Although there is no rule against smoking in your flat or at the gates of your cooperative housing society (CHS/Society), it can still be considered a nuisance that causes harm to residents if a valid complaint has been raised. Any such act of nuisance or difficulty caused to a resident must be acted upon by the managing committee by first issuing a notice to the erring member and, subsequently imposing a penalty.
Under no circumstances, however, can the managing committee refuse access to services (such as garbage collection, water and electricity supply) to the erring member for non-compliance.
This week, I will address one such problem where tenants and shopkeepers deliberately neglect residents' requests to stop smoking in public spaces within the Society. I will also provide a solution to a concern where the Society manager has instructed housekeeping staff not to collect garbage from a flat.
Tenants and Shopkeepers Cause Nuisance by Smoking
Question: In our Society, one of the shop-owners, along with his tenant and their employees are smoking within the premises daily. This has been causing problems for other members of the Society. Even though we have verbally informed them to stop smoking, they say there is no such rule which can prevent us from smoking. I am one of the members of the managing committee and want to know what needs to be done to stop this behaviour.
Answer: Causing a nuisance to other residents is not to be tolerated. Smoking is a nuisance, as its inhalation can cause suffocation to other residents in neighbouring flats.
If the tenant is the main culprit who is smoking, then issue a notice to the owner of the flat to evict the tenant, as the tobacco smoke is causing breathing problems and health issues for other residents.
In this notice, you inform the owner that if that tenant is not removed by the end of the month, then the Society will start imposing a fine of Rs5,000 per year, under bye-law no. 165(a). Further, till that tenant is evicted, the owner will also be fined five times the monthly maintenance charges of the concerned flat, under bye-law no. 169(a).
These fines are to be added to the owner's monthly maintenance charges a month after the notice has been given to them.
Garbage Collection Stopped from Flat, after Instruction from Manager
Question: The manager of our Society has given a strict warning to the sweeper not to pick up garbage from our flat, which is located on the ground floor, for his personal reasons. There has been no managing committee in our Society since July 2023. Please advise.
Answer: Firstly, give your Society's manager a notice that if garbage is not collected from your flat, you will make a complaint against him in the consumer court. If the garbage is still not collected from your home, then, with a copy of this notice to the manager, take up the matter in consumer court.
If you are not able to file a complaint against your Society's manager in the format given by the consumer court, you can hire the services of a lawyer practising in the consumer court. However, when the case comes up for hearing, you need not hire the services of an advocate, as you are well versed in the facts of the case and argue it yourself.
Release Deed Not Accepted by Managing Committee for Transfer of Flat
Question: My father purchased a flat and, after his death, it was transferred to my mother's name as a nominee. My Society's secretary has refused the 60% ownership as per the release deed registered in the deputy registrar's office. He says that all members should be present and sign for the transfer. I have informed him that the other two members are not ready to release their rights and that you can maintain their name for the remaining 40% share in the flat. Please advise.
Answer: A release deed should be done by all the legatees together. For instance, the deceased person's wife, children and grandchildren should all sign and register a release deed together.
Even if one legatee is not willing to become a signatory to this release deed, then you should make a testamentary petition in a competent district civil court (if the property is located in Mumbai, then at the testamentary division of Bombay High Court), to acquire a succession certificate.
A nominee cannot become the owner of the flat if all the legatees have not completed the above procedure of signing and registering a release deed.
When you make a testamentary petition in the court, some of the legatees who want their share in your father's flat will have to appear in court. If they fail to come to the court when they are called, they will lose their right to their father's flat.
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.)
