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rajashree l (Advocate)     27 March 2012

Builder obstructing formation of society

I own an apartment in a 14 year old building having 6 apartments, with the builder having a bunglow in the same premises. Though the builder had promised to form society and has also taken charges for the same which is reflected in the agreement. He is obstructing the formation of society as he is worried about his right of easement since his bunglow is towards the back of the plot and he would use the same gate of the building to enter his property. He has not done the conveyance and is challenging the apartment owners to form society as he knows that it needs a minimum of 10 members and we are only 6.

My question is that can the builder get away with this open case of cheating as he has already charged us for formation of society, knowing fully well that we cannot form one as we do not have the required number?

What action can we , apartment owners take against this errant builder who is openly flouting rules and living on the same premises?

P.s He is not paying any maintenance for the building either



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 6 Replies

k.chandrasekharan (advocate)     28 March 2012

It appears that you have a case under consumer protection act, for direction as well as monetary compensation. All the flat owners jointly engage a local lawyer for advice.

If the number is less than the minimum, how can the builder form a society, if all of you jointly can not. There would be exemption in law from the minimum number for flat owners' society. Consult the lawyer. Alternatively explore the possibility of registration under Section 25 of the Companies Act 1956, with the Registrar of Companies.

As for easementary right, of ingress and egress, this would have been clear to all the flat owners from the very beginning. So, it is better to honorably accept or you may have to face a suit from the occupier of the backside building.

rajashree l (Advocate)     28 March 2012

Thank you sir,for your advise. Was wondering how, registering as a ltd company would help us? Would you be able to throw more light on the exemptions to the minimum number for society formation? As far as the easementary rights go, none of us have an objection to those. Another point which I did not mention earlier was that the builder built an additional floor after some years & sold it. Neither did he take permission from existing flat owners nor did he compensate. And since there is no society there was no need for a no objection cert. We think he is now keen to re develope the property and is offering us peanuts to vacate or says that he will give us bigger apartnents but going by his past history, none of us trust him . He has also not done conveyance. Since MOFA does not apply to us nor does Deemed Conveyance. We come under Mah Apartment Ownership Act 1970 which has no recoursr as MOFA. Finally it all boils down to society formation.

rajashree l (Advocate)     28 March 2012

Thank you sir,for your advise. Was wondering how, registering as a ltd company would help us? Would you be able to throw more light on the exemptions to the minimum number for society formation? As far as the easementary rights go, none of us have an objection to those. Another point which I did not mention earlier was that the builder built an additional floor after some years & sold it. Neither did he take permission from existing flat owners nor did he compensate. And since there is no society there was no need for a no objection cert. We think he is now keen to re develope the property and is offering us peanuts to vacate or says that he will give us bigger apartnents but going by his past history, none of us trust him . He has also not done conveyance. Since MOFA does not apply to us nor does Deemed Conveyance. We come under Mah Apartment Ownership Act 1970 which has no recoursr as MOFA. Finally it all boils down to society formation.

M V Gupta (Advocate)     28 March 2012

Please check the agreement you had from the Owner developer. It must be containing a provision that the Owner will form a coop Society or declare the property undr the Mah  Apartment ownership Act. As there are only 6 flats and along with the bungalow 7 flats, Coop Scoiety cannot be formed. You can therefore compel the owmner to submit a declaration under the Maharashtra Apartment Ownership Act, 1970. Then all of u can get the Deed of Apartment which confers full ownership rights on the flat buyers indivdually wuith liberty to deal with the flat independently. As u are an Advocate urself u can issue a legal notice on behalf of all the flat buyers for the purpose. If the Owner Developer does not cooperate u may consider filing a complaint in the consumer forum.

rajashree l (Advocate)     28 March 2012

Thank you. We are considering approaching the Consumer Redressal forum anyway as owner developer is not co-operating

rajashree l (Advocate)     29 March 2012

I also needed to know what happens about the conveyancing of the land as that is not done

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