Come March – the typical fiscal year end, most Apartment Complexes in India get busy with their annual elections – to elect a new Management Committee of the Apartment Owners’ Association or the RWA – Resident Welfare Association.
But many of us Apartment Owners / Apartment Residents have often resurfacing questions on what exactly is the definition of an Apartment Owners’ Association? What is its purpose? Its powers? Its duties? Its alignment with the legislation?
Here is an attempt at compiling answers to the above questions . This is in relevance to Apartment Owners’ Associations in Karnataka. For other states in India, information is most welcome!
The terms Association and Society in this post are used interchangeably.
How is an Apartment Owners’ Association (referred to as the ‘Association’ hereafter) formed in Bangalore?
The Association is formed by 7 or more owners in the Apartment Complex approaching the Registrar of Societies together and make an application that:
- Says that they desire to form themselves in to a society under Karnataka Societies Registration Act 1960.
- Encloses a memorandum with following details: desired name of the Association, aims and objectives of the association, and who in the association will be authorized to correspond with the Registrar of Societies (typically the President of the Association).
- Encloses the Bye-laws (rules and regulations) of the Association.
- Encloses the prescribed fee.
All applicants sign on the application, along with a witness’ signature and Voila! an Association is born.
Note: The Association can also be formed under The Karnataka Apartment Owners Association Act – 1972. Documents to be produced include the certified building plan of the building as-built and proof of the property being registered under the Registraton Act – 1908.
What are the various roles in the Association?
The Member: Every owner of the apartment complex is a member of the Association. In the case of joint ownership, the first person named in the title document is typically the member. No person who is not an owner of an apartment in the complex can be a member of the association.
The Associate Member: Any person, or persons, other than the owner, who is wholly residing, occupying or otherwise in lawful possession of any apartment in complex becomes an Associate member of the association. The Associate member pays maintenance charges to use common facilities, but does not have right to vote, unless authorized by the owner of the flat in writing.
The General Body (GB): All members of the association form the General Body – this is the supreme authority of the Association. The GB may alter, rescind, add, or amend the bye-laws, with the approval and consent of at least 13 members voting in general body. All members of the association are bound by the bye-laws. The decision of the GB is binding on all members.
The Management Committee (MC): A board of members elected by and from the GB, that represents the Association before all government and other official or non official bodies in all matters concerning the building and other rights and interests of the members. The MC is typically composed of a President, a Vice President, a Secretary, a Treasurer (together known as the Executive Committee) and 8 other members. The period of office of the elected members is typically 12 months. Such members are eligible for re-election for another term. The work of the MC is reviewed by the GB at the annual general body meeting or any other meeting.
As a member, what are my duties and rights?
Duties: Attend all General Body meetings, pay the dues decided by the General Body in a timely manner, abide by the Bye-Laws.
Rights: Vote in the elections – each member, irrespective of the apartment type & size has a single vote at Annual General Body Meeting or in any other official meeting, elections, of the association. Should a member have ownership of more than one apartment, the number of votes shall be in proportion to the number of apartments owned. The member has a right to authorize a proxy to vote in his absence.
Each member of the association has the right to inspect all records, books of accounts of the association with 3 days prior notice to the Management Committee.
What are the duties of the Management Committee?
- Organize, social, cultural and recreational facilities and amenities for the resident, supervise the same and maintain or organize the maintenance of all common areas and amenities thereof.
- Assign the responsibilities for carrying out day to day administration of building and affairs of association to the employees appointed for such purpose
- Represent the members of the Association, in the matter relating to the building or arising in relation to it, with the aim of protecting their rights and interest
- Encourage and promote religious, cultural and educational activities and promote charitable feelings amongst members.
- Join hand with any other association for common and mutual benefits.
- Open and maintain one or more bank Accounts of the association in the name of the association with any nationalized bank as decided by the committee.
- Ensure that the income monies received by the association are applied in promoting the objectives of the association and are not available for distribution on any account amongst the members.
- Keep in custody of all original documents connected to the land and building, licences issued by any authorities in relation of the said building or land
What are the duties and powers of the President, Secretary and Treasurer?
President
- The president presides over all the committee meetings and has general control over all the affairs of the association. He/she is the person who can sue with the consent of the general body or defend any legal action against the association on behalf of the association, after taking appropriate legal advice.
- All legal proceedings are instituted and continued or defended by the president. He/she signs all documents and papers and vakalats relating thereto in the name and on behalf of the association.
- The president enters into contracts approved or delegated by the committee.
- In the absence of the president, for any reason whatsoever, the committee may authorize the secretary or the treasurer to sign all such documents, papers etc for and on behalf of the association.
Secretary
The secretary is responsible for the executive administration of the association subject to the control of the committee.
Treasurer
- The treasure has custody of all properties of the association including the funds of the association.
