Disputes in a cooperative housing society (CHS/the Society) often arise from a lack of clarity regarding the rights and responsibilities of members and the managing committee. Issues such as whether maintenance charges can be withheld in the event of unresolved repairs, how a flat is transferred after the death of an owner, and what additional charges a society can legally levy often lead to confusion and conflict. This week’s queries address these common concerns and explain the correct legal position under the applicable bye-laws.
Can You Withhold Maintenance Charges Due to Leakage from Society Property?Question: There is leakage/seepage in my flat hall, balcony and bathroom due to poor waterproofing of the swimming pool situated directly above my flat. Emails and written requests to the Society have fallen on deaf ears.
I have stopped paying monthly maintenance charges for the past three months as a protest against the Society's inaction to stop the leakage into my flat. I have also given an estimate of ₹73,000 for repairs to plaster and painting of my damaged walls and ceiling due to leakage from the society’s swimming pool.
The Society is threatening to apply 18% interest on maintenance arrears. Please advise whether I am correct in withholding maintenance charges, which I intend to use for repairs to my flat.
Answer: You cannot stop paying maintenance charges for your flat to your Society, even if there is a leakage in your flat due to the Society’s swimming pool located above your flat. The Society is responsible for maintaining its common structures, including the swimming pool. Kindly pay all pending dues of your flat to the Society.
Then, obtain a certificate of leakage from a municipality-recognised architect after paying his service charges. With that certificate, you should make a complaint to the assistant engineer of the building and factory department in the local municipal ward office.
Perhaps within one month of your complaint, the assistant engineer will ask your Society either to close the swimming pool or repair the leakage to the satisfaction of the local municipal authority.
Can a Society Transfer a Flat Solely to a Nominee After Owner’s Death?
Question: In my Society, one flat owner (husband and wife) passed away, leaving behind two sons and one daughter. The owners were residing with one son in the same flat and had made a nomination in favour of that son before their death. Can the Society transfer the said flat in the name of the nominee? If not, what is the procedure?
Answer: A nominee is only a custodian of the flat and the ownership rights remain with all the legal heirs. The deceased flat owner and his wife have two sons and one daughter. Assuming that the other two siblings have no issues, all the children should jointly execute a ‘release deed’ in favour of the one son to whom the Society intends to transfer the flat.
This ‘release deed’ should be made on ₹500 non-judicial stamp paper, purchased in the name of the eldest child, and should be witnessed by two persons who know all three children as the legal heirs of the deceased parents. The ‘release deed’ should be registered with the sub-registrar of assurances office. The registration fee is ₹1,000.
With a copy of the registered release deed and its Index-II, the Society can transfer the flat in the name of one of the sons, even if he is the nominee of the flat.
If the Society knows who the legal heirs of the flat-owner are, and if among such heirs there is no dispute in sharing the flat of the deceased owners, then either with a release deed (in favour of one son) or a confirmation deed (for everyone) on Rs500 non-judicial stamp paper, the Society can transfer said flat in the name/s of legal heir/s.
If all children want equal ownership of the flat, a confirmation deed should be executed on Rs500 non-judicial stamp paper, with all legal heirs on the same stamp paper. It should also be registered with the sub-registrar of assurances. Registration fee for any deed is Rs1,000.
In case there is a dispute with legal heirs or they want to share the deceased owner's property unequally, then such a matter needs to be taken to a competent civil court under a testamentary petition by all the legal heirs, which will allow them to acquire a succession certificate.
Can Societies Levy Move-in/Move-out Charges on Members and Tenants?
Question: Can a registered Society in Mumbai charge one-time moving-in/moving-out charges to members who sell flats or give flats on rent, under Section 65(xviii) ‘any other charges’ of the bye-laws, if approved by the general body?
Answer: Your Society can charge reasonable move-in and move-out charges if such charges are approved by the general body under the relevant bye-laws. However, such charges should be reasonable and related to the actual use of Society resources or possible wear and tear, and should not be arbitrary. If any additional charges are levied, they should be uniformly applicable and properly approved by the general body of the Society.
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.)
