ans. It is not possible to become owner of flat/apartment by describing only undivided interest in land in the sale deed?
Q 11. What are the precautions to be taken while purchasing flat/ apartment? Refer point No.vii
Ans. While purchasing flat/apartment, the following matters may be verified and ascertained that they are correct:
Ans. (vii) Verify whether deed of declaration and Co-operative society or company is formed and registered.
In Karnataka, there are three types of apartment communities that can be formed. A promoter can float a company or cooperative society under KOFA. These are two options. Alternatively, the third option envisaged in KOFA is for the builder/promoter to form an association of owners under the KAOA by registering a Declaration. Forming a company is a pretty rare approach. In a cooperative society set-up, the ownership of building, common area and land is vested with the cooperative society and the the flats are allotted to its members (i.e. purchasers) by the Cooperative Societies and allottees of the flat are deemed as “tenants” of the society. The enactment of KAOA is to give ownership title of the flat/apartment to the individual owners along with the ownership of undivided share of the land of the project/common properties.
The Sub-registrar is a subordinate official of Inspector General of Stamps and Registration. He has to verify before registering the apartment whether a Cooperative Housing Society or a Company is formed. If not formed, he has to check whether Declaration as required under KAOA is registered. All the apartment purchasers should convince the sub-registrar (and also the builders) on the point mentioned in Q. 10.
Q 10. Is it not possible to become owner of flat/apartment by purchasing undivided interest in land only,through a sale deed ? Ans. It is not possible to become owner of flat/apartment by describing only undivided interest in land in the sale deed?
Mr. Sanjay Vijayaraghavan has written an excellent article on apartment act which is very much useful to all new purchasers of apartments.
Ajit N. Naik
Further, it has been made mandatory by Registrar of Co-operative Society to insert one New paragraph while registering any association under Soceity’s Act 1960, which makes it evident that Apartment Owners association registration under Society’s Act 1960 is not to be undertaken by the Registrar of Co-operetaive society.
The New Paragraph which to be inserted is :
“Not withstanding anything contained in the objectives and Rules & Regulations of this association, the association does not mange and control over the property, common areas and facilities of the apartment,since this association is not as that of the association of apartment owners as per Karnataka Apartment Ownership Act 1972 and Karnataka Apartment Ownership Rules 1974 and Karnataka Owners Flats ( Regulation of the promotion of construction, sale, Management and Transfer) Rules 1975. Apartment Owners did not filed their declaration before competent authority as per rule 4 of Karnataka Apartment Ownership rules 1974. ”
All, associations which take care of apartments’s maintenance of common areas and facilities are mandatorily to be registered only under Karnataka Apartment Ownership Act 1972 and all the owners to file declaration before competent authority as per KAO Act 1972 rules to create proper title of the property.
Dear Mr. Shankar,
Is it mandated by Registrar of Co-operative Society or IGSR (Inspector General of Stamps and Registration} to include the above referred paragraph? It may be IGRS as society registraton is under his department. You may refer to the link referred by me earlier.
http://202.138.101.165/karigr/
Is there any authenticated written instruction from the Inspector General of Stamps and Registration to the Registrar/Dy. Registrar of Societies about inclusion of above referred paragraph.
It appears that the concerned department under IGSR is in favour of continuing the illegal method of registration of Association of Apartment owners under KSRA, 1960 by incorporating the above paragraph in the byelaws.
Is it possible to find out the source of such instructions and reasons of issuing such instruction now?