- Heshe is empowered to operate the bank accounts of the association jointly, but not severally, with president, or secretary. Any such account operation is only for bonafide and authorized purpose of the association
- The treasurer maintains a petty cash account for meeting the immediate petty expenses.
On the question of alignment of the Apartment Owners’ Association with the Courts of Law, here is a good article from The Hindu, albeit a bit dated. The takeaway from this article: “it is important that the association be held together by close bonds of trust and goodwill. ”
So, go ahead! Elect your new Association Management Committee, and let them assume office with the re-assuring knowledge that by their side is you, and is Apartment Adda*! 
* Apartment Adda helps Apartment Owners’ Associations / RWAs achieve their goals by providing efficient communication and management tools online. For more information, please do visit us at www.ApartmentAdda.com
Note: The above article has been compiled from Karnataka Societies Registration Act and typical Bye-Laws of Apartment Owners’ Associations. Please be aware that each Association has its own set of bye-laws and there are chances that the definitions & duties in your Association is different from those laid out above. You are advised to study the bye-laws of your own association for an accurate understanding of your duties and rights.
Tags: Apartment owners, Association, guide
@BEENA KURIEN – As already explained in an earlier QnA above by “San”, the association has no legal right to cut water, sewerage or electricity to your apartment – if they do that you can move to court over that. They can only start legal proceedings against you for the non-payment.
Pls required help and guidance in registration of our owners association.
Ours is a 14 flat group house. Recently the Municipal authorities have demolished 2 flats in cellar as un authorised construction. The builder and the flat loosers have still undivided share in the building. They want to construct the lost flats on the terrce as there is still scope for construction for another floor on the terrce technically . Now they have applied for plan approvals..Now my queston is whether the applicants or the builder requires to get permission from the existing owners? The terrace rights have been already given to the builder at the time of registration. Still a fresh consent reqired or not? As now nobody will give in writing..
Thanks to Citizen Matters which lead me to this page. Firstly I would like to make it clear that “Apartment” and “flat” have two distinctly different defenitions. Apartment can be used only for residential use where Flats can be used for residence and commercial activities.
Monthly Maintenance charges for Apartment complexes are decided by Welfare Associations. There are various methods adopted.Per sq ft, per apartment irrespective of sizes, or just the bully in the apartment complex make others to pay what he decide.
First we must look at the budgetary provisions. Security,house keeping of common areas,BWSSB charges, Borewell, Electricity charges of common areas like lighting, elevators, pumps, DG sets,plumbing work in common area, Electrical maintenance of common area, Gym and club, swimming pool, childrens play area etc.
None of these expenses can be on sq ft basis, A has a 1000 sq ft flat and the B has 1800 sq ft. On sq ft basis the A will get less security,less water, less lighting, small portion of the pool, less time in gym, and if he lives on the 7th floor of 12 level building, should he get down from the elevator at level three and walk up the stair case. As per sq feet basis his children should be allowed to play any out door game for less time than the children of B.
Same goes with longterm maintenance. Painting external area of the blocks,swimming pool change room, Club, Office must be done from the “building fund” and Mr.A argues and stall the whole process saying since the external area of his apartment is smaller than Mr.B.So he wants to subscribe a lesser amount than Mr.B. What he forget is that “long term maintenance” is not only painting but lot of other repairs and replacements.
People who does not understand what is community living, and the ettiquette and manners to be adhered normally rake up such issues and complicate harmonious living. It is just a shame that we as human beings can not learn from fish,goats or even cattle
what are the rules and regulations that are to to embedded after owners welfare asociation is framed for good helthyness of the aprtment .
hi what documents should the association getfrom builder at the time of taking over
A question, Can the builder refuse to handover maintenance of the apartment complex to a legally formed and registered association. The general body has passed a resolution authorising the association to take over maintenance, but the builder refuses to handover, his contention being that he has some flats still unsold and will hand over only after all apartments are sold.
we want to form our Association under The Karnataka Apartment Owners Association Act – 1972. what are the document requirement from the builder side and association, also give us address where to register the association as per 1972 act.
Sanjay: You will find the answers in the section of the Post that mentions the The Karnataka Apartment Owners Association Act – 1972. If you require legal help with registering the association, please drop a request at: http://apartmentadda.com/home/contactUsPage.php. A competent Legal Adviser will get in touch with you.
Shantanu: Assuming that the Builder also had his share of votes (for the flats he still owns) in the General Body, but the majority vote of the GB has gone in favor of Association taking over the maintenance, his argument sounds shaky.
Prasad: Apart from all original documents related to the Building (various certificates, main khata, papers for common assets etc.), you may require documents that are specific to the property – e.g., any pending approval requests for deviations, receipts for cauvery connection payment etc. A property lawyer could be a good idea to guide through the Handover process.
