An FAQ on apartment owners association
Photo: N. Sridharan
Issues of maintenance, accounts, errant owners and tenants continue to confront the association. How to address them? answers R.L.Narayanan
Know your way: Apartment associations need to understand issues before tackling them.
Apartment owners often face doubts about apartment associations, their functions and powers. Issues of maintenance, accounts and errant owners and tenants daunt them. How to allot car parking? Can amenities be terminated? Such queries recur and require clarification. Some of the important issues are compiled here and addressed in the form of Frequently Asked Questions (FAQ).
How is a Society formed and registered?
To form a Society, a minimum of seven members are required. A memorandum has to be made. The memorandum will provide for the name of the Society, the objects , names and addresses and occupation of the members of the committee. In addition, the bye-laws or rules regulating the conduct of the affairs of the Society also have to be made. The said memorandum and bye-laws have to be filed with the Registrar of Societies concerned by a member of the committee of the Society or any other person duly authorised by the Society. If the memorandum and bye-laws are in accordance with the legal requirements, then the same can be registered. The memorandum and bye-laws have to be printed or typewritten and have to be signed by the members. The registration charges are nominal.
Can the name of a Society be changed? Can amendments be made to memorandum and bye-laws?
It is possible to change the name where the name is identical with any other society or if the name causes confusion by resembling the name of any other society. In the change of name, other matters or affairs relating to the society will not be affected. Insofar as memorandum and articles are concerned, the same can be amended by a special resolution. If the Registrar is of the view that the amendments can be accepted, the amendments can be registered and certified by the Registrar. The amendments would be allowed, if it is for the purpose of carrying on the administration in a better manner or for achieving the objects or for amalgamation with any other society or for a division of one or more societies.
What is meant by “Common Areas and Facilities”?
“Common Area” would mean the land on which the building is located - foundations, columns, girders, beams, supports, main walls, roofs, halls, corridors, lobbies, stairs, stairways, terrace, compound walls, fire escapes, wells, sumps, entrances, exits, basements, cellars, yards, gardens, parking areas, storage spaces, premises for lodging of caretakers or persons employed for maintenance of property. It would also include water supply, sewerage and drainage connections, installation of central services such as power, light, gas, hot and cold water provisions, heating, refrigeration, air-conditioning, incineration, elevators, tanks, pumps, motors, common amenities like fans, compressors, ducts and others of common use, fire detection, alarm facilities and all others meant for common use.
What are the common expenses for apartment complex?
“Common expenses” would mean expenses of administration, maintenance, repair or replacement of common areas and facilities; all legal expenses incurred by the Society for enforcement of lawful claims of the apartment owners; expenses allocated as such by the bye-laws or by statute; expenses so reserved by the Society and all sums lawfully assist against the apartment owners by the Society.
How is the levy of maintenance charges to be calculated?
The maintenance charges and expenses have to be calculated on the basis of undivided percentage of interest of the apartment owners in the common areas and facilities. There is also a practice of levying the charges on the basis of a number of units owned even though the units may be of different sizes. The acceptance by a owner for payment on the basis of a number of units owned regardless of size, will not prevent the owner concerned to claim that the owner should be charged on the basis of the undivided interest held by such owner. The charges are payable by a tenant or occupant, if the owner is not in occupation of the premises.
Can amenities be cut or terminated, if a particular apartment owner does not pay the maintenance charges?
The Society cannot cut or terminate any facility enjoyed by the owner. The Society can only initiate legal proceedings for recovery of the outstandings and can also seek other reliefs as may be permissible under the law.
How can proceedings be initiated in matters relating to unregistered Associations?
In such matters, the persons claiming relief should figure individually as Plaintiffs (Claimants). The persons against whom the reliefs are claimed should be shown as Defendants. All individual members of the Association regardless of the size of the members shall figure either as Plaintiffs or as Defendants.
Which is the Forum for instituting the proceedings?
The proceedings have to be instituted before a Civil Court or before the Arbitrator as provided by the bye-laws. The Society has to be represented by the officer concerned, who is authorised to institute or defend proceedings as provided by the bye-laws. Individual members, though being members of the Society, can be shown as Defendants for the purposes of obtaining suitable relief. In cases where certain actions may amount to or involve offences, criminal complaints or proceedings can be initiated against the persons concerned.
If the affairs of the Society are carried in a whimsical or a motivated manner, what is the procedure for obtaining relief?
In such cases also, suitable proceedings have to be initiated before a Court or the Arbitrator concerned, for obtaining proper relief.
How is car park allotment to be made?
As parking area falls under common amenities and facilities, this has to be made on the basis of undivided percentage holdings. In practice, allotment is made as covered car park, open car park, etc for each of the apartment owners, even though owner concerned may not have immediate use for the same. There are many cases where the car park is inadequate. In such cases, it has to be seen as to whether it is part of the agreement or otherwise to work out a suitable relief.
Can certain facilities be restricted to certain owners only?
This can be done. In many apartments, special or specified parking area, terrace gardens, private gardens and other facilities or amenities can be designated as reserved for certain apartment or apartments to the exclusion of all other apartment or apartments.
Is Deed of Apartment prescribed under the Tamil Nadu Apartment Ownership Act, 1994 being registered?
Even though the Act provides for registration of Deed of Apartment, this is not being registered as the authority has not been constituted and the practice is also not followed till date.
Is it possible to register a Society under the Tamil Nadu Apartment Ownership Act, 1994?
There is no provision for registering an apartment under the Tamil Nadu Apartment Ownership Act, 1994. It is sufficient if the apartment is registered under the Tamil Nadu Co-operative Societies Act, 1983 or under the Tamil Nadu Societies Registration Act, 1975. The provisions applicable to Societies are also applicable to Associations of owners.
R.L. Narayanan, partner, RANK Associates, Advocates, Chennai.
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