Ajit N. Naik
Nice compilation about what needs to happen ‘IDEALLY” in Karnataka with respect to apartments. This is a good academic read rather than practical implementable solution as of today. Unfortunately unlike other cities like Mumbai, where registration of flats are governed by stricter laws, in Karnataka, there is poor implementation of available legal instruments like flat acts. Most of affordable apartment housing is out of scope for this implementation as depicted above and taking the corrective course for such majority housing in karnataka entails bad schemes like akrama sakrama. All the legal perspective depicted by experts above in this column are exclusive i.e from legal point of view and NOT inclusive i.e from home owner point of view. I have been following this KOA ACT since 2011 when i purchased a flat in bangalore and feel that no government stakeholder has taken responsibility for complete and successful implementation and enforcement of this ACT. Ultimately the blame will go to home owners for not registering associations within KOA act. Is there any precedence cases regarding this issue in karnataka courts that can offer some logical solution rather than academically enriching sentences.
An aggrieved home owner,
Ramanujam
REACTION
Apropos of a few previous posts on the ‘RERA Bill’, herein and elsewhere as well, as has since been brought to focus, though belatedly, in some closed quarters, the opinion of two of the eminent property law experts @
https://www.youtube.com/watch?v=5IFQvVW2lkE
https://www.youtube.com/watch?v=rI6RdxVD0bI-
must not be bypassed in a cavalier fashion but out rightly require to sit up and be taken a conscious note of, before taking on.
In short, however, so far as mindfully heard and incisively understood by one, the opinion of the experts is to the effect that, in the ultimate analysis, the proposed legislation, if were to get enacted, as presently framed and structured, is bound to pass muster as a ill-thought out law, and quite likely to even remotely serve the very objective of the idea behind.
in the last but one line from bottom- – to be read – ‘unlikely’
An Update
OFFHAND ( a well -intended message, for holders of ‘apartments’ in metros / cities (e.g. in Bengaluru) )
The slogan as shared, if considered shrewdly and in proper perspective, is not without meaning or substance. If viewed independently or collectively, it may be realized , caries an important message to every fellow human , not barring ‘you’ (or me- the self) ; that is, it purports to convey, rather implicitly but succinctly explains, as to why , especially in today’s … https://www.facebook.com/swaminathanv3
Tanisha Queen’s photo
“if you want to be strong, learn to fight alone”.- if, however, were to be truthfully viewed but in a different perspective, that should read; should one be strong (-willed, with a goal set in mind) , may be, with no alternative/choice left, be obliged to fight a battle, to the end, alone.
Hi,
We have registered our association under KAOA but the problem we are facing is with KAOA there is no mention of President in Registration document. How did you manage to get a legal document mentioning names of office bearers?
Thanks,
Phani.
To Repeat and reiterate:
The legal significance and implications, and the utmost importance, of issue of a Share Certificate by a housing society have come to the fore in a court decided tax case.
Recommend to look up the write-up displayed HERE
http://www.lawyersclubindia.com/articles/Income-tax-Law-vs-Property-Law-A-Case-Law-Study-7006.asp
Face book on which the feedback input has been shared –
https://www.facebook.com/swaminathanv3
To take a conscious note :
Issue of a Share Certificate by a housing society is intended to serve mainly two purposes:
1. To prepare and maintain a “Members’ Register”; and
2. To keep it updated in the event of any change in membership.
All the more importantly, to help the members for their individual tax purposes.
Rider; As per one’s understanding of the governing State special law, the requirement of Issue of a Share Certificate to its members , for the first time, ,by a housing society – registered as CHS of Flats or Owners’ Association of Apartments (AOA) , strictly speaking, calls for compliance soon after the promoter / vendor has effected the final conveyance of the property in the building complex, to the CHS or AOA as the case may be.
An Update On (Central) Regulatory for Realty Bill:
As shared on Facebook @
https://www.facebook.com/swaminathanv3
wprt a couple of write-ups placed in public domain; may cross refer HERE
http://swaminathanv208.blogspot.in/2015/12/reality-x-realty.html
ATTENTION: A Repeat Call to the Pro-activists
Apropos of the feedback input as previously shared on the topic of the new legislation by Maharashtra, called – HRA , to govern sale of ‘Flats’: If care and mind to look around, and take a conscious note of further recent developments, recommend to look up and share, for the common good, the added input feedback @ http://swaminathanv208.blogspot.in/2016/01/regulatory-for-realty-contd.html
A Supplementary @ http://swaminathanv208.blogspot.in/2016/01/regulatory-law-maha-contd.html
An Update
To look back @:http://taxguru.in/chartered-accountant/empanelment-auditor-audit-cooperative-societies-fy-201213.html#comment-2476815802
It is now over 3 years since then, with still no awareness much less awakening, more so any positive move forward in the desired direction from one and all who-must be-most-concerned in own interests !
