RWA (Residents Welfare Association) formation Query
6 years ago
Respected Sir/Madam,
I am staying in a flat which is been registered under my name in Bangalore which is been approved by BBMP, but we dont have a O.C. yet. Where half of the total flats belongs to the land owners (treaty between the builder and land owners). We wanted to form an association RWA (Residents Welfare Association), wanted some information on the below questionare before we proceed forming association:
1. Can we form an RWA Association without getting OC ?
2.. Can we form RWA without registering under Karnataka societies act or not? If we can form, then will it have the legal credibility to all the notices that we issue on behalf of this unregistered RWA?
3. If we have to register this RWA, then all flat owners including landowners should be part of it or not? Can we form RWA with only few flat owners also?
3. Can we form RWA with a condition stating that we take of only maintaining the apartment and we are not responsible for any other issues like maintaining backside/extending the play area etc.., any unexpected incidents like snake biting, sucide attempts, murder, death etc.. within the apartment premises.
4. And also not responsible for any unpaid bills to government departments.
Thanking you in advance.
Rami Reddy
Responded 3 years ago
A.Now, one has to register the apartment association under Karnataka Apartment Ownership Act, 1972 only, because in Societies act there was no provision for the apartments. Accordingly to KAOA, 1972, Deed of Declaration, Byelaws, other annexures should be registered in Sub registrar office. Later on the certified copies along with Form B and request letter should be submitted to Registrar.
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Deepak Yashwantrao Bade
Responded 5 years ago
A.dear client kindly go through any commercial lawyer because If you form an Association and dont register it, it has no legal identity. First of all the builder has to hand over the management to a registered association and later on all the ownership. Association can also be registered under Trusts Act.
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A.Dear Sir,
The following rules may be perused to clear all your doubts.
==========================================================================================================
Association Registration Under Karnataka Apartment Ownership Act
The Karnataka Apartment Ownership Act of 1972 (KAOA), which came into force in 1975, encourages homeowners to form associations on democratic grounds. These associations ensure a smooth functioning within the housing societies and apartment complexes. Generally, such associations are registered by the developers. However, in case that doesn't happen, the apartment residents can take a lead and get it registered with the help of a lawyer.
The case in Karnataka
In Karnataka, there is a general confusion about whether apartment associations must be registered under Karnataka Apartment Ownership Act 1972 or Karnataka Societies Registration Act 1960 (KSRA). By law, the KAOA is the provision. But, the confusion arises because there is no authority specified for it to register the association through the Registrar of Cooperative Societies is regarded as the competent authority in this regard. However, note that you have the provision to tackle issues if you go by the rules of the KAOA. When it comes to the KSRA, the powers are well laid out and therefore, it paves way for such confusion. At this juncture, it is important to mention that while the KAOA deals with apartment complexes, the KSRA's jurisdiction involves- literary, scientific, charitable and other organisations. As of now, those registering their apartments along the KSRA guidelines, generally put in a 'welfare' motive in the clause.
Is Your Apartment Association Registered?
Besides, the KSRA, most apartment owners also get confused with the Karnataka Ownership Flats Act (KOFA). Promotion, construction, sale, management and transfer of the apartment only. On the other hand, KAOA was passed to help make apartments heritable, transferable and mortgageable as also to address the management of the property.
Other key features of KAOA
• The homeowner under the KAOA is the absolute owner with a clear title of the apartment and its proportional undivided share (UDS).
• It is governed by the Transfer of Property Act,1882.
• It requires a Deed of Declaration that describes the property- byelaws, the number of units, lifts, generators, gymnasiums, pools, firefighting equipment and such common facilities. The Declaration is made perfectly traceable by giving it a registration number as well.
• Owners may also need to sign Form B that states that all home owners/members of the association duly agree to abide by the rules of the KAOA.
• Other provisions include duties of office bearers, the process of voting, charges, and encumbrances against each apartment. It extends to steps to be taken in case of demolition or destruction due to a natural disaster.
Common concerns
There is a difference of opinion among lawyers who consider that KAOA has not served its purpose fully since the role of the competent authority in this regard is unclear. All stakeholders — developers, buyers, banks must be guided about the right way out.
Recently, an activist's RTI received government's response and the latter wasn't sure as to which department is responsible for KOFA or KAOA.
