Housing Society Problems & Solutions: Amalgamation of Two Adjacent Flats; Recovery of Maintenance Dues
Shirish Shanbhag 01 February 2024
Often, resident members in cooperative housing societies (CHS) buy flats in new or redeveloped buildings, which adjoin each other and, for habitual convenience, merge them into a single flat (or a duplex flat if situated on separate floors). In most such cases, the owners remain ignorant of the rules that require them to seek explicit permission from the municipal authorities before undertaking construction to merge adjoining flats. Amalgamation without permission is not only illegal but could turn out to be unsafe for the residents of said building. 
 
This week, I will guide you on such an amalgamation process and the mandatory documents that need to be submitted before undertaking such a process. I will also address the issue of recovering outstanding maintenance dues from the heirs of a deceased flat-owner. 
 
Amalgamation of Two Flats into a Single Flat
 
Question: In our housing society, a member owns two flats, one in the name of himself and his wife, and the other in the name of himself and his son. He is paying maintenance charges for two flats. The owner now wants to amalgamate both flats into a single flat, with the share of ownership being 50% for himself, 25% for his wife and 25% for his son. 
 
What are the legal formalities that the owner should complete so that the Society will allow them to amalgamate his two flats into a single flat?
 
Answer: Firstly, to amalgamate two flats into one flat, both flats should be adjacent to each other. You have not clarified whether this is true in your case, but I assume it is so while providing my solution below. 
 
Here, the three owners of these two flats should submit a joint application to the Society to amalgamate the apartments. They should give an indemnity bond on Rs500 non-judicial stamp paper and register it with the sub-registrar of assurances office. In such an indemnity letter, they should state that:
 
(1) They will do this work through a municipality-approved architect after obtaining the municipality's permission and will carry out all changes as per the approved plan of the municipality at their own cost.
 
(2) They will inform the municipality and get a new flat plan approved for property tax.
 
(3) They will bear the cost of all legal works for the amalgamation of flats and for all the necessary changes in the Society records, such as cancelling one share certificate and other such related paperwork.
 
(4) They will make an agreement as per their required changes in ownership of the new flat, i.e., father owning 50% share, mother with 25% share and their son with 25% share, as joint owners.
 
All three owners will also do an affidavit-cum-undertaking on Rs200 non-judicial stamp paper and register it with the sub-registrar of assurances office.
 
Managing Committee Insisting on Release Deed To Transfer Ownership of Flat
 
Question: I am the sole nominee of the flat of my deceased widowed mother. My elder sister and I are the only two legal heirs of our parents. My elder sister is willing to relinquish her rights in the presence of the managing committee of the Society. One of the managing committee members insists that a release deed in my favour should be executed and registered. Please confirm whether executing a release deed is mandatory, whether it needs to be registered, and what the ramifications are if this procedure is not followed. Please also suggest any less expensive alternatives.
 
Answer: Release deed can be made on Rs500 non-judicial stamp paper by you and your sister by attaching a copy of the death certificates of your father and your mother, a copy of the share certificate of your mother's flat, a copy of the PAN and Aadhaar of your sister and yourself along with passport photos. On the same paper, the PAN and Aadhaar of two witnesses should also be attached.
 
This release deed should be registered with sub-registrar of assurances office, where the registration fees that need to be paid are only Rs1,000. To get the share certificate of your mother transferred in your name, you further need to submit the following documents to the Society: 
 
i. Sub-registrar of assurances certified copy of the release deed and its index-2,
 
ii. a membership application form as in appendix-2 of the model bye-laws, in two copies,
 
iii. an undertaking on Rs200 non-judicial stamp paper (as given in appendix-3), 
 
iv. a nomination in the application form as given in appendix-14, in three copies,
 
v. original share certificate of your late mother, with Rs600 by a crossed cheque in the name of your Society, which includes Rs100 as membership entrance fees and Rs500 as membership fee.
 
The share certificate would then be transferred in your name, making you the sole owner of the flat.
 
Usually, a succession certificate is asked for such work which costs at least Rs75,000 as court fees and a minimum of Rs50,000 for advocates' fees. I leave the decision up to you to decide which is the cheaper and easiest method of transferring ownership of your mother's flat in your name. 
 
NOTE
We will not be answering queries posted in the comments. Only questions sent through the Moneylife Foundation's Legal Helpline will be answered. If you want to seek guidance or ask questions to Mr Shanbhag, kindly send it through Moneylife Foundation's Free Legal Helpline. Here is the link: https://www.moneylife.in/lrc.html#ask-question
 
Recovering Maintenance Dues from Heirs of Deceased Owner
 
Question: One of our society members died by suicide in 2014. He was single, so the flat was later transferred to his mother's name. All his immediate family reside in Uttar Pradesh and are not interested in taking care of the flat or paying maintenance dues. They have never communicated to the managing committee and the Society does not have their contact details on record. They only have a postal address of his hometown which they are not sure is still a valid address for contact. What options does the committee have to recover maintenance from them?
 
Answer: For the concerned flat's dues, you should start recovery proceedings under MCS Act 1960, Section 154b-29 (earlier 101) against the present flat-owner by hiring the services of a good advocate.
 
If the dues continue to be high and the owner does not intend to pay such dues, then the advocate will move the court to auction the flat. The money earned from the sale of such an auctioned flat can be used to cover the outstanding dues, while the excess remaining amount should be kept in a fixed deposit in the Society's name, to be given to the heirs of the flat-owner, if they approach the Society with a court order in the future. 
 
In case no such person approaches Society for 10 years after the sale of the flat, then the saved amount can be considered Society's reserve fund.  
 
Transfer of Ownership for a SRA Flat
 
Question: My maternal uncle has an slum rehabilitation area (SRA) allocated property in Mumbai which he wants to transfer in my name through a gift deed. The said property has already completed the lock-in period of 10 years. Please advise on what legal work would need to be undertaken for this process and what the expenses for it would be.
 
Answer: Your uncle should do a gift deed of his flat, pay 3% of the market value of the flat as stamp duty on it and register the gift deed with sub-registrar of assurances office.
 
You should then submit to the Society a copy of that gift deed and its index-2, a membership application as in appendix-2 (in two copies) of the Society's bye-laws book of the year 2014, an undertaking on Rs200 non-judicial stamp paper as in appendix-3, nomination form as in appendix-14 (in three copies), Rs600 in a crossed cheque in the name of the Society towards membership fees and the original share certificate of your Society. Collect and submit all these documents in a single file to your Society. 
 
The Society would then transfer the share certificate in your name after about 15 days and, thus, you can become owner of your uncle's flat. In this case, Society will not charge your transfer premium of Rs25,000, as flat is transferred to a relative as stated in bye-law no. 3(xxv).
 
Disclaimer: The guidance provided in these columns and on our Legal Helpline is on the sole basis of the facts provided by the reader/questioner and does not amount to formal legal advice in any form whatsoever. 
 
(Shirish Shanbhag has an MSc in Organic Chemistry, a Diploma in Higher Education, and a Diploma in French and has completed his LL.B. in first class in 2021. Before his retirement, he was a junior college teacher at Patkar College from July 1980 to May 2012, teaching theoretical and practical chemistry. Post-retirement in 2012, he started providing guidance and counselling to people on several issues, specifically focusing on cooperative housing society-related matters. He has over 30 years of hands-on experience in all matters about housing societies and can provide out-of-box solutions for any practical issue.)
 
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