While on the topic, off and on, sporadic doubt is raised in certain quarters and further, being pursued with all seriousness, in one’s view unwarranted though, regarding annual filing of ‘audited final accounts’ of a AOA, and with ‘sub-registrar’ . Such a confusion or misconception, it is noted, persists especially among the AOAs in Karnataka. As is to be readily surmised, however, such a confusion or misconception is principally attributable to the largely obtaining fact / reality that almost all AOAs in Bengaluru and other places in Karnataka have been, and even to date, continue to be, registered under the Societies Registration Act (i.e. with the Registrar of Societies as per that Act), as RWAs; AND NOT, as strictly and rightly required, under the Housing Co-Op Societies Act (i.e. with the Registrar of Co-Op Societies) as AOAs.
So far as one is aware, there is no such requirement EVEN for any ‘CHS’, – in places like Mumbai, – a duly registered Housing Society with the competent authority i.e. REGISTRAR OF CO-OP SOCIETIES under the Co-op Housing Societies Act. That appears to be the present position, with no modification, even after the recently introduced changes in the Rules and Bye laws as appertain to, inter alia, the accounts and audit of a CHS.
And, to be precise, right from inception, that happens to be so for decades now; so far as known, anyway, there is no similar Act (or Rules and Bye laws) applicable to and in place for AOAs; that is so, both in Maharashtra , being the role model, and any other State , including Karnataka.
Any owner of a ‘FLAT’ (or Apartment) in Mumbai is expected to be well aware of, had there been any such requirement of filing of annual audited accounts with any authority; more so, of all, with the ‘sub-registrar’, who is in no way concerned or empowered to require and /or accept any such filing.
Perhaps, the author of the subject write-up, and / or other Property law pundits, -who are supposed to be suitably / better equipped hence must be competent to advise and guide in proper light – are invited to comment / share views, should those have a materially different perception / well considered contrary view; or be feasible or possible.
Can someone tell me if the Deed of Declaration made by the builder before selling the apartments and signing the Sale Deeds, be amended at a later point without the permission of the owners/residents of the said apartment ? Also, after 5 years, how does the builder have the right to amend?
What about the new Real Estate Bill, could the Citizen Matter team, Sanjay Vijayaraghavan and vswaminathan explain the pros and cons and any way we could remedy the shortcomings?
An Update;
As per copied below*, the official text of the Bill indicated though, is not accessible for viewing :
*2013 THE REAL ESTATE (REGULATION AND DEVELOPMENT) BILL, 2016
As introduced (745 Kb) , As Passed by Rajyasabha (183 Kb)
As regards the points made in the lawyer’s write-up, those covered in greater details is HERE
http://www.prsindia.org/…/the-real-estate-regulation-and-d…
A Fresh Alert (fyi)
http://newsalert.thehindubusinessline.com/a/hBW$01mB9HlMxB9JumFAAAbF-KP/hind84
How to be @home in a gated community …
Is it to be suffixed with a dhobi mark, – ‘Q’ or ‘!’?
Excerpts (selectively):
Q
“Gated community is not explicitly acknowledged UNDER THE PRESENT REAL ESTATE LAWS. “
“Buyers end up paying a premium for a concept that is not backed by law, says Upadhyay.”
“Also, home owners’ association rules ARE GOVERNED BY CO-OPERATIVE SOCIETY RULES and not APARTMENT ASSOCIATION RULES.”