How to register an association Tamil Nadu
An association or a federation should be formed under the Societies Registration Act, 1860.
k Under Section 1 of the Act, any seven or more persons who have come together for any legal pursuits, including literary, scientific, charitable or social pursuits, may subscribe their names to a memorandum of association and file the same with the Registrar and form themselves into a society under this Act.
k The memorandum of association filed with the Registrar should contain details such as the name and objectives of the society, names, addresses and occupations of the members of the governing body with which the management of the affairs of the society is entrusted.
A copy of the rules and regulations of the society should be provided.
k With the completion of these processes, the society could be registered with the Registrar after payment of a fee, which will be specified by the State Government from time to time. At present, the fee ranges between Rs. 500 and Rs. 1,000.
k As per Section 4 of the Act, once in every year, an annual general meeting of the society should be conducted.
If the rules do not provide for an annual general meeting, a list of the names, addresses and occupations of the members of the governing body should be presented to the Registrar, every year.
k How to dissolve an association/ federation: Any number not less than three-fifths of the members of any society may determine that it shall be dissolved. At the time of dissolution, all necessary steps should be taken for disposal and settlement of the society’s property.
k Advantage of registering an association/federation: By virtue of being a registered body, it can file cases relating to civic issues with the Madras High Court.
Case Law
Madras High Court
R.Muralidaran vs The District Registrar on 20 December, 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.12.2007
CORAM
THE HONOURABLE MR. A.P.SHAH, CHIEF JUSTICE
and
THE HONOURABLE MR. JUSTICE V.RAMASUBRAMANIAN
Writ Appeal No. 1333 of 2007
and
M.P.Nos.1 and 2 of 2007
1.R.Muralidaran
2.G.Vasudevan
3.M.R.Santhanam
4.K.Ramanujam
5.V.Mahesh
6.M.Gopinath
7.K.A.Ramasamy ... Appellants.
Vs
1. The District Registrar,
South Madras.
2. Sidharth Heights Apartments Owners Association
rep. By its President, S.Ramakrishnan,
No.55, Arcot Road, Saligramam,
Chennai-600 093.
19. Thus, a careful reading of the entire Act shows that the role of the Registrar is clearly defined by the statute in respect of various statutory obligations created under the Act. The functions expected to be performed by the District Registrar have been clearly demarcated into three categories, viz., (a) Ministerial, (b) Administrative and (c) Quasi-judicial. This can be easily appreciated by the language employed, in each of the provisions of the Act, where the Registrar is assigned a role/duty.
20. Wherever the functions of the Registrar are expected to be merely ministerial in nature, the Act and the Rules do not confer any discretion on him and do not expect him to do anything other than merely filing papers and making entries in the Registers. Wherever the functions assigned to the Registrar are expected to be administrative in nature, the Act and the Rules mandate the Registrar to either, "arrive at a satisfaction" or "approve" the action of the registered society. Wherever the Registrar is expected to perform quasi judicial functions, the Act requires him to conduct an inquiry and pass appropriate orders.
https://indiankanoon.org/doc/1752823/
The following rules may be perused to clear all your doubts.
==========================================================================================================
Association Registration Under Karnataka Apartment Ownership Act
The Karnataka Apartment Ownership Act of 1972 (KAOA), which came into force in 1975, encourages homeowners to form associations on democratic grounds. These associations ensure a smooth functioning within the housing societies and apartment complexes. Generally, such associations are registered by the developers. However, in case that doesn't happen, the apartment residents can take a lead and get it registered with the help of a lawyer.
The case in Karnataka
In Karnataka, there is a general confusion about whether apartment associations must be registered under Karnataka Apartment Ownership Act 1972 or Karnataka Societies Registration Act 1960 (KSRA). By law, the KAOA is the provision. But, the confusion arises because there is no authority specified for it to register the association through the Registrar of Cooperative Societies is regarded as the competent authority in this regard. However, note that you have the provision to tackle issues if you go by the rules of the KAOA. When it comes to the KSRA, the powers are well laid out and therefore, it paves way for such confusion. At this juncture, it is important to mention that while the KAOA deals with apartment complexes, the KSRA's jurisdiction involves- literary, scientific, charitable and other organisations. As of now, those registering their apartments along the KSRA guidelines, generally put in a 'welfare' motive in the clause.
Is Your Apartment Association Registered?
Besides, the KSRA, most apartment owners also get confused with the Karnataka Ownership Flats Act (KOFA). Promotion, construction, sale, management and transfer of the apartment only. On the other hand, KAOA was passed to help make apartments heritable, transferable and mortgageable as also to address the management of the property.
