Buying, owning and managing property often brings up questions that go far beyond the purchase price or registration. Many flat-owners and members of the cooperative housing society (CHS/the Society) find themselves grappling with rules surrounding ownership transfer, society meetings, or documentation at the time of possession. These issues are governed by co-operative housing laws and procedures, which, while meant to ensure transparency, can sometimes appear complex to individual members.
This week, we look at some common concerns: what happens to the ownership of a jointly held flat after the death of one co-owner, the consequences of delaying an annual general meeting (AGM) beyond the statutory deadline and the essential paperwork a buyer must secure from a builder at the time of taking possession. Each of these situations highlights why it is important to follow the due process and maintain proper documentation to safeguard your rights.
Transfer of Flat Ownership after Joint Owner’s Death
Question: My mother and I are joint owners of our flat. Since my mother’s name is listed first, will the flat automatically get transferred to my name after her death? Also, my father is still alive—will he get any share? Kindly advise.
Answer: A flat jointly purchased by you and your mother, where your mother’s name appears first, will not automatically be transferred in your name after her death. In such a case, after your mother’s death, you will have to apply to the Society using the application form in appendix 17 of the Bye-laws (if the Society had adopted the 2014 edition), along with:
• An undertaking in the form given in appendix-3 on Rs200 non-judicial stamp paper (or franking),
• An indemnity bond on Rs500 non-judicial stamp paper as per appendix-19,
• The death certificate of your mother (the first-named person), and
• The original share certificate of your flat.
On submission, the Society will transfer the share certificate and the ownership of your jointly owned flat into your sole name.
If you wish to transfer the flat during your mother’s lifetime, she can execute a gift deed for her share in your favour and have it registered with the sub-registrar of assurances. With a copy of the gift deed, you can then apply for sole membership of the flat using appendix-2, along with an undertaking in appendix-3 on Rs200 stamp paper, and submit the original share certificate to the society for updating records.
Since the flat is jointly purchased in your mother’s and your name, during your father’s lifetime (or that of your brothers and sisters), none of them can object to you completing the above legal formalities. If you wish to give your father some share in the flat after your mother’s death, you can first transfer the flat fully into your name as explained above, and then execute a gift deed in your father’s favour. This will make him an associate member of the flat (with you as the first-named person and your father as the second).
If you wish to add your father’s name during your mother’s lifetime, then your mother—or both of you jointly—can execute a gift deed in favour of your father. In this case, his name will appear below yours in the share certificate as an associate member. After the gift deed is executed during your mother’s lifetime, your father will have to apply to the Society for associate membership using appendix 5, along with a copy of the gift deed and the original share certificate, so that the Society can add his name as an associate member below yours.
Consequences of Delayed AGM in a Housing Society
Question: If the cooperative housing society does not have its AGM before 30th September, what are the consequences? They have decided to hold it on 5th October. Is that okay? When asked about the delay, nobody answers.
Answer: If a cooperative housing society does not hold its AGM before 30th September, it should write to the deputy registrar of cooperative societies (DRCS) to appoint an authorised officer to conduct the AGM after 30th September. The deputy registrar’s appointed authorised officer will check the audited accounts and balance sheet of the Society, conduct the AGM and then hand over the Society back to the existing managing committee. If the authorised officer finds irregularities in the administration of the managing committee, he may dissolve it. After setting right the administration of the Society, he will conduct the managing committee elections and hand over the Society’s administration to the newly elected committee.
Essential Documents To Obtain from Builder at Possession
Question: What are the documents I should get from a builder at the time of possession? Is there any difference between residential and commercial property documents? If the builder has not provided all documents, what should I do?
Answer: When you buy a flat, whether residential or commercial, a sale deed has to be executed. In this sale deed, the builder will mention the amount paid by you for the flat, a description of the area, the location of your flat, the municipality-approved plan of your flat, and other relevant details. According to this sale deed, 5% of the sale value, stamp duty, and other applicable taxes, such as GST (goods and services tax) or LBT (local body tax) as applicable), must be paid.
The sale deed is then registered with the sub-registrar of assurances, where you must pay 1% of the sale value (subject to a maximum of Rs30,000) as registration charges. Once completed, you will receive the registered sale deed, along with its Index-II, from the sub-registrar’s office.
This completes your legal documentation work for registration of either residential or commercial premises. You can safely take possession of your premises once the builder has obtained the occupation certificate (OC) from the concerned municipal authority.
NOTE
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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.)
