Encroachment is a common problem in cooperative housing societies (CHS/Society), where some members illegally occupy common spaces of the Society near their apartment or flat. Such encroachment can be a shed, a garden, a parking spot, or even a shoe rack placed in the common lobby.
Encroachment of this nature is entirely illegal, as occupying any portion of Society's common area violates the rights of other residents who are members of the Society. Such illegal encroachment has to be handled with a written complaint to the managing committee, which should ideally be followed by a warning and a subsequent fine on the erring flat owner for non-compliance. Such complaints can also be escalated to the deputy registrar of cooperative societies if the managing committee fails to take any action.
This week, I will explain how such encroachment problems can be resolved. I will also clarify whether nomination by itself is sufficient to transfer ownership of a flat after the owner's demise.
Encroachment by Neighbouring Flat in Common Lobby
Question: My neighbour has encroached upon the common space in the lobby and has placed two large shoe racks in the lobby. After an aggressive follow-up with the secretary, my neighbour was sent a notice around nine months ago. However, there has been no action from either the secretary or the owner. Now, the owner has left the country and given the flat on rent to a tenant. The encroachment remains as it was. The secretary seems very reluctant to take any major action. I am tired of following up every day. Please advise.
Answer: By encroaching on Society's common open areas such as corridors, lobby, and staircase, the flat owner has violated the bye-laws and should be appropriately fined. The Society should levy an amount of Rs5,000 per financial year under bye-law no. 165(a) for such a violation. Under bye-law no. 169(a), the Society should charge a fine, which is five times the flat's maintenance, from the date of the encroachment until it is removed.
Ideally, once you write a complaint to your Society, the erring flat owner should be served a notice to remove the encroachment from the Society's common area within 15 days, failing which a penalty would be levied on the flat as mentioned above.
In your written complaint to the Society, you should mention that if the Society does not serve a notice to the said flat owner within 15 days, then under bye-law no. 174(A)(xxii), you will escalate the complaint to the deputy registrar of cooperative societies.
NOTE
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Is Nomination Sufficient To Transfer Flat After Demise of Owner?
Question: Is nomination alone sufficient or complete for the transfer of a flat on the demise of the owner? Or a Will be also required which will further then need a probate? Or a succession certificate from the court? How would this process be for a single child (no siblings) who is nominated? Can you please explain?
Answer: The nominee does not become an owner of the flat after the flat owner's demise. In Maharashtra, after the death of the flat owner, the nominee is just considered as a trustee of the flat. To have the nominee be considered as an owner, they should get a probated Will of the deceased owner from a competent civil court. If there is no Will, then the nominee should get a succession certificate from a competent civil court.
Alternatively, if all the legatees (i.e. spouse and children of the deceased flat owner) agree, then all of them together shall make a release deed (RD) on a Rs500 non-judicial stamp paper. This RD should then be registered with the sub-registrar of assurances office, whose registration fee is Rs1,000.
With the sub-registrar of assurances certified copy of RD, and its index-2, the nominee can apply for the transfer of flat in their name, along with the membership form available in Appendix-2 (bye-laws book) and an undertaking on form in Appendix-3 (bye-laws book) on Rs200 non-judicial stamp paper.
Transfer of Slum Rehabilitation Authority Flat
Question: We received possession of a slum rehabilitation authority (SRA) flat in 2016. Can you please advise if there is any lock-in period for the same, before we are allowed to transfer ownership? Also, what is the procedure for transferring such a flat if there is no blood relation between the concerned individuals?
Answer: There is a lock-in period of 10 years, when you want to transfer a SRA flat that was received free of cost. With a copy of the flat seller's allotment letter, kindly visit the SRA office, located at Bandra railway station (east) in Mumbai and meet the public relation officer there, who will have an office on the ground floor of that building. He/she shall guide you on the exact procedure you must follow to transfer the SRA flat.
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.)