“As a result, enforcing bylaws and collecting dues are a hassle, he notes. Until new rules are formed, buyers must be cautious and understand that the premiums they pay may not get them what the brochures promise.” ” (FONT supplied)
The write-up is neither helpful nor provides any clue or solution to either buyers of ‘GC’ or of apartments’ as to where exactly they stand in the eyes of the generously referred ‘rules’ or ‘law’; even granting for the nonce that there do really exist such rules, laws, byelaws, at least on paper, covering and to take adequate care of the two main aspects /concerns of ‘ownership’ and ‘maintenance’.
May be, duly equipped / knowledgeable property law experts, preferably other than exclusively partaking in such discussions as social activists, at large do have some enlightening information up their sleeves, to share.
A feedback
http://timesofindia.indiatimes.com/city/bengaluru/BWSSB-to-apartments-Install-STPs-in-3-months-or-pay-fine/articleshow/54875349.cms
The reported public announcement is self speaking.
Attention -of those really concerned and care to keep selves aware , and take a conscious note of, what has been happening all around / ongoing deliberations, – may be drawn to:
http://praja.in/en/blog/murali772/2016/09/06/practicality-enforcing-revised-bwssb-stp-norms-existing-apartment-complexe
Not Unrelated:
http://www.thenewsminute.com/article/where-does-all-bengalurus-poop-go-35250
ADD-on
Apropos of the previous Post in re. STP in building complexes, attention may, at cost of repetition, be specially invited to the input furnished under ‘Master Note’, if found useful, @ https://www.linkedin.com/pulse/apartment-complex-es-bwssb-latest-move-swaminathan-venkataraman?trk=mp-author-card ; which is reproduced below, in case not been read / made a conscious note:
Q
Suggested Points of Defence / Protest:
1. RWA is not a ‘legal entity’- see host of Inputs shared and available in public domain.
On that premise, any notice served on a RWA or any of its ‘care takers’ (not ‘office bearers’ or ‘managing committee’ in any legal sense) requiring STP compliance is patently invalid, so much so a non-est, hence unenforceable.
2. BDA / BBMP, the authority for project approval, had, as is to be readily inferred, never been serious about implementing the idea of STP; more so, building wise, of course, never intended so as to be acted upon. The reasons are not far to seek but several.
One such strong possibility is the widely prevailing collusion with Promoters/ builders in regard to, among others, gross violation of many of the bye-laws /building rules, in force, but just on paper.
Even on the ground of best assumptions, if at all building-wise STP had been intended, that ought to have insisted upon, pursued and ensured that the document of project plan, as submitted, did contain, on the face of it, the location chart (the architect drawing details) of STP facility, before its being formally approved / sanctioned; and to the stage of construction completion. In other words, once the Plan had been vetted and approved, sans STP, consciously, and construction has been gone ahead with, in-progress over a long period, and completed by the promoter/builder eventually, it is too late in the day (that is, after years) to require or try to enforce STP compliance. Further, the strong objection is against purchasers/occupants being made a soft and easy target, for no fault of them, individually or collectively, for the failure to comply by promoter /builder.
More importantly, even granting that in a given case, STP was specified in the authority’s letter of approval , as one of the terms and conditions, of the Project Plan, that was , at best, binding on the promoter/builder; certainly, NOT on purchasers of the Units, after completion of the construction. To be precise, purchasers (either under first sales or subsequent sales, as the case may be) were not a party or privy to the Project Plan, from the time of its submission, to its approval and construction completion. As such, no authority (BWSSB or any other) can rightly assert to have any ’cause of action’ (in its legal sense), so as to validly proceed against the purchasers, in the event of any non-compliance by promoter /builder, of any of the approval terms, not excluding STP.