Other key features of KAOA
• The homeowner under the KAOA is the absolute owner with a clear title of the apartment and its proportional undivided share (UDS).
• It is governed by the Transfer of Property Act,1882.
• It requires a Deed of Declaration that describes the property- byelaws, the number of units, lifts, generators, gymnasiums, pools, firefighting equipment and such common facilities. The Declaration is made perfectly traceable by giving it a registration number as well.
• Owners may also need to sign Form B that states that all home owners/members of the association duly agree to abide by the rules of the KAOA.
• Other provisions include duties of office bearers, the process of voting, charges, and encumbrances against each apartment. It extends to steps to be taken in case of demolition or destruction due to a natural disaster.
Common concerns
There is a difference of opinion among lawyers who consider that KAOA has not served its purpose fully since the role of the competent authority in this regard is unclear. All stakeholders — developers, buyers, banks must be guided about the right way out.
Recently, an activist's RTI received government's response and the latter wasn't sure as to which department is responsible for KOFA or KAOA.
How to register an association Tamil Nadu
An association or a federation should be formed under the Societies Registration Act, 1860.
k Under Section 1 of the Act, any seven or more persons who have come together for any legal pursuits, including literary, scientific, charitable or social pursuits, may subscribe their names to a memorandum of association and file the same with the Registrar and form themselves into a society under this Act.
k The memorandum of association filed with the Registrar should contain details such as the name and objectives of the society, names, addresses and occupations of the members of the governing body with which the management of the affairs of the society is entrusted.
A copy of the rules and regulations of the society should be provided.
k With the completion of these processes, the society could be registered with the Registrar after payment of a fee, which will be specified by the State Government from time to time. At present, the fee ranges between Rs. 500 and Rs. 1,000.
k As per Section 4 of the Act, once in every year, an annual general meeting of the society should be conducted.
If the rules do not provide for an annual general meeting, a list of the names, addresses and occupations of the members of the governing body should be presented to the Registrar, every year.
k How to dissolve an association/ federation: Any number not less than three-fifths of the members of any society may determine that it shall be dissolved. At the time of dissolution, all necessary steps should be taken for disposal and settlement of the society’s property.
k Advantage of registering an association/federation: By virtue of being a registered body, it can file cases relating to civic issues with the Madras High Court.
Case Law
Madras High Court
R.Muralidaran vs The District Registrar on 20 December, 2007
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 20.12.2007
CORAM
THE HONOURABLE MR. A.P.SHAH, CHIEF JUSTICE
and
THE HONOURABLE MR. JUSTICE V.RAMASUBRAMANIAN
Writ Appeal No. 1333 of 2007
and
M.P.Nos.1 and 2 of 2007
1.R.Muralidaran
2.G.Vasudevan
3.M.R.Santhanam
4.K.Ramanujam
5.V.Mahesh
6.M.Gopinath
7.K.A.Ramasamy ... Appellants.
Vs
1. The District Registrar,
South Madras.
2. Sidharth Heights Apartments Owners Association
rep. By its President, S.Ramakrishnan,
No.55, Arcot Road, Saligramam,
Chennai-600 093.
19. Thus, a careful reading of the entire Act shows that the role of the Registrar is clearly defined by the statute in respect of various statutory obligations created under the Act. The functions expected to be performed by the District Registrar have been clearly demarcated into three categories, viz., (a) Ministerial, (b) Administrative and (c) Quasi-judicial. This can be easily appreciated by the language employed, in each of the provisions of the Act, where the Registrar is assigned a role/duty.
20. Wherever the functions of the Registrar are expected to be merely ministerial in nature, the Act and the Rules do not confer any discretion on him and do not expect him to do anything other than merely filing papers and making entries in the Registers. Wherever the functions assigned to the Registrar are expected to be administrative in nature, the Act and the Rules mandate the Registrar to either, "arrive at a satisfaction" or "approve" the action of the registered society. Wherever the Registrar is expected to perform quasi judicial functions, the Act requires him to conduct an inquiry and pass appropriate orders.
https://indiankanoon.org/doc/1752823/
Helpful
Helpful
Share
A.If you form an Association and don`t register it, it has no legal identity. First of all the builder has to hand over the management to a registered association and later on all the ownership. Association can also be registered under Trusts Act.
Helpful
Helpful
Share
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