My Builder is owning the maintenance and charging huge amount. Builder is not ready to transfer maintenance to owners association. In the document that we signed while booking the flat , they have mentioned that They will maintain the complex for 5 years . All the owners have signed that sale deed. Is there a way to get the maintenance transferred to association?
Is it legal that they can mention in that document that in unilateral way they can keep renewing 5 years maintenance in their favour ?
We are frustrated by huge maintenence amount charged (about 5000 per month) and want to take over maintenance.
Advocate Madras High Court & Legal Consultant Chennai Law in Law Firm. +91-9698884779
It is basic law of principle that no agreement against the provisions of existing law is valid.
Herein this case, though you the flat owners signed an agreement with the builders agreeing them to maintain the apartment for 5 long years, it is illegal and not executable since the Apartment Act prescribes time limit to the builders for forming an association of apartment owners and hand over the amenities and maintenance to the said association.
Each apartment complex has its own apartment owners association for maintenance of apartment and its amenities. But before formation of apartment owners association, it is duty of builder to maintain the apartment and its amenities. Most developers provide a corpus fund for maintenance of apartment and its amenities. The maintenance will be carried out by the Builders till the formation of Apartment Owners Association. After completion of project and formation of apartment owners association, builder need to handover left over money, audited accounts of the maintenance fund and interest earned and builder has to handover apartment and its amenities to apartment owners association.
Hence, the agreement entered between the Builder and flat owners is void and illegal. The flat owners now can form into an association/society irrespective of the above agreement.
The association has to give a legal notice to the Builder to Give a legal notice to the handover the Accounts, charge, cash (Maintenance amount) available with the builder to the Association within one month. If there is no response the the association has to file a civil suit against the Builder for mandatory injunction to handover the Accounts, charge, cash (Maintenance amount) available with the builder to the Association along with damages and legal expenses. You may ask for interim injunction to suspend his powers immediately from the date of filing of the suit and for handing over the charge to the association, pending disposal of the main suit.
I agree with the views expressed by learned advocates Ms. Saleema Kabeer and Mr. Ravinder on the subject issue. The builder cannot hold possession of the building for a long time after completion of construction of entire flats, especially not beyond two years and the flat owners have to form an association within that period, upon which the builder has to hand over the entire charge to the association including accounts the corpus fund held by him and other contingent funds. Thus, on his refusal to hand over the building to the association, legal action as suggested may be processed against him including cost for damages due to delay. The association, in its AGM or in an emergency meeting should decide about the subject by passing a resolution.