3. According to understanding of the reliable information (see the recent Posts @ http://praja.in/en/blog/murali772/2016/09/06/practicality-enforcing-revised-bwssb-stp-norms-existing-apartment-complexe#comment-38286), neither BDA or BBMP, or BWSSB for that matter and its own then officials-in-charge, from time to time, jointly or severally, never thought of or believed that STP could, if and when finally decided to be implemented, could be insisted upon except prospectively.
As is to be found recorded – see http://praja.in/en/blog/murali772/2016/09/06/practicality-enforcing-revised-bwssb-stp-norms-existing-apartment-complexe#comment-38274-, what Mr MDN Simha, a former Chief Environmental Officer, KSPCB has said / opined, in no unmistakable language, must be worth taking a conscious note of, for a helpful support of its kind.
4. Even as late as in the year 2014 (ref. the Link given above- http://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&cad=rja&uact=8&ved=0ahUKEwjZqIPo-KbQAhVJo48KHboGDckQFghDMAc&url=http%3A%2F%2Ftimesofindia.indiatimes.com%2Findia%2F70-of-Indian-sewage-treatment-plants-dysfunctional-Javadekar%2Farticleshow%2F45231410.cms&usg=AFQjCNEVbksrfgTxgMl76qf_0NpiMrvH6A&bvm=bv.138493631,d.c2I), the central competent authority, empowered and responsible to oversee, itself was unsure, being in a dilemma, as to what type of technology that could be ideally adopted, so as to fit into Indian environments / soil conditions, so on.
So far as is to be gathered /inferred, even until date, that appears to be the status quo, nation wide; in that, the central authority is still in no position to be of any guidance, with positively workable suggestions, for the authorities at the states’ level to confidently take a decision and proceed.
5. The mooted idea of a penal charge, in case of non-compliance with STP , as reckoned on the basis of water charges billed- as mindlessly proposed /heard to have been done selectively,- is obviously irrational, suffering from a blatant fallacy of disconnect, so to say ; hence ought to be stoutly contested.
In this regard, the scope, if at all any, for such a penal levy, has to be looked into and ascertained, from the Rules book of BWSSB and / or BDA/BBMP, as the case may be, but cohesively, not in isolation. So far as is known, however, there appears to been no such scope for BWSSB to go ahead with and attempt such a levy.
Looking simply from a common sense point of view, in any case, there is no rhyme or reason for so imposing a penal charge in reference to the amount of water bills; which has to be necessarily and strictly based only on actual supply and factual consumption of water by the building complex, nothing more, arbitrarily.
The areas within the respective domain and powers / authority of the said local bodies, -which obviously have been functioning with no co-ordination and co-operation among themselves, whatsoever,- albeit being two distinct local authorities set up for different purposes, are expected to discharge their functions /duties in relation to a building complex unitedly; not according each one’s own independent whims, in such a manner as to result in unjustifiable hardships to the building complex as such, or its owners/ occupants.
(Pending to be EDITED/ADDED for better clarity/emphasis)
UQ
FOOT Note:
According to the latest info., from close reliable quarters, the related action lately initiated, or proposed, by BWSSB against old housing societies has been strongly protested against, as illegitimate and unwarranted; and been done so, in a specially convened meet of the aggrieved purchasers/owners , in a good number, in occupation of Apartments .
Further, the added self-speaking info., is, for similarly aggrieved apartment complexes hence likewise interested to contact, – “Sri .Prasanna from Brigade Millianem J.P.Nagar Apartment who is taking a lead in the matter and wants to have a group by way of WHATTS APP and Facebbok His mobile number is 98455 80227.”
Sub: STP
Apropos of previous Post, there has been no further feedback info. /update on the latest development, if any. However, according to info., gathered, on specific inquiry from a friends’ circle, steps have since been taken and the court has been moved for an adjudication. Anyone from the activists’ groups, with an authentic information to that effect, it is suggested, may share with the rest, through this column, – in addition to via WHATS APP- the latest status, thereby enable an active and objective participation by them, in the court proceedings. The first and foremost step n the right direction should be to seek and obtain a blanket stay order from the court, restraining BBMP in the interim from pursuing its mis- conceived / -directed adventure any further, in individually selected cases, until the dispute has been finally settled.
