Apartment common area maintenance

What kind of Association or Society do you have? Is it registered under the Tamilnadu Ownership Flats Act, 1994? Are your byelaws registered with competent authority? Only if it is a properly registered body under the laws of Tamilnadu you can have any claim.

It is a large apartment complex and we have a flat owners welfare association. It is a registered body, under Section 10 of Tamil Nadu Societies Registration Act 1975 (Tamil Nadu Act 27 of 1975). Registered with competent authority in the year 2011.  Thanks.

This is the problem in Chennai and many other States other than Maharashtra. Only Maharashtra has clear laws and model byelaws including covering situations such as above. Under Maharashtra laws it is a clear case where the Society should bear 100% of the cost. In Chennai Societies circumvent the Tamilnadu Ownership Flats Act, 1994. The registering authority is same as under the Societies Registration Act, but the laws are different. Associations in Tamilnadu register themselves as a regular society under the Societies Registration Act and the Charity commissioner will insist on the word "welfare" in the name of the Society. The Act is normally intended for voluntary associations. A flat owners' association cannot be a voluntary association. A flat owner cannot be given the option not to join the association nor to opt out except when he sells his flat. In Maharashtra any Society registered under the Societies Registration Act has to compulsorily register under the public trust act also. The latter binds the office bearers as "Trustees". I do not know the situation in Tamilnadu. Your case will entirely depend on your bye-laws. If you can send me a copy of your byelaws I can advise you further.

When a property is damaged it becomes the responsibility of the person who caused the damage to repair the damage. When the responsibility for causing damage cannot be attributed to a person the owner of the property himself has to repair it. In a Society registered under the Tamilnadu Ownership Flats Act, 1994 the Society or the Association becomes the owner of all common premises and as owner of the terrace it would their responsibility to repair. But in a welfare association they do not own the common premises. They only give you the common welfare services such as sweeping and cleaning the common premises, paying the common electricity bill etc. Not registering under the Ownership Flats Act create grey areas as in your case.

There is a report in Times of India, Mumbai Edition today. I have attached it herewith. You can go to the local Consumer Forum and quote the Mumbai case in support of your claim. Amending bye-laws is not that easy. Your existing bye-laws would stipulate the majority required for amendments. Generally it will be 2/3rd. If I remember correctly the Tamilnadu Act stipulates a 4/5th majority. It is very difficult to achieve. Even after the General Body passes the amendments, the registering authority should approve it. The dissenting members can request a hearing by the registering authority. Even if successfully amended, it is doubtful that it can be given retrospective effect. You need have no fear of amendments.

If the association secretary or president is not inclining to reimburse, you may issue a legal notice demanding the reimbursement of the expenses since it becomes the common area and the maintenance of common area shall be the responsible of the association.  Let them give a reply based on which you can decide about next course or legal action through appropriate forums.

21-8-15,

This is new apartment in Hosur having 15 flats with 3 different sizes, we are facing problem for fixing the Service chharges like Security, Sweeping of stair cases and common areas and Lift Electriccity bill and common area electricity Bills.

wether the charges are shared equally by all the Flat Owners or it should be fixed on Sq.ft basis.

 

Thanks

S.G.Siva Kumar