As communities become larger and more complex, a cooperative housing society (CHS/the Society) is increasingly required to balance the rights of individual members with the interests of the community as a whole. Questions relating to occupation of flats, maintenance responsibilities, use of common facilities and the scope of committee powers frequently give rise to disputes, particularly when expectations differ between residents and those entrusted with managing the society's affairs.
This week's queries examine several such issues. They explore the extent to which societies can regulate occupancy arrangements, the remedies available when one member's actions cause damage to another's property, and whether decisions approved by the general body meeting (GBM) can subsequently be altered by the managing committee.
Paying Guest Accommodation and Occupancy Rights in Housing Societies
Question: What is the exact definition of a ‘paying guest’ in a cooperative housing society? Can a member who is not occupying his/her apartment rent it out to separate individuals who are neither family members nor related to the member and are also not related among themselves? Can the Society's management refuse permission to a member for such an arrangement?
Answer: Assuming the flat is situated in Maharashtra and governed by the Maharashtra Cooperative Societies Act, the applicable Rules, and the Society's bye-laws, there is no specific definition of a ‘paying guest’ under the CHS model bye-laws. Generally, a paying guest arrangement refers to a person who is permitted to occupy premises on payment, without acquiring tenancy rights.
A member may give a flat on leave and licence (L&L) to occupants, subject to compliance with applicable laws and the Society's bye-laws. The fact that the occupants are unrelated to one another does not, by itself, make the arrangement impermissible. However, the nature of the arrangement and the number of occupants must comply with applicable municipal regulations, the Society rules and other legal requirements.
Where a flat is not occupied by the member and is given to others for occupation, non-occupancy charges are payable as prescribed under the applicable rules and government directions. In Maharashtra, such charges are generally restricted to 10% of the service charges (not the entire monthly maintenance bill) levied by the Society, excluding municipal taxes.
A CHS cannot arbitrarily refuse permission for a lawful leave and licence arrangement. However, it may require the member to comply with the Society's bye-laws, submit the prescribed documentation, and fulfil statutory requirements relating to occupancy and security.
Remedies for Leakage Caused by an Upper-floor Flat
Question: I have been facing a bedroom leakage problem for the past 18 months. Despite submitting several written complaints to the society, no action has been taken. My flat is on the first floor, and the leakage appears to be originating from the bathroom of the flat directly above mine on the second floor. I have repeatedly requested the owner of that flat to carry out the necessary repairs, but he has shown no interest. The leakage is causing damage to my property and furniture. How should I proceed legally against the society and the owner of the flat above?
Answer: Assuming the property is situated in Maharashtra, you should first preserve all evidence relating to the leakage, including photographs, videos, copies of your written complaints to the Society and records of the damage caused to your flat and furniture.
Under the Maharashtra Cooperative Housing Society model bye-laws, members are expected not to cause inconvenience, nuisance or damage to other members and are responsible for maintaining their flats and internal installations. You should therefore request the Society in writing to inspect both flats and direct the owner to rectify the source of the leakage.
If the Society fails to act despite repeated complaints, you may escalate the matter to the local municipal ward office and request its intervention, particularly where the leakage is causing continuing damage or may be linked to unauthorised alterations.
If the owner of the upper flat continues to ignore the issue and the Society does not take effective action, you may also consider initiating appropriate proceedings against the owner and the society before the cooperative court or any other forum having jurisdiction over the dispute. Before doing so, it is advisable to obtain a report from a qualified plumber, engineer or architect identifying the source of the leakage, as this can serve as important evidence.
Can the Managing Committee Override an AGM Resolution?
Question: If a decision is taken at the annual general meeting (AGM), passed by the members and implemented, can it subsequently be stopped or reversed by the managing committee on its own, without referring the matter back to the AGM or obtaining the approval of the GBM?
1. The AGM resolved that all residents would subscribe to and use ADDA, and the arrangement was functioning smoothly. However, one day, the office bearers decided to discontinue it. No such decision was taken by the managing committee.
2. The AGM also resolved that festivals would be celebrated for the next six months, and a sub-committee was formed to examine whether the Society could bear the expenditure. However, the managing committee subsequently stopped the celebrations even though the proposal had been approved by a majority at the AGM.
Please advise whether the managing committee has the authority to alter decisions taken at the AGM.
Answer: Assuming the Society is situated in Maharashtra, a resolution passed at a general body meeting cannot ordinarily be cancelled or modified within six months, except through a properly convened general body meeting and in accordance with the applicable provisions of the Maharashtra Cooperative Societies Act, Rules and the appropriately adopted bye-laws.
Therefore, the managing committee cannot simply cancel or alter a decision validly taken by the GBM. Similarly, individual office bearers cannot override a GBM or AGM resolution on their own.
With regard to your first query, if the GBM had approved the use of ADDA and the service was subsequently discontinued without approval of either the managing committee or the GBM, the action taken by the office bearers would require proper justification and authority.
With regard to your second query, if the GBM had approved the celebration of festivals and that resolution was subsequently stopped by the managing committee without placing the matter before the GBM, such action may not be consistent with the resolution passed by the members. However, the exact position would depend on the wording of the AGM resolution and whether the sub-committee's recommendations made the expenditure impracticable or financially unsustainable.
You should ask the Society for copies of the relevant AGM and managing committee resolutions and seek clarification regarding the authority under which these decisions were altered.
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.)