In second line from the bottom- to correct and read, – BWSSB ; albeit, also BBMP, as the project plan approval authority, would require to be, as already suggested, lined-up, necessarily imp- leaded as one of the necessary OPs.
STP Installation …….We are from janapriya Heights flat Owners association. BWSSB is charging us penalty for not installed the STP in our facility. Ours is 14 year old building and literally we donot have space for construction. We have given a letter to BWSSB chairman requesting to exempt us from STP installation. Even we would like to be part of the group if you are all taking any action as a group.
Regards, Kalpana Rudrapatna
We have planned to submit a memoranda to UDD officials and if possible to meet Shri K J George to take forward the issue of STP INSTALLATION with retrospective effect.
In this context, we request the Apartments, that have received the notices, to forward copies of the Bwssb notices issued to the apartments along with the copies of the bill showing the penalty and payment remittance details if any. I need as much as possible data to attach with the representation. Last date is 15th January. Please send it to my email: Msshankar1961@gmail.com. Please mention your apartment name, address, Total number of flat, size of the Land in which it is constructed, year of construction as well.
Need more number of data with documents.
M.S.SHANKAR – convenor – Karnataka chapter – 9844010530
after reading this article i was of the impression that KAOA is required for passing clear title of uds.
But I came to realise that khata registration makes the apartment as well as uds clearly in our possession.
KAOA is required for the purpose of administration of the apartments, so that every member is bound to pay maintenance charge for common expense and the transactions and functioning of the members of the commitee are under bylawd.
after reading this article i was of the impression that KAOA is required for passing clear title of uds.
But I came to realise that khata registration makes the apartment as well as uds clearly in our possession.
KAOA is required for the purpose of administration of the apartments, so that every member is bound to pay maintenance charge for common expense and the transactions and functioning of the members of the commitee are under bylaws.
after reading this article i was of the impression that KAOA is required for passing clear title of uds.
But I came to realise that khata registration makes the apartment as well as uds clearly in our possession.
KAOA is required for the purpose of administration of the apartments, so that every member is bound to pay maintenance charge for common expense and the transactions and functioning of the members of the commitee are under bylaws.
after reading this article i was of the impression that KAOA is required for passing clear title of uds.
But I came to realise that khata registration makes the apartment as well as uds clearly in our possession.
KAOA is required for the purpose of administration of the apartments, so that every member is bound to pay maintenance charge for common expense and the transactions and functioning of the members of the commitee are under bylaws.
Please can someone tell me who approves the STP installation and specifically the location within the apartment complex as it can cause a health hazard if not placed in the right place. Is it the BBMP or BWSSB or Karnataka Pollution control board that provides the approval for STP installation along with approving on where it should be?
Facts of Karnataka Apartment Ownership Act 1972 and Association Registration process
KAOA (The Karnataka Apartment Ownership Act 1972) is not pertaining to Registration of Apartment Owners Association.
KAOA completes the process of creating proper “title “of the flat by registering the Deed of Declaration in Form “A” by sole owners or by all Owners and execution of Form “B” by all Owners.
It is the responsibility of the Builder to prepare and register the Deed of Declaration in form “A” with Sub Registrar office along with its bylaws.
This deed of declaration need to be registered by the Builders much before conveying the sale deed to the individual home buyers and reference of this Registered Deed of declaration to be mentioned in the Sale deed.
Subsequently every individual Owners need to submit a declaration in Form “B” upon registering the sale deed.
The Builder hand over the Registered Deed of Declaration and Form “B” upon forming the Association of Owners, under Karnataka Co-operative Societies Act 1959 or under Company’s Act 2013. (Earlier 1959).
