Regarding cooperative housing society
6 months ago
We have a regd. cooperative housing society. One of the residents of the building had purchased a flat on the top floor adjoining the common terrace. It's not a penthouse since there is a common entrance to the terrace (appr. 600 sq. ft.) and the lift room and the overhead water tank are also there.
However, the said resident perhaps with the earlier person i.e. the seller of the flat who agreed to mention in the Sale Agreement that 200 sq. ft. of the terrace though this flat is not shown as a penthouse in the BMC approved plan. Entire 600 sq. ft. It is shown as the common terrace only.
Before buying the flat, the buyer never met any of the Society members to verify anything.with regard to the terrace etc.
After buying the flat, he got it regd. by paying the Stamp Duty and the Regn. Fees.
Subsequently, he sent the relevant documents to the Society asking them to transfer the Share Cert. pertaining to the said flat. The Society refused to transfer the Share Cert. to his name on the grounds that ths Sale Agreement was bad in law since he had included a part of the common terrace in the Sale Agreement which is contrary to the fact that no common area of the building can be sold or purchased by anyone or claimed by anyone as his/her personal property.
The Society asked him to first provide a rectified Agreement for Sale wherein no area of the common terrace is being claimed OR a Statutory Declaration that he relinquishes his claim about the part of the terrace as mentioned in the Sale Agreement and that he has no right, title or interest in the common terrace of the building. He refused to give the same.
Subsequently, he approached the Deputy Registrar's office asking them to direct the Society to transfer the Flat plus 200 sq. ft. of the terrace to his name. The Registrar's office after some months issued an Order accordingly. However, the Society did not transfer the same to his name and insisted that the buyer should submit to the Society as described above, before the Society can transfer the flat to his name.
He did not submit the same to the Society.
Subsequently, neither he approached any Court nor did the Society approach any Court.
Now the situation is that he hasn't been paying the Maintenance Charges from Day 1 saying that he is not liable to pay the same since the Society has not transferred the Share Cert. to his name and hence not admitted him as a Member of the Society. According to him, he is not liable to pay since he is not a Member of the Society though he has been using and enjoying all the common facilities such as slights, water, lift, repairs, cleaning of the common areas etc.
Lately he has been saying that it is not mandatory for a resident to become a Member of the Society, nor he is willing to become a Member.
Kindly advise.
Floor owners of the building got both land and roof rights collectively in a multistoried housing complex. The rooftops of the Building are also known as an open terrace and a part of the common area useable for all the floor owners of the multistoried building. Legally, a Builder cannot sell the terrace of any multistoried building which is known as a common area usable by all the floor owners of the Building. So, the stand taken by the Society refusing the transfer of the share certificate in the name of the Buyer of the flat is legally correct so far as the bylaws of the society are concerned. So, on the grounds of non-transfer of share certificate, Buyer cannot withhold the payment of maintenance charges when he is availing the services of common facilities. So, before taking any legal action against the errant buyer/resident, following the Deed of conveyance of the flat and the provision of bylaws of the society, all the common facilities like water, sewerage cleaning, power back-up, and other common facilities would be cut off gradually in respect of said flat and a legal notice may be served to him by the society and bring the matter to the notice of the Registrar of Cooperative Societies to resolve the issue failing which Society has to file a money suit against the said buyer/owner and the Builder in the Civil Court claiming entire maintenance charges lying unpaid against him with interest.
The Sale Agreement, in this case, appears to be contentious due to the inclusion of a part of the common terrace. It is vital to consult a property lawyer to understand the legal implications of such an agreement and how it affects the individual's claim over the terrace area. The Society's refusal to transfer the Share Certificate until the discrepancies in the Sale Agreement are rectified seems legally sound. Without a proper rectification deed or statutory declaration, the Society may be within their rights to deny the transfer.
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