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Pending maintenance dues from a non co-operating flat owner

Querist : Anonymous (Querist) 06 July 2021 This query is : Open 
Dear Experts,
Need a guidance on the below:
We are an apartment association registered with Registrar of Society, Karnataka.

There are in total 35 flats in the apartment. One of the flat owners is very rude and they have moved in to the flat without obtaining an NOC from the association though they knew that the previous owner had some pending maintenance dues. The notice in this effect was prominently displayed on the entrance to the lift and passage. Also they have chosen not to become members and membership fee is still not paid. They forcefully park their vehicle in the parking area eligible for their flat, though the parking space is not yet allotted to them by the association for non- submission of NOC before moving in to the flat.

They are very irregular in payment of monthly maintenance dues, as well as other payments towards society developmental charges. The maintenance is due for more than 18 months. They do not stay in the apartment and they don’t visit also, as the flat is not occupied. The association has been following up for the dues since long time without a luck. Very recently, when they visited the flat for renting it out, association approached them to discuss about the pending dues. However, they argued and said they are not going to pay anything as the flat was not occupied. We referred them to the relevant clause of the association bye laws which talks about amount as decided by the association . Suddenly they became violent and came attacking one of the association members. Considering the verbal abuse (foul language) & loud threatening words and basis the CCTV footage we filed an NCR with the local police station. Though outside of the police station, they agreed to clear the dues but there is no action from their side yet.

Hence the association has decided to proceed legally to collect the dues with interest, as per bye laws. In this reference, we approached a legal help but his advise has raised further questions. He says, even though we are registered with Registrar of Society, we can’t proceed for collection of pending dues, unless the association is registered with some specific authority (just like municipal authorities).

- Is there any such law which stops the apartment association from collecting the genuine outstanding just for not registering with a specific authority?
- What is the legal remedy for recovery of outstanding dues from apartments owners and under what section laws?
- What is the procedure for initiating an action?
Any valued opinion and guidance from the experts
We would request opinion vis-à-vis laws in the state of Karnataka if any.

Thanks in advance….

Dr J C Vashista (Expert) 08 July 2021
Membership in association is voluntary and the bye-laws are inapplicable to non-members.
Consult a local prudent lawyer.
Querist : Anonymous (Querist) 08 July 2021
Thanks for the valuable suggestion. Will do as suggested. But question remains...In such case, how to handle such instances.
P. Venu (Expert) 09 July 2021
Any suggestion depends upon the law under which the Society is registered.
T. Kalaiselvan, Advocate (Expert) 14 July 2021
Whether he is a member or not he is obliged to pay the common maintenance charged that are incurred by the RWA for maintaining he common amenities.
The RWA is a registered body, hence it may decide to recover the dues from its members as per the procedures envisaged in the bylaws of the association.
Additionally, a resolution may be passed in a special meeting keeping this as agenda for the meeting i.e., the payment of arrears by the defaulted members and for initiating suitable legal actions for recovery.
There is no necessity to register the association with the local civic body as incorrectly advised by a local lawyer.

Querist : Anonymous (Querist) 14 July 2021
Appreciate the kind suggestion and response
T. Kalaiselvan, Advocate (Expert) 15 July 2021
You are welcome for your appreciations
P. Venu (Expert) 15 July 2021
You are yet to inform of the provisions under which the apartment association is registered - is it the Karnataka Apartment Ownership Act or the Karnataka Societies Registration Act or some other law?
Querist : Anonymous (Querist) 15 July 2021
My sincere apologies for the delayed response...
We are registered under Karnataka Societies Registration act 1960.
Thanks for your response
P. Venu (Expert) 15 July 2021
Yes, the society need to move the civil court for realization of the amounts due.
There is no specific provision under the Karnataka Societies Registration Act for recovery of unpaid common expenses.

In this context, it could be seen that Karnataka Apartment Owners Registration Act has specifically provided, vide Section 19, for recovery of such unpaid common expenses as charge on the property -

"19. Charge on property for common expenses.- All sums assessed by the
Association of Apartment owners but unpaid for the share of common expenses
chargeable to any apartment shall constitute a charge on such apartment prior to all
other charges, except only (i) charge if any on the apartment for payment of Government
and Municipal taxes and (ii) all sums unpaid on a first mortgage of the apartment."

It may be seen that that the Societies Act is not the right law to register an apartment association. Section 3 of the Act defines the various types of societies that can be registered under the act and none of them meet the definition of an apartment association.

it appears that the suggestion of the local advocate has been in the light of the KAOA being the correct law under which the association ought to have been registered.
Querist : Anonymous (Querist) 15 July 2021
Appreciate your inputs and kind suggestions.

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