The Association Committee submit the certified copies of Deed of Declaration, Byelaws and Form “B” to the competent authority, within 30 days* of its first General Body meeting , and this completes the process of KAOA.
Current Scenario:
The Builders (Sole owners) are not registering the Deed of Declaration in “Form A” before sale deed registration and only few reputed Builders does this.
Hence, the All owners are put in to hardship and the KAO Act is interpreted now and few Legal experts are of the opinion that all owners now can jointly complete the process of creating proper “title “to the apartment by submitting the Deed of declaration and registering the byelaws with 2/3 rd. majority of Owners joining to- gather as first batch in the Sub-Registrar office.
To complete this process by all owners, a special power of Attorney is obtained for specific purpose of submitting the Deed of declaration and signing of “form B”. There is a lot of difference of opinion in this process but, logically I find no harm in following this process as there is no other option available, except to approach the State Government Authorities to resolve this issue.
Further the Association has to be registered either under Karnataka Co-operative Societies Act 1959 or as per Companies Act 2013 and there is no legal provision to register it under KSRA – Karnataka Societies Registration Act 1960, which are being practiced and followed by many.
A few Associations’ could get success in getting PAN card and opening of Bank accounts with the registered Deed of Declaration but the proper way to get the PAN and opening of Bank accounts are with the “ Registered Certificate Copy “ issued by Karnataka co-operative Societies Act 1959 or by the Registrar of the Companies.
Only upon registering either with Karnataka Co-operative Societies Act 1959 or as per Companies Act 2013, the Owners have grievance redressal option to approach the concerned Registrars with their complaints about their Management Committee’s function, duties, Challenging the elections, decisions, etc. as per the Byelaws or MOA without approaching the Court of Law.
The Association Committee submit the certified copies of Deed of Declaration, Byelaws and Form “B” to the competent authority – Registrar of Co-operative societies, within 30 days* of its first General Body meeting , and this completes the process of KAOA.
While Registrar of co-operative society is named as competent authority as per KAO Act 1972, but his duties, rules and regulations are not elaborated.
Of course there are lacunae in KAO Act 1972, which need to be addressed by proper amendments as it is 45 years old Legislation, which never underwent any amendments.
M.S.SHANKAR – 9844010530 – msshankar1961@gmail.com
My question is, if the owners of a gated community have registered association under Societies Act, which has been accepted by Builders by exchanging correspondence with the said association in matters related to the said premises, transferred major portion of corpus fund to the association and also written to water board to transfer the name on the bill from builder to society. Now the society wants to take legal steps to recover balance corpus fund and other deficiency of service in the project. WIll there be any problem for the society in filing a consumer case since it is registered under Societies Act?
Dear Sir/ Madam,
The housing association I live in is registered under KSRA and has issued AMC (Annual Maintenance Charge) demand without holding an AGM. When asked the Managing Committee have responded with “An EGM or AGM decides the AMC applicable for the year and until another AGM or EGM revises it , the previously decided AMC remains valid”.and are using this as justification to carryover and use previous year’s AMC this year. They are also threatening to levy a penalty on anyone who does not pay within 25 days of the demand. Is the association’s. demand for AMC without holding an AGM, without presenting the accounts for previous year and without presenting the budget for this year valid and legal?
It’s been great to know about this.After reading this article i have gain some idea on KAOA Billing Act. Thanks for highlighting this important issue on your article here.really informative…
Please advise the role, duties and responsibilities of a Tenant in an apartment?
Association form under 1972 Act and office bearer kept it secretly. after making the rules and regulation within how many months they have to circulate to other members.
Our association has total number flat is 128 out of that 62 is for builder rest for land owner. Builder has sold all his flats and ran away as their were some issue with them and two years passed.
Now can association form without builder and land owner (as the they have more flats)?
Can land owner rent their flats (they were doing as they are local)?
this an ‘A’ khata property without OC and CC. STP is also made by builder swimming pool is not active some fish office bearer cultivating so that mosquito will no breed.