Navigating the rules and regulations of a cooperative housing society (CHS/Society) can often feel overwhelming, especially when it involves shared facilities and rights such as parking spaces or access to amenities like gyms. This week, we address some common yet challenging scenarios faced by residents and members of housing societies. From disputes over parking allocation and long-term leasing to penalties imposed for parking violations, these issues, often, stem from a lack of clarity or differences in interpreting the Society's bye-laws.
Society Restricts Access to Parking and Gym Facilities
Question: I am the owner of two flats in one Society. Both of my flats are rented out. I have the following issues with the Society:
- I cannot use the gym facility in the Society because both my flats are rented. If this is the rule, can you tell me under which bye-laws this restriction applies?
- I have three car parking slots in total. One is being used by a tenant and the other two are vacant. Since I do not live in the Society, can I use the other two car parking slots whenever I require? If not, under which bye-laws am I prohibited?
Answer: You have not provided certain critical details, such as whether the covered parking slots were allotted to you independently of the flat agreement or as part of it. Did you acquire the parking slots from the developer or the Society? Additionally, you have not clarified if the Society has officially communicated its refusal to allow you access to the gym or parking slots.
Generally, parking and gym facilities are associated with the flat, not the members individually. However, if the Society has adopted the amended bye-laws (up to December 2019 under the 2015 model bye-laws) and you hold membership in your capacity while owning two flats, the following provisions apply:
1. Parking Rules:
Under Bye-law 77(a), the Society's general body meeting (GBM) has the authority to frame and adopt rules to regulate parking slots in accordance with the Maharashtra Cooperative Societies (MCS) Act and the associated rules.
This means your ability to use the parking slots depends on the parking regulations adopted by the Society's general body.
2. Gym Facility:
If the restriction is based on a decision made by the GBM, it would fall under bye-law 109, which gives the general body the final authority on matters not explicitly covered in the bye-laws.
You should check with the Society whether these restrictions were decided at a GBM and request a copy of the resolutions passed. If you believe the restrictions are unreasonable, you may raise the matter with the managing committee or escalate it to the deputy registrar of cooperative societies for clarification or resolution.
Parking Allocation Probems in Society
Question: I own a flat in a CHS, but the previous owner did not have a parking allocation letter. Our Society has 160 parking slots for 160 flats. However, four members, including me, do not have parking allocated and four slots remain unallocated.
We proposed to the Society that we are willing to pay a lump sum amount based on government market rates. During an annual general meeting (AGM), two options were discussed: leasing the parking slots year-on-year or leasing them for the long term. It was decided to lease them for the long term at a rate determined by a government evaluator.
The registrar also directed the Society to allocate the parking slots with a lump sum payment, and we complied, paying Rs7.5 lakh as per the evaluated value. Lease papers were prepared, but now some members are objecting, claiming the management committee does not have the right to 'sell' parking slots. However, the allocation is for long-term leasing (e.g., 99 years), not a sale.
This issue has been ongoing for over five years and, just as it seemed resolved, these objections have put us back to square one. What can we do to resolve this and ensure the parking allocation is finalised?
Answer: Your situation highlights a complex issue of society governance and member objections. Here are the steps you should consider:
- Ensure that your Society has adopted the amended bye-laws (as of December 2019, based on the 2015 model bye-laws). Under Bye-law 77(a), the Society's GBM has the authority to frame rules for parking allocation. Bye-laws 78 to 83 cover related matters. The GBM is the ultimate authority for CHS affairs, so its decision to lease parking slots for the long term, as noted in your AGM, should hold precedence.
- Gather all relevant documentation, including the AGM minutes, the registrar's directive and the government-evaluated rate documents, to build a strong case.
- Engage an advocate who specialises in cooperative society disputes. They can help clarify that the allocation is a lease, not a sale, and is in compliance with Society's bye-laws and the law.
- Send a formal legal notice to the Society, backed by all documentation. Include a copy to the registrar of cooperative societies, emphasising the delay and objections despite compliance with prior directives.
- If the objections persist, you may need to approach the cooperative court for resolution. This court can adjudicate whether the Society's decision to lease parking slots complies with the bye-laws and the directives of the registrar.
In the meantime, continue engaging constructively with the management committee and opposing members to address their concerns. A clear explanation of the process and assurances that the allocation complies with the Society rules might help ease objections.
Penalties for Parking Violations in Housing Society
Question: It was decided in the AGM that rules framed for parking will be decided by the managing committee members. Since the housing society has less parking space, it was decided that only one four-wheeler and two two-wheeler spots per flat would be allowed.
Can the committee decide on the penalty for not adhering to these rules, with an amount of more than Rs5,000 if someone was found to violate the rules again and again. For instance, if the first penalty was Rs5,000, can the penalty be Rs7,500 for a second violation and for the third violation, could it be Rs10,000 in the same financial year?
Answer: In the circumstances described, even if the GBM has the ultimate authority, you have the option to challenge this decision by approaching the competent cooperative court. However, given the costs and lengthy time-frame typically associated with litigation, it would be more practical to consider the following steps:
- Issue an appropriate legal notice under the Maharashtra Cooperative Societies (MCS) Act. This will formally communicate your concerns and may prompt a resolution without further escalation.
- Before initiating legal action, explore the possibility of intervention by the housing federation with which your Society is affiliated. Federations often have mechanisms to mediate disputes and provide guidance to member societies.
These steps could help achieve a resolution more efficiently, avoiding unnecessary delays and expenses associated with court proceedings.
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.)
if pre Rera, in Mumbai atleast firstly a member cannot say I have 3 parking slots. At best what can be said is that the society has allotted me 3 parkings as for pre-rera societies, parking excluding garages belongs to the society which then allots to members subject to availability.
Then if there are 160 slots for 160 slots then society is obliged to allot on the same terms as other members. Members cannot be discriminated against. In this case some members have more than one slots (as slots reserved for visitor parking seems to be taken).
I would file a case and will win and thus not having to pay lease cost
Firstly a member cannot say I have 3 parking slots. at best its society has allotted for pre-rera societies parking excluding garages belongs to the society belongs to the society which then allots to members subject to availability.
then if there are 160 slots for 160 slots then society is obliged to allot on the same terms as other members. Members cannot be discriminated against. in this case some members have more than one slots (as slots to be reserved for visitor parking seems taken).
i would file a case and will win and thus not having to pay lease cost