Navigating the complexities of cooperative housing society (CHS/the Society) management often brings residents face-to-face with intricate issues, from maintenance charges to administrative missteps and disputes over rights. This week's column addresses three pressing concerns faced by the Society members, including fair maintenance charges for amalgamated flats, delays in forming Societies due to uncooperative builders and the imposition of illegal charges on non-occupant members.
Each of these cases highlights the importance of adhering to the Society bye-laws and approved plans, as well as understanding the legal avenues available to resolve conflicts. Whether it is tackling unfair demands from managing committees or protecting residents' rights against builder malpractices, the solutions often require a combination of legal knowledge and proactive action.
Maintenance Charges on Amalgamated Adjoining Flats
Question: What are the rules or bye-law provisions for the following scenarios? Is a Society-level resolution required?
Scenario 1: Two flats were combined by the builder during construction and sold as one unit. A single stamp duty and registration fee were paid by the owner. There is one agreement, one share certificate issued by the Society and one family residing in the flat.
Scenario 2: After registering the Society, some members purchased adjacent flats and combined them. They have two agreements, two separate share certificates and one family residing in the combined unit.
Scenario 3: Some members purchased adjacent flats but did not combine them. They have two agreements and two share certificates. Some members rent out one flat, while others use both flats independently.
The section plan shows the two flats as separate units. The builder has not provided a completion certificate and it is a deemed or part completion with a deemed conveyance deed by the Society. How much maintenance should be applied to each scenario?
What is the procedure for applying development funds/sinking funds/maintenance and repair funds in these scenarios?
Answer: The approved building plan must be checked to verify the number of units approved. Without prejudice to this, my advice in each scenario would be as follows:
1. In case there is a single sale deed and single share certificate for the unit, the Society cannot levy separate charges. However, if the approved building plan shows it as two units, the flat-owner needs to amalgamate these two units by executing an amalgamation of flats deed and registering it with the sub-registrar of assurances.
2. Even if one family occupies two flats, removing the wall between them and converting them into one unit does not exempt the owner from paying maintenance charges for both flats.
Unless these two flats are amalgamated, Society can charge them separately. However, if both flats are owned by the same person as per the share certificates, then the Society cannot levy service charges for both units. It can, however, levy maintenance charges based on the total area of the joined flat.
3. Separate maintenance charges must be paid for each flat, regardless of whether they are rented out or used independently. In addition, the Society can levy non-occupancy charges on the flats given on rent at 10% of the service charges. Also note, as mentioned above, Society cannot levy separate service charges on two units/flats owned by the same person.
The Society appears to have made a factual error when seeking deemed conveyance. This mistake must be rectified through the appropriate procedure. Failure to do so may result in long-term complications for members.
Utilising development funds, sinking funds or maintenance and repair funds requires prior approval from the Society's general body. After consulting a local municipality-authorised architect, the managing committee needs to call a special general body meeting and get the proposals approved by members.
Delay in Formation of Society
Question: Our building received an occupation certificate from the municipal corporation in 2018. Since then, the builder has neither formed a CHS nor cooperated with residents to form one. Now, he has started asking residents to purchase stilt parking. We want to form a Society and protect the common parking area. Please advise.
Answer: As per RERA Rules, a builder or developer is duty bound to give conveyance and form CHS if 51% of flats/units are 'booked'. Three months after the booking of 51% of units of the project or building, the builder is duty-bound to form a Society and hand over conveyance to the newly formed Society.
However, the course of action will depend on the specifics of your sale agreement. If the agreement is registered, you have two options to consider:
I strongly recommend approaching the district consumer disputes redressal commission to file a complaint against the builder for any deficiency in service. This route is often effective in achieving favourable outcomes for homeowners.
Alternatively, you can form a Society and begin the process of obtaining deemed conveyance.
However, pursuing the district consumer disputes redressal commission should be your priority, as it, typically, results in the most satisfactory resolution.
Illegal Charges Levied in Maintenance Bills
Question: My Society is charging additional ‘Other Charges’ in addition to the 10% non-occupancy charges, but only to members who have rented out their flats. An extra charge of Rs1,500 per month is being levied. We have objected to this, but the managing committee is threatening us, saying they will not cooperate in the future if we approach government authorities. They are also stating that they will not issue no obejction certificates (NOCs) for passports or bank clearance and we would have to approach the government authority for any NOC which they may only issue at their discretion.
Answer: The Society can levy other charges as approved by the general body at its meeting. However, such charges should not contradict the provisions of the Act, Rules and Bye-laws of the Society.
You can write to the secretary or chairman of your Society seeking details of 'other charges'. If there is no reply after sending them a reminder, you can approach the deputy registrar of cooperative societies in your area.
As a registered member, you can also request the deputy registrar to disqualify the office-bearers of the CHS managing committee. You can also request an order to disqualify them from re-election in the future (restricted to five years) and to quash all decisions that are inconsistent with the Society's bye-laws. Additionally, you may consider initiating criminal proceedings against the office-bearers.
NOTE
We will not be answering queries posted in the comments. Only questions sent through the Moneylife Foundation's Legal Helpline will be answered. If you want to seek guidance or ask questions to Mr Shanbhag, kindly send it through Moneylife Foundation's Free Legal Helpline. Here is the link: https://www.moneylife.in/lrc.html#ask-question
Disclaimer: The guidance provided in these columns and on our Legal Helpline is on the sole basis of the facts provided by the reader/questioner and does not amount to formal legal advice in any form whatsoever.
(Shirish Shanbhag has an MSc in Organic Chemistry, a Diploma in Higher Education, and a Diploma in French and has completed his LL.B. in first class in 2021. Before his retirement, he was a junior college teacher at Patkar College from July 1980 to May 2012, teaching theoretical and practical chemistry. Post-retirement in 2012, he started providing guidance and counselling to people on several issues, specifically focusing on cooperative housing society-related matters. He has over 30 years of hands-on experience in all matters about housing societies and can provide out-of-box solutions for any practical issue.)
