Maharashtra ownership flats act and Co-op housing society-related questions and answers

* Encroachment of common areas by members using them for storage
Our Building is having 21 flats, comprising of seven floors. Though the builder has registered the society, but he has not handed over the building formally to the society and since most of the members are working at different places, they have no time to follow-up the matter with the builders. On two floors, some of the owners have occupied the common area of electric duct and fire duct and using the same as store. We received the notice from the Fire Department to clear the area, but they have not responded. Since our society is too small and the members have no time to attend the meetings, what can the society legally do in the matter?

In terms of Section 11 of the Maharashtra Ownership Flats Act, 1963, a promoter/developer has to convey his right, title and interest in the land and building and to execute all the necessary documents and hand over the same to the society and the non-compliance amounts to a criminal offence. No common areas etc. can be encroached upon by any member of the society and the electric duct and fire duct can never be put to any such use of storage etc. by any member on any floor of the building of the society.
The society is fully empowered under the bye-laws to take action against such persons, which may include even the expulsion of the membership from the society.
In case of failure of the society to act, the matter may be taken up with Dy. Registrar of Co-op. societies. In addition, anti-encroachment squad of the Municipal Corporation may be approached to have these ducts cleared of any such encroachment.
The non-compliance of the notice of Fire Department may create problems to the office bearers of the Society.

* Flat sellers refuse to sign society transfer related documents
I have purchased a flat in a society in Malad (West) from the owners, who are related as brother and sister. The Agreement has been registered and they have given me the share certificate and 50% of the transfer fee Rs.12,500, but they have refused to sign the various forms etc. about the resignation from the membership of the society and my enrolment as the member, which are essential according to society. In the registered agreement executed by the vendors in our favour, there is a clause as, “vendor is responsible for the society membership to be transferred in the name of the buyer”. I have sent a legal notice, but they have not responded. Whether there is any alternate remedy, since I do not want to pursue legally, as the vendors are 80 years old and they hail from Goa, which is my native place, besides time and money involved in legal proceedings.

The refusal of the vendors is not legally tenable and justified and they have to comply with the requirements as per the bye-laws of the society. For this compliance, their personal presence is not required at Mumbai and even if it is so, they may execute a power of attorney in favour of their trusted person for this purpose. If still they are adamant, you may move a suitable petition in the court of competent jurisdiction against them for the compliance of the terms and conditions of the agreement for sale, as you have already served a legal notice on them.

* Office bearers illegally holding and selling society parking space
Our building was completed around the year 2004 and the society was formed in March 2006. We have 11 flats with 5 stilt parking and 6 open parking. But the chair person of the society is holding two stilt parking and two open parking, out of which she has already sold one to a member at premium. The treasurer is holding two stilt parking and one open parking. According to them, they have purchased the same from the builders, but they are unable to show any documents. We enquired from the Secretary about any such document, but no reply has been received from her. We reported the matter to the Dy. Registrar of the Societies, but it is a lengthy affair. Please let us know if we can take any other recourse or approach any other department to bring out the truth and take back the illegally occupied stilt and parking slots; so that the same may be allotted to the needy members. We are afraid that as the 3-4 members control the committee, they may sell their flat with the parking to incoming members. Please advise.

No member, including the chair-person or any other office bearer of the society, can hold parking slots contrary to the provisions of bye-laws and no one can sell the same. The society has to follow the bye-laws for the allotment of parking slots (Refer to model bye-law No.78 to 85). In case of the failure of the Dy. Registrar to look into your grievance in a reasonable time, you may approach the Minister of Co-operation at Mantralaya to issue suitable directives to the Dy. Registrar to expedite his enquiry and decision in the matter. Any incoming member purchasing the parking slots shall be doing so at his/her own risk, as such a sale is not binding on the society. The members of the society are also empowered under the bye-laws to have free of cost the inspection of the documents, registers, books, minutes etc. and to obtain the copies of the documents, as per the provisions of Section 32 of the Maharashtra Co-operative Societies Act. You may, therefore, exercise your right and ascertain the veracity of the statements of the chair-person and treasurer from the records of the society.

* Unable to sell A flat without the completion and occupancy certificate
I stay in a building in a registered society at Mira Road but the society does not have a completion certificate as well as the occupancy certificate. I am finding it difficult to sell my flat. Please let me know what is the procedure for obtaining the same, and what is the implication on the buyer, if these documents are not available and how the society has been registered without the CC/OC?

In terms of the provisions of Section 10 of the Maharashtra Ownership Flat Act 1963, as soon as a minimum number of persons required to form a cooperative society has taken flats, the promoter has to take the steps for the registration of the cooperative society and if he fails, the competent authority may upon receiving the application from the persons, who have taken the flats from the promoter, may direct the Dy. Registrar or Asstt. Registrar to register the society. A group of eligible persons may also form and register a cooperative housing society and acquire land to construct flats. Therefore, a society may be registered even where the construction of the building is not complete and occupancy certificate has not been issued. Such certificates have to be obtained on the completion of the construction from the local authority. The building may be occupied only after the receipt of the occupancy certificate and these documents are necessary to ensure that there is no violation of the FSI by the promoter or the builder. During the process of due diligence, a buyer would always like to satisfy that the flat, proposed to be purchased by him, is not an unauthorised construction.

* Flat purchased with joint names but gift deed transfers to single person
My father purchased a flat in my name in the year 2001 and I sold it in August 2008. I purchased another flat in the joint names with my wife, my name being first and her second. In February 2010, I got the gift deed duly stamped and share certificate transferred exclusively in my name. My question is that since the gift deed is not registered, can I claim absolute ownership rights of the flat?

In terms of the provisions of Section 17(a) Indian Registration Act, a gift deed has to be, necessarily, registered and the transfer of the share certificate, exclusively, in your name by the society without having the duly registered gift deed is not valid. A document which requires, compulsory, registration and if it is not registered, it cannot be taken into evidence in any proceedings. Therefore, you cannot claim full ownership rights of the flat on the basis of unregistered gift deed, as and when such a need arises.

* Transfer of inherited flat title in a society undergoing redevelopment
My father was staying with me and my family for three years before he died. Prior to that, he was staying with a woman and her illegitimate son and his wife and when the son came to know, he left that house after handing it over to the society for redevelopment. My father was the sole owner of the flat and before his death he had nominated me for the said flat and made a will in respect of the flat in my name. I have obtained the probate of the will and the case is before the cooperative court about my claim on the flat, as the society is not handing over me the keys of the flat. Whether anyone can stop me from getting possession after the will is probated?

If a person has left a will in respect of his self-acquired property in favour of his son, which has been duly probated, in addition to the nomination in the records of the society, the son will be entitled to inherit the flat after the death of his father and society cannot refuse to hand over the keys of the flat to you. But since the matter is now before the cooperative court, you may wait for the final decision in the matter.