Issues of ownership, maintenance and the use of common areas continue to be the most frequent sources of conflict in a cooperative housing society (CHS/the Society). This week, I am addressing three such common situations that many members face — each highlighting how the model bye-laws clearly define the responsibilities of members as well as the managing committee.
The first query deals with a top-floor flat-owner struggling with rainwater seepage and whether such repairs fall under the Society’s or the member’s responsibility. The second concerns a long-standing dispute over corner areas allegedly sold by a builder, with the Society treating them as encroachments. The final query discusses the process of transferring a jointly-owned flat after the death of one co-owner and the legal steps required when the Society refuses to cooperate.
Each case highlights the importance of adhering to proper legal procedures, relying on approved plans and documents and knowing which authority to approach when a Society fails to act fairly.
Society’s Responsibility for Water Seepage and Monsoon Damage
Question: I live in a top-floor, corner flat that is frequently affected during the monsoon. There are several issues, such as water seepage, wet walls, plaster peeling and cracks. I have complained to the Society many times in writing (including emails with photos), but have received no response. When I spoke to a committee member, he said that internal damage is the responsibility of the flat owner. Please let me know if the Society is responsible for repairing this damage. If yes, what immediate action can I take?
Answer: (1) As per the Society’s bye-law no. 159(a)(xiv), the Society is responsible for carrying out, at its own cost, repairs of all water leakages, including those caused by rainwater, external common pipelines and drainage lines.
(2) If the leakage is due to an internal defect inside the flat of the person residing above yours, then that person is responsible for carrying out the repair at his own cost, under bye-law no159(b).
You should bring a licensed repairer, approved by the municipal corporation, to inspect the drainage pipes above your flat and determine the cause of leakage. Based on his report, you can identify under which category (1) or (2) above the repairs fall.
If repairs fall under category 1, obtain an estimate for the work and write to the secretary of the Society, requesting that the repairs be carried out accordingly, at the Society’s cost. The Society can engage a repairer to complete all work, pay the full bill.
If the Society fails to carry out the repairs even after your written request, you can take up the matter with the cooperative court under bye-law no. 174(B)(iii). (You can obtain the address of your cooperative court from the office of the deputy or assistant registrar.)
In your complaint to the cooperative court, attach photocopies of the following documents:
(1) A copy of your complaint made to the secretary under bye-law no. 172, along with the repairer’s report.
(2) A copy of the repairer’s detailed estimate and recommendations.
(3) A copy of the Society’s reply, if any.
Dispute over Builder-allotted Corner Areas and Society’s Right To Levy Fines
Question: The builder sold adjacent areas to the corner row houses on separate stamp papers which the members got registered after the Society was formed. The Society has charged five times the maintenance, stating it as encroachment under Section 169/170A. The members claim that this space was provided by the builder as an amenity, while the Society asserts that it is a common area that cannot be sold. How can encroachment be proved, as these are unequal corner areas within the Society? Does the Society have the right to settle by charging extra maintenance from them?
Answer: If any member encroaches on the Society’s common area, the Society can charge five times that member’s monthly maintenance as a fine until the encroachment is removed. To verify whether the additional area occupied by the member is legally valid, you should contact the assistant assessor and collector at your local municipal ward office. You may also apply to the chief engineer of the town planning department of the local municipality to obtain the approved plan of your Society’s building.
Renovation and Structural Changes without an Occupancy Certificate
Question: We purchased a 1 BHK flat in Kurla in 2004. The building has seven floors with three wings (A, B, and C). Wings B and C received the occupancy certificate, but Wing A did not, as there are three shops on the ground floor. It has been 14 years, and the Society still has not obtained the certificate.
My question is: Can I renovate my flat by relocating the walls to make the carpet area larger? Will any legal action be taken against me by the municipality or the Society? Can they demolish or ask me to demolish the changes made?
Answer: To make any alteration in your flat, you must first take written permission from your Society. Once you get the Society’s permission to make changes by removing or shifting walls, you must appoint a municipality-approved architect.
The architect will determine whether the proposed changes are structurally possible and within the available floor space index (FSI) of the Society. After all alterations are completed, the architect will incorporate the changes made to your flat in the approved plan of the Society. Therefore, to ensure the work is legal and safe, you should follow the above procedure.
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.)
