Managing a cooperative housing society (CHS/the Society) often becomes complicated when rules are misunderstood, selectively applied, or ignored altogether, especially during transitional phases such as builder-managed periods or when members live outside the city. Disputes frequently arise over maintenance charges, misuse of residential premises and arbitrary threats by office bearers as well as by members who are unsure of their rights and remedies.
This week’s questions highlight some recurring problem areas faced by flat-owners and managing committees alike: how maintenance should be levied before formal handover from a builder, how Societies should respond when residential flats are used for commercial purposes and whether a member can be labelled ‘non-active’ merely for being unable to attend meetings regularly. The answers below explain what the law permits, what it does not and the appropriate forums members can approach when rules are misapplied, or authority is misused.
Uniform Maintenance Charges Levied by Builder Before Society Handover
Question: I am staying in a 23-storey tower that is a registered CHS, but it is currently being managed by the builder as the handover formalities have not yet been completed. The handover is pending because certain grievances are yet to be resolved by the builder.
At present, the builder is charging a monthly maintenance amount of ₹11,000 for a 2BHK flat (772sqft—square feet) and the same amount of ₹11,000 is being charged for a 3BHK flat (972sqft) as well. I would like to know whether this system of charging maintenance is just and fair. I seek your expert advice on this matter.
Answer: In a registered CHS, maintenance charges cannot be fixed arbitrarily. According to the model bye-laws, certain components of maintenance are to be charged flat-wise, while others are to be charged based on the area.
Charging the same maintenance amount for a 2BHK flat of 772sqft and a 3BHK flat of 972sqft, without proper breakup and justification, is not just and fair if area-based charges are included uniformly.
Since the Society is already registered, even if the builder is managing it pending handover, maintenance must be levied in accordance with the bye-laws. If the builder continues to charge undue or improper maintenance, you can make a complaint under bye-law no. 174(B)(ix) before the cooperative court, making the builder a party to the complaint.
For this purpose, you should engage the services of an experienced lawyer to file and argue the matter before the cooperative court.
Use of Residential Flats for Commercial Offices and Municipal Remedies
Question: I am the secretary of a CHS with 46 flats. The builder has sold three flats on the first floor to individuals who are using them as offices—one as an architect’s office, one as a CA’s office and one as an IT and hardware company that also stores IT products.
On the second floor, two flats are being used by the builder as his office, while the third flat has been sublet on a leave-and-licence basis to an advertising company for use as an office. Each of these offices has between five and 10 people working in it.
The BrihanMumbai Municipal Corporation (BMC) assessment tax recognises these flats as residential and they use the same entrance and water pipelines as the other residential flats. The Society is charging an ad hoc amount to these flat- owners as ‘other charges’, apart from the regular maintenance charges, for their non-residential use.
In this context, I seek guidance on whether the use of residential flats for office purposes is legally permissible, whether the Society is entitled to levy additional charges for such non-residential use, and what appropriate legal or statutory action the society should take and before which authority.
Answer: Limited professional use of residential flats is legally permissible in Maharashtra, but full-scale commercial office use is not automatically allowed.
Courts and municipal authorities have consistently recognised that certain professionals such as CAs, architects, doctors, lawyers and consultants may use their residential flats for professional work. However, this permission is conditional. The flat must remain primarily residential in character; the activity should generally be carried out by the flat-owner, with only minimal staff involvement. There should be no commercial storage, no structural changes, and no nuisance, heavy visitor traffic, or disturbance to other residents.
When a flat is used as a regular office with five to 10 employees, frequent visitors, business signage, or storage of goods, it ceases to be incidental professional use and becomes a commercial activity. Similarly, using flats as builder offices or subletting them to companies on a leave-and-licence basis for office purposes goes beyond what is normally permitted in a residential building. Such commercial use requires formal change-of-user permission from the BMC and must comply with development control regulations (DCR). Without these approvals, the use is unauthorised.
The fact that the BMC assessment tax categorises the flats as residential and that they use residential entrances and water lines reinforces that the sanctioned use of the building is residential, not commercial.
Regarding Society charges, the CHS is legally entitled to levy higher maintenance charges for non-residential use, provided this is approved in the general body meeting (GBM) and applied uniformly. The charges must be reasonable and should reflect the additional burden on the Society facilities such as lifts, water, security and common areas. The Society cannot impose arbitrary or punitive charges. Importantly, charging extra maintenance does not make an otherwise illegal commercial use legal. The Society cannot regularise misuse merely by collecting higher charges.
In your case, there are several potential statutory violations, including the misuse of residential premises under municipal regulations, the absence of a change-of-use permission from the BMC, commercial subletting, the storage of goods in a residential building and possible fire safety violations due to office use with multiple employees.
The correct course of action for the Society is as follows. First, issue written notices to the concerned flat-owners, asking them to clarify the nature of use and to produce documentary proof of BMC permission for commercial use, as well as any required fire safety approvals. Second, pass a clear resolution in a GBM that defines what constitutes limited professional use, what constitutes prohibited commercial use and outlines any additional charges that apply, ensuring consistency and fairness.
Most importantly, the Society should approach the BMC by submitting a written complaint to the assistant municipal commissioner of the ward and the building proposal department. Only the BMC has the authority to inspect the premises, determine misuse, impose penalties, order stoppage of unauthorised activity, or seal premises if required.
If there are multiple employees or storage of IT or electrical equipment, the Society can also approach the Mumbai Fire Brigade, as fire safety clearance is mandatory for commercial offices and its absence is a serious issue.
If the concerned members or the builder refuses to comply even after notices and municipal action, the Society can approach the cooperative court for appropriate relief, including directions to stop unauthorised use.
What the Society should avoid is informally permitting commercial activity by collecting extra charges, selectively acting against some members while ignoring others, or assuming that higher maintenance legitimises the misuse.
You must be persistent in following up on your complaint to ensure that the municipality acts.
You should also file an RTI application with the information officer of the municipal ward office, seeking details of the action taken by the ward officer on your complaint. If required, you may file a Lokshahi Din complaint with the municipal commissioner.
If the matter is pursued properly, action will be taken against those flat owners who are using residential premises for commercial purposes.
Threat of Being Declared a Non-active Member for Non-attendance at Meetings
Question: I own a flat in a Mumbai CHS but live in Delhi. My Society payments are always made on time. I participate in the Society’s WhatsApp group and stay in touch with the secretary via email and phone. I have never created any nuisance or misbehaved in any manner.
However, the secretary has stated that he will declare me a non-active member for not attending the Society meetings. My question is: Can he do this to an outstation member who pays dues on time and maintains proper conduct?
Answer: A Society can declare a member non-active only on the following two grounds:
- If the member has not paid the Society’s dues continuously for five years.
- If the member has remained absent from the Society’s annual general body meeting (AGM) continuously for five years.
However, if, at the end of each AGM, the secretary passes a resolution on the agenda granting leave of absence to all members who remained absent for that AGM, then even if a member remains absent for life (but pays Society dues regularly), they cannot be declared a non-active member.
You should check whether you have been absent from the AGMs continuously for five years, starting from the financial year 13–14. If you attend the next AGM, you will automatically become an active member.
After attending the AGM, obtain a certificate from the secretary confirming your attendance. This will help you defend yourself in case you need to approach the deputy registrar to confirm your status as an active member.
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.)
