Query Regarding Maintenance Charges of the Flats based on Carpet Area Size (Per Square Feet Basis V/s Equal Maintenance Charges) Query Regarding Maintenance Charges of the Flats based on Carpet Area Size (Per Square Feet Basis V/s Equal Maintenance Charges)

{A} Legal Provisions of MP RERA Rules 2017:
Provision contains In MP RERA - The below provision in point no. 26 of Annexure A (Rule 9) of Agreement for Sale.

METHOD OF CALCULATION OF PROPORTIONATE SHARE WHEREVER REFERRED TO IN THE AGREEMENT

Wherever in this Agreement it is stipulated that the Allottee has to make any payment in common with other Allottee(s) in the project, the same shall be the proportion which the carpet are of the (apartment/flat) bears to the total carpet area of the (apartments/flats) in the Project.

{B} Legal Provision of Madhya Pradesh Prakoshtha Swamitva Rules, 2019
Section 2 definition as below :
(e) "Apartment owner" means the person or persons owning an apartment and an undivided interest in
the common areas and facilities appurtenant to such apartment in the percentage specified in the
deed of apartment;
(k) Common areas and facilities" in relation to a building means all parts of the building or the land on
which it is located an all easements, rights and appurtenances belonging to the land or the building, which are neither in the exclusive possession of an apartment owner in terms of his deed of apartment, nor are handed over or intended to be handed over to the local authority other public service agency. This will include the limited common areas and facilities;

(I) "Common expenses means"-

(i) all sums lawfully assessed against the apartment owners by the association for meeting the expenses of administration, maintenance, repair or replacement of the common areas and facilities;
(ii) expenses, declared by the provisions of this Act or by the bye-laws or agreed upon by the association, as common expenses;
(iii) Government and municipal taxes including group rent and property tax, which is not assessed
separately for each apartment;

(y) "Percentage of undivided interest" means the ratio of the built up area of the apartment to the total
builtup area of all apartments of the building.

With regard to above provisions my queries is as below :
Q1. Whether the above provision applicable for calculation of maintenance charges of Flats also ?
Q2. Whether we need to pay our maintenance & common services charges according to size of our carpet area ?
Q3. If spacious flat owners make their majority & form & association for equal maintenance charges then what is the legal remedies available to minority small size flats owners ?
Q4. If all flat owners have legal ownership rights in proportion of their flats size in undivided area of building & all knows that common services like cleaning, guard & electricity used for maintenance/services of this undivided area. In addition if building get renovated/sold/collapsed then in new building/consideration every flat owners get benefit according to size of their flats then why maintenance charges can be levied equal by spacious flat owners thru majority only by making rule in byelaw of housing society ? Whether it is justified & as per principal of natural justice ?
Q5. In most of the housing projects small flats count is less than spacious flats then how the legal provision made in the bye law of society can do the justice with these minority small size flat owners with regard to maintenance charges & other rules for services etc. As a human tendency these spacious flat owners get personal benefit by making legal binding rules in society of equal maintenance charges for all flats so that they can pay less maintenance charge & try to recover more from small size flat owners. Due to misuse of majority rules by spacious flat owners for giving extra financial burden it seems just like a exploitation of these small size flat owners families.
Q6. If Builder while selling the flats recovered maintenance charges from all flat owners based on their carpet area & all flat owners paid it for last two-three years then whether this method can be changed without unanimous approval of all flat owners ?
Q7. If these spacious flat owners already paid to builder while purchasing the flats maintenance charges as per size of flats then how they can now change this method for their personal benefit ?

Please provide your guidance for above queries...

Kishan Dutt Kalaskar Retired Judge

Responded 2 years ago

View All Answers
A.Popular methods of calculating Maintenance charges
There are two common ways in which each housing society can decide the service charges for each member. The society is free to choose the design that suits their respective needs. The two popular methods used to calculate maintenance charges are:
Flat Wise: Flat wise service charge module calculates sum or total maintenance charge to be incurred by the society and divides equally among all flat owners irrespective of the size of the flat. This method brings a sense of fairness to each flat owner and society resident. This method is best adopted in housing societies where each flat is of the same size.
Area Wise: Under the Area Wise maintenance charge method, the total costs incurred by the society are charged according to the area in terms of per square feet owned by each member. The common areas are divided equally using a fixed rate while flats are calculated depending on the size of the apartment. For example, If acrate is Rs. 2/sqt then for 1000 sqft flats it is Rs 2000/per month and for 1500 sqft flat it is Rs 3000/per month.
Understanding Maintenance Charge Calculations
Housing societies have the option of charging their maintenance charges in either per square feet or per flat basis. Regulations in most states are not clear, but the model bye-laws of MOFA provide a simple solution. As per the Act, each housing society must follow a combination of per sq ft and per flat for various heads. There are however some exceptions as Co-operative Housing Socities (CHS) are not allowed to levy maintenance charges based on the area of flat of members under MOFA. This was clearly mentioned in the judgment following a writ Petition of Venus CHS Ltd and another, when the cooperative housing society wanted to switched from flat-wise monthly charges to area-wise monthly charges.
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Ayantika Mondal @ Prime Legal

Responded 2 years ago

A.Hi,
RERA is applicable to the flats which are firstly registered under RERA, we need to understand the location of the flat and whether it has been registered or not before answering the above questions.
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