Answers for queries on property matters co-op housing societies

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CAN SOCIETY PUT ITS NAME ON THE PROPERTY CARD FOR LAND THAT HAS BEEN LEASED ?
My father-in-law had a bungalow with open land approximately 800 sq. ft., which he gave to a builder on lease-hold basis to develop a building in the year 1975. After the completion of the building in 1979, a lease-deed was executed between my father-in-law and the society, with the builder as the confirming party, duly registered in April 1979. In addition, a Deed of Conveyance was also executed on the same day between the builder and the society, with my father-in-law as the confirming party, wherein his name appears as a purchaser of the flat, but no original documents are available. The society was paying lease amount of Rs.7200 per annum till about January 2010 i.e. approximately for the last 20 years. Suddenly the society has stopped paying the lease rent and applied to the Collector’s office to include the society’s name in the property card. My father-in-law has expired recently. Please advise if the society was correct in stopping the lease rent and whether they have got the right to get their name on the property card, though we still occupy part of the land with our bungalow.

It seems that the entire land, including beneath the bungalow, is a free hold land of your father-in-law and a portion of land, admeasuring 800 sq. ft, was given to the builder to construct the building and on the registration of the society, your father-in-law executed a lease deed for this portion of the land admeasuring 800 sq. ft and the conveyance deed for the building in favour of the society, with the builders as confirming party. The society is bound, as per the terms and conditions of the lease deed, to pay the lease rent to the legal heirs of your deceased father-in-law till the expiry of the lease term. In the property card the names of the legal heirs of your father-in-law will appear as the owners of entire property and the society for the building on the said portion of the land as the lessee. It will be necessary for the legal heirs of your father-in-law to obtain a succession certificate from the court in their favour, if he has not left any will. In case of a will, a probate will be required to be obtained. Thereafter, the legal heirs can proceed against the society for the payment of the lease rent as per the terms and conditions of the lease deed.

CAN SOCIETY LEVY MAINTENANCE CHARGES SEPARATELY TO A MEMBER FOR THE GARAGE?
Our society is 25 years old and has 5 garages each linked with the flat holders, as the same is shown in the Agreement of Sale of individual members. Till date society is charging garage charges only at Rs.100 per month from the members, who are in possession of the garages with the flats. I would like to know whether the managing committee can ask for and levy separately the charges like service charge, insurance charge, property tax, repair and maintenance and sinking fund for garage in addition to the flat from such members?

In terms of ‘definitions’ under section 2 of Maharashtra Owners Flat Association 1963, a garage, as described by you, falls in the definition of ‘a flat’. The levy of charges by the society are given in Chapter VIII bye laws No.67 to 69 of the model bye-laws. The service/ maintenance charges have to be borne by all the members of the society equally. The members, who own the garages may have to share these charges for two units. The property tax will be payable by the members as fixed by local authority. Water charges are payable on the basis of total number and size of inlets provided in each unit. The expense on repairs and maintenance and sinking fund are based on the construction cost of each unit. It may be clarified that the ownership of the garages in such cases vests with the owners along with the flat and no other member in the society will have right to use the same.

CAN DECEASED MEMBERS NOMINEE OR HEIRS ATTEND SOCIETY MEETINGS?
I am an associate member, as well as the nominee, for the flat owned by my father, who has expired on 28.11.2010. Our society is going for redevelopment. Whether my two elder brothers, being legal heirs may attend the society meetings and whether the present managing committee, without forming the redevelopment committee, may take all the decisions and any member, whose flat is road facing may claim from the builder new flat also road facing and whether any member occupying flat of ground floor road facing can claim extra benefit from the builder, who is planning to construct ground + first floor as commercial. For transfer of the flat in the name of the nominee, what documents are required to be submitted to the society and after transferring the same in my name, may I surrender the same to the builder?

After the death of your father, the society has to transfer the flat in your name as the nominee but by virtue of that, you would not become the exclusive owner of the flat. In the absence of any will by your father his Class-I heirs, such as your brothers, sisters (married/unmarried), your mother and grand mother, whosoever may be live, will be entitled to succeed to his property, including his flat. If your brothers are interested to attend the society meetings, they may enroll themselves as associate members and decide who would attend the meeting on your authority letter and in your absence. All the three cannot attend the society meetings. You, being the nominee, will be recognized by the society as the member and will be entitled to attend the meeting. As regards the location of the flats on redevelopment by the builder, this is entirely a matter of negotiations with the builders and the society. If you want the exclusive ownership of the flat in your name, succession certificate will be required to be obtained from the court and all the legal heirs, excluding you if you happen one of them, will have to execute a gift deed in your favour, which would attract stamp duty at 2% of the present market value of the flat (excluding your share if you are one of the legal heirs) and the registration charges at 1% thereon (subject to a ceiling of Rs.30000).

WILL OUR SHARE IN THE REDEVELOPMENT FLAT GO TO NOMINEES OR ALL HEIRS?
My father had a flat in a society, who expired before three years and mother expired prior to him. We are five brothers but father nominated his three sons for the flat. Please advise whether we all five brothers will have the share in the flat and in case one nominee is dead, whether his share will go to his wife and children. The building is going for redevelopment and the builder gave 18 months rent, what is the share of all the nominees or all five brothers?

The succession to the property of your deceased father, including the flat, will be governed by the personal law applicable in your case. The nominees hold the property merely as the trustee or agent on behalf of all the legal heirs of the deceased. If the nominee happens to be the legal heir of the deceased, only his share shall pass on to his legal heirs. The amount received from the builders on redevelopment shall belong to all the legal heirs of your deceased father.

CAN THE SOCIETY CHARGE EXTRA MAINTENANCE FROM A MEMBER WHO IS GIVING TUTIONS?
I am the owner of a flat in a registered society for the past 8 years. Since our occupation of the flat, my wife is giving private tuitions. Recently, the managing committee has decided to charge an extra amount over and above the regular society charges, because of the tuitions being given by my wife in the flat. Whether is it correct on the part of the society to collect extra amount due to this reason?

The society has got no right to charge any extra amount from you on the ground that your wife is giving private tuitions in the flat. However it may be kept in view that in terms of model bye-law No.50, nothing should be done in the flat which may cause nuisance, annoyance or inconvenience to any of the members of the society or no practice be carried, which may be repugnant to general decency or morals of the members of the society. In such a situation, the society has the right to stop all such practices. Nevertheless it is a question of facts and circumstances of each individual case to be decided by the committee and or the general body meeting and in case of any grievance, the matter may be taken up with the Dy. Registrar of the Societies.