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LEGAL CHAT

Apartment owner has rights, obligations

P.L. NARAYANAN

An apartment owner will mean the person or persons owning an apartment and an undivided interest in the common areas and facilities



SKY IS THE LIMIT: Apartments come up everywhere as a means of having a roof over your head. But comforts mean certain rights and obligations for the owner. PHOTO: H.VIBHU

As the owner of an apartment, you have various rights and obligations. A clear understanding of the same may promote harmonious living. Let us consider some basic concepts.

The word "Flat" is not a legal term. The word has Scottish and Old English origin.

The word "Flet" meant a floor. Obviously, this implied a reference to living in a floor instead of the entire building or premises.

The word "Apartment" has, however, been defined in the "Tamil Nadu Apartment Ownership Act, 1994". It means a part of property intended for any type of independent use including one or more floors or enclosed spaces located in one or more floors (or parts thereof) in a building, intended to be used for residence, office, practice of any profession or for carrying on any occupation, trade or business or for other type of independent use and with a direct exit to a public street, road, or highway or to a common area leading to such street, road or highway.

In common parlance, the word "Flat" is used to mean a residential, semi-residential or non-residential unit; the word "Apartment" was normally used to indicate a residential unit.

sBy virtue of the above definition, the word "Apartment" has been equated to the word "Flat".

An apartment shall be deemed to be intended for independent use even if provision for sanitary, washing, bathing or other conveniences have been made as common for two or more apartments.

An apartment owner will mean the person or persons owning an apartment and an undivided interest in the common areas and facilities. It also includes such of those owners who have obtained their apartments on a hire purchase basis.

What is common?

There is a lot of confusion on the term "Common Areas and Facilities".

As ownership of apartment is linked to an undivided interest in the common areas and facilities, it would be good to know as to how the term has to be understood legally.

The term will mean the land on which the building is located. The foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, terrace, compound walls and fire escapes are included in common areas and facilities.

Water is to be enjoyed in common, by necessity. The term also includes wells and sumps and water supply will fall within the definition of the term. Sewerage and drainage connections are also included.

The entrances and exits of building will also form part of common areas and facilities.

The basements, cellars, yards, gardens, parking areas and storage spaces are to be enjoyed in common.

The premises for lodging of caretakers or persons employed for the maintenance of the property are part of common areas and facilities.

Installations pertaining to power, light, gas, hot and cold water, heater, refrigeration, air-conditioning and incinerating services or equipments are also part of common areas and facilities. The elevators, tanks, pumps, motors, fans, compressors, ducts and in general, all apparatus and installations existing for the common use will be covered by the term.

Limited common area

There is also a concept of limited common areas and facilities.

These can be restricted to certain apartment or apartments to the exclusion of other apartments.

These are allotted as per agreement with the builder or the developer.

Normally, when two or more persons own a property, they will have an undivided interest in the property. One or more persons having co-ownership of a property can claim partition of their share.

The term "Partition" means division or separate allotment of an identified share of a person. In the case of apartment ownership, partition cannot be claimed.

The apartment and the undivided interest in the common areas and facilities, is treated as inheritable and transferable immovable property as such. You can, therefore, inherit, sell, mortgage, lease, gift, settle, exchange or deal with the property in such manner as deemed fit by you.

You will have the same rights, privileges, obligations, liabilities, legal proceedings, remedies, as any other immovable property. You can also bequeath the apartment and the undivided interest in the common areas and facilities.

The undivided interest in common areas and facilities is computed on the basis of the extent of plinth area available in the apartment in relation to the total plinth area available in the building.

Association of owners

In the event the building has five or more apartments or three or more floors, an Association or Society of Apartment Owners has to be registered under the Tamil Nadu Co-operative Societies Act, 1983 or the Tamil Nadu Societies Registrations Act, 1975.

The objects of the Association have to include maintenance of all common areas and facilities and the limited common areas and facilities and provide such amenities as may be necessary in the common interest of all the apartment owners.

If there are common profits, the same shall be distributed to Apartment owners.

The common expenses have to be shared by the Apartment owners as per the percentage of undivided interest of the Apartment owners in the common areas and facilities.

There is also a practice of collecting maintenance charges on the basis of ownership of number of Apartments concerned irrespective of the undivided interest held by the Apartment owners.

The common expenses will include the amounts determined to be payable as such by the Society or Association; expenses of administration, maintenance, repair or replacement of common areas and facilities.

As an apartment owner, you cannot undertake any work or act or put the apartment to any use which will jeopardize the soundness or safety of the property or reduce the value thereof or impair any easement or heriditament.

You will also require the permission of consent of all other apartment owners to add any material structure or undertake excavation or construct additional basement or cellar or do any other thing which will affect the interest of all the apartment owners.

The author is partner, Rank Associates, Advocates, Chennai.

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