Navigating legal processes in a cooperative housing society (CHS/Society) can often be complex and time-consuming, especially when it comes to matters like leasing, property transfers or handling inheritance. Many residents and property-owners are unaware of the specific rules and regulations that apply within a CHS, leading to confusion and delays in completing essential procedures. This week, we will see common concerns related to renting out flats, transferring property ownership amongst family members and handling property inheritance without a Will.
The cooperative housing societies by-laws play a crucial role in guiding these processes. From ensuring proper intimation to the Society and local authorities for rentals, streamlining property transfers amidst the CHS management issues, and seeking legal recourse for inheritance matters, the answers I have given here will clarify these situations. Understanding the legal nuances and following the proper steps can help avoid delays and conflicts in managing your property within a housing society.
Prerequisites for Leasing a Flat in a Housing Society
Question: I want to rent out my flat in a registered CHS. I have already completed the following formalities:
1. I executed a rental agreement with the tenant which is duly registered and has the necessary stamp duty paid.
2. I intimated the local police about the tenancy.
Are there any other formalities I need to complete? Also, is the intimation to the local police with the tenant's registered ID sufficient?
Answer: If your Society has adopted the cooperative societies bye-laws 2015, amended up to December 2019, bye-law 43 allows you to sublet your flat without requiring the Society's permission. However, you are still required to inform the Society of the tenant's name at least eight days in advance. Additionally, you should share a copy of the intimation given to the local police with the Society.
Transferring Share in Flat amongst Siblings
Question: We are three brothers. One of my younger brothers, who owned a flat, passed away intestate and unmarried. Now, my other brother and I want to transfer the flat equally between us, with each having 50% ownership. However, my brother wishes to give 50% of his ownership to his son directly.
The Society is facing management issues and delays, and it is taking a long time to complete flat transfers and other routine matters. We do not want to spend months submitting documents and waiting for the Society to first transfer the flat to us two brothers and then after that transfer is complete, go through another round of paperwork for my brother to gift his 50% share to his son which will take even more time.
Is there a way to complete the transfer in a single submission so that my name and my nephew's (my brother's son) are added to the flat at the same time, with each of us having 50% ownership? A lawyer mentioned that my brother could execute a release deed in favour of his son, bypassing the need for a gift deed and avoiding the lengthy transfer process. Could you confirm what documents we need to prepare to complete the transfer in one step?
Answer: It would be important to know the location of the Society, whether it is in Mumbai or outside, and if either you or your brother are registered nominees. Assuming the Society agrees to process the transfer without a court order or a succession certificate, the best approach would be for both brothers to submit a joint application to have your names added as joint holders/members with undivided shares. Once that is done, your brother can execute the release deed in favour of his son.
If the Society does not respond within three months, you can escalate the matter to the deputy registrar of cooperative societies in your area for action.
Transfer of Flat after Death of Owner in Case of No Nomination
Question: Our mother passed away without leaving a Will. The house is still in her name, with no nominees listed on the share certificate. We are three siblings and would like to have the property transferred to our names. What is the process?
Answer: If the property is in Mumbai, you will need to apply for letters of administration. If the property is outside Mumbai, such as in Vasai or Thane, you will need to obtain a succession certificate from a competent civil court. In both cases, it is advisable to include the CHS as a co-respondent or co-defendant in the legal proceedings, even if you are not seeking any specific relief from them, as a precaution.
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
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.)
