Disputes over property transfers, unauthorised alterations and the rights of legal heirs continue to be common concerns in a cooperative housing society (CHS/the Society). This week’s questions highlight three such issues: the procedure for transferring a flat purchased through an auction when the Society is under an administrator, the steps required to remove a deceased joint owner’s name from the share certificate and the action that can be taken when a flat-owner carries out construction without the necessary approvals.
Each situation illustrates the importance of following the procedures laid down in the co-operative bye-laws and municipal regulations, as well as understanding the limits of a society’s authority.
Each of these problems stems from a mix of misunderstanding and non-compliance — either by the managing committee or by members unfamiliar with the legal process. The answers below explain the correct procedures, the limits of a Society’s powers and the proper authorities to approach for resolution.
Transfer of Auctioned Flat When Society Is under an Administrator
Question: A friend’s brother bought a flat in a CHS through an online auction. The CHS is under an administrator. The share certificate is still in the name of the defaulter member. How will the flat transfer process take place and who will complete the necessary transfer forms on behalf of the existing (defaulting) member?
Answer: The buyer of the defaulter’s flat should get the sale deed registered in his name through the defaulter member (the flat’s owner). If the financer of the flat has taken ownership of the defaulter’s flat by paying its full price, then the financer will act as the seller of that flat and will execute the sale deed with the buyer.
If the financer has not transferred the flat in their name, then the buyer must file a civil court petition against the seller (defaulter owner), the financer and the Society to obtain a court order directing that the flat be transferred in his name.
With the court’s judgement and the allotment letter from the financer, the buyer must apply to the collector of stamps for adjudication of the allotment letter and payment of the applicable stamp duty and registration charges. After adjudication, the collector of stamps will issue challans for payment of stamp duty and registration fees to register the allotment letter. Once the buyer pays these charges, the collector will issue an order to the sub-registrar of assurances to register the allotment letter.
After registration, the sub-registrar will provide the registered allotment letter and its Index-II. With photocopies of these documents, the buyer can fill in the required membership forms and pay the applicable society fees to the administrator for transfer of the share certificate in his name.
Since the administrator does not have the authority to transfer the flat’s share certificate directly, he must seek permission from the deputy registrar to complete the transfer. If elections are due shortly, the administrator may instead ask the newly elected managing committee to carry out the transfer.
This is the proper process for transferring the share certificate of the auctioned flat in the buyer’s name.
Removing Deceased Joint Owner’s Name from Share Certificate
Question: The flat is jointly owned by the husband, wife and father. There is no nomination or a Will made by the father. The father has passed away, and we want to remove his name. The father had five daughters and three sons. One daughter and her husband are deceased and one brother has also passed away. What should be the procedure?
Answer: I presume that the flat is jointly owned by you, your wife and your father. Out of the three sons, two are living and one is deceased. Out of the five daughters, four are living and one is deceased. The deceased daughter’s husband is also no more.
While preparing the ‘release deed’, all living heirs — the three living sons, four living daughters, and the sons and daughters of the deceased son and deceased daughter — along with you and your wife, will be parties to the document. All the heirs (except you and your wife) will be releasors and you and your wife will be releasees in this ‘release deed’.
If the deceased brother’s or sister’s children are minors, or if there is any dispute among the heirs, you must file a testamentary petition in the competent district civil court to obtain a court order releasing your father’s share in the flat in your favour. After receiving the court order, you can execute and register the ‘release deed’ with the sub-registrar of assurances.
To execute the release (or relinquishment) deed, you must purchase a ₹500 non-judicial stamp paper in your name. The registration charges for the release deed are ₹1,000. After registration, submit a copy of the release deed and its Index-II to your housing society to have your father’s name deleted from the share certificate, retaining only your and your wife’s names.
Illegal Bathroom Construction & Eligibility of Occupiers for Managing Committee
Question: The flat-owner residing above my flat has constructed a bathroom and toilet in his flat without written consent from the Society. His contention is that, according to the approved plan of the Society, an area has been designated for a bathroom and toilet. The previous owner had removed the bathroom and toilet before the flat was transferred to the present buyer. There is no intimation or approval from statutory authorities, specifically the BrihanMumbai Municipal Corporation (BMC), for this additional construction.
Although objections were raised by me and some office-bearers, these were ignored and, with the support of some managing committee members, the present flat-owner completed the construction of the bathroom and toilet.
Additionally, please let me know whether an occupant of a flat in the Society can be elected to the managing committee. If not, does the decision taken by such a managing committee become null and void?
Answer: Your query has two questions.
(1) Construction of bathroom and toilet by the person residing above you:
Construction or alteration in a flat must be carried out only with the permission of the society and with approval for modification from the municipal authority. This modification must be done with the help of a municipality-approved architect.
If the person above you has made these changes without the Society’s or municipality’s permission, then under bye-law no. 172, you should ask the Society whether such permission was taken and whether any action has been initiated against the erring flat-holder.
If you do not receive a reply within 15 days of your letter, write a reminder to the society. In this reminder, state that under bye-law no. 174(D)(i), you will be making a complaint to the local municipal ward office. When complaining to the municipal ward office, also send a reminder letter afterwards and file an RTI application to know what action has been taken by the municipality on your complaint. In your reminder, mention that if no action is taken within 15 days, you will file a Lokshahi Din complaint with the deputy municipal commissioner.
(2) Eligibility of an occupier to be on the managing committee:
An occupier of the flat in a CHS, if he is not the owner of the flat, cannot become a managing committee member. Even if he is a joint owner of the flat, he cannot contest the election or become a managing committee member of the Society.
According to the CHS bye-laws, a 'member' refers to a person duly admitted to membership of the Society after registration, who holds the right, title, and interest in the property individually or jointly. 'Associate member' means a person who holds the right, title and interest in the property individually or jointly with others, but whose name does not stand first in the share certificate. The original member (whose name appears first on the share certificate) or the associate member (with the original member's written permission) can become a member of the managing committee in a CHS.
A sub-lettee, a licensee, a caretaker, or occupant who is eligible to be a nominal member (with limited rights) and who shall apply through the original member (owner) for sa licencee, a caretaker, or occupantuch membership in the prescribed form applicable, along with an entrance fee of ₹100 may be admitted as a nominal member by the committee. A nominal member cannot be elected to the managing committee, nor can they vote in general body meetings or participate in the election of the managing committee.
NOTE
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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, 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.)