Beena: In case of non-payment of Maintenance Fee, Association can only withdraw services that are financed with the Maintenance Fee collected from Residents.
Hi,
I understand that the Apartment can be registered under one of these two acts:
Karnataka Societies Registration Act 1960.
The Karnataka Apartment Owners Association Act – 1972.
I want to know, which of these two is better?
Reistering under Karnataka Societies Registration Act 1960 is easy, but does The Karnataka Apartment Owners Association Act – 1972 give any legal advantage over the other act.
Thanks,
Ganesh
@Ganesh
In my perception, the points posed bring to surface once again the widely prevailing misconceptions, rather a serious misunderstanding, of the governing statutory provisions and regulations. For an insightful understanding and incisive appreciation if the intricacies of the matter, one may go through the following material available in public domain:
The 4 published articles – (2003) 3MLJ PG.5 (journal), (2003)(4) KAR. L.J.Pg.1, (2005)(3) KAR.L.J. pg.17, (2005)(5)kar.l.j.pg.1 (journal)
VSWAMINATHAN
@Ganesh
This is a follow on of my post -February 10, 2010 at 3:46 pm
I. The special enactment – the Karnataka Apartment Ownership Act (the Act) lays down the regulations applicable to the property named, ‘apartments’. As is mandated by the Act in no unmistakable terms, the ‘owners’ association’ is required to be formed, and registered with the Registrar of Co-operative Societies, being the competent authority appointed under – the Karnataka Co-operative Societies Act. So that, the ‘association’ as constituted by the purchasers can have the status of a ‘legal entity’, thereby enjoy its attendant advantages and benefits. That being the legal position, the purchasers of ‘apartments’ in a building forming and having registered themselves as a ‘society’ under the Karnataka Societies Registration Act (as wrongly suggested / canvassed unwittingly in certain quarters) is a non-starter. This aspect has been elaborated in my Post – August 11, 2009 at 10:27 am.
II. More importantly, it is only after the formation and registration of such ‘association’ as aforesaid, that all the individual purchasers of the apartments in a building, joining in as a body, come to acquire the legal status of ‘co-owners’ of the property; in particular, of the ‘Common areas and facilities’ (within its special meaning as per the Act).
The so-called ‘Common areas and facilities’, no doubt, form part and parcel of ‘the property’. But, what the ‘seller’ conveys (or transfers – not ‘sells’ in its profound sense) to each one of the ‘purchasers’, is only an ‘undivided interest’ therein. That obviously is the reason why, in several contexts in the Act, – as also in the Model (format of the) Deed as found in the published text book, – to denote the document to be executed by the ‘seller’, the nomenclature employed, rightly so, is – ‘Deed of Apartment’, or ‘DEED OF (TRANSFER OF) Apartment’- NOT ‘sale deed’ (or any other inappropriate term such as, ‘deed of ABSOLUTE sale’ (as often found used, wrongly so, by ‘lawyers’ drafting the document).
III. The referred ‘undivided interest’ in the ‘Common areas and facilities’ is, as spelt out in the Act, required to be conveyed to each individual purchaser, at the ‘percentage specified and established in the Declaration’. In this context, the Declaration referred to is the document to be executed and registered by the ‘seller’ in the prescribed Form ‘A’, in accordance with the Act. The point to be made a special note of is that, the ‘seller’ is duty bound to comply with the crucial requirement of execution and registration of the Declaration in Form ‘A’. Especially, that should be done necessarily at a point in time before he proceeds to ‘sell’ any of the ‘apartments’ in a building. Even so, for practical purposes, the percentage of ‘undivided interest’ to be sold to each one of the purchasers shall have to be necessarily determined and specified even in the initial stage of entering into any ‘agreement to sell’.
In the normal course of events, such common use and enjoyment would mean:
(i) In the initial stage, – by everyone of the purchasers, as a member of the body of co-purchasers, in common with all of the other co-purchasers; AND
(ii) at the next stage, being the final one, that is -when after all apartments have been sold and conveyed to the individual purchasers, and also after completion of the legal formality of – formation of the “owners’ association” and its registration,- by everyone of the co-owners/co-members of the said Association, – essentially in common with all of the other co-owners/co-members.
To sum-up:
It needs to be appreciated that, the foregoing legal requirements are not just empty formalities, left open to anyone concerned, either to opt for, or out, according to one’s own choice / convenience. On the contrary, they entail significantly material and substantially crucial legal consequences, and therefore, are required to be strictly complied with both in letter and spirit.
KEY NOTE: The foregoing comments may be seen to be of relevance to, – besides bringing to focus certain points of view as covered in, – San’s Reply to an earlier Post – @Ranjita March 17, 2009 at 8:08 am.
vswaminathan
Ref. my last POST – February 16, 2010 at 7:37 am.
In place of the words -”In the normal course of events, such common use and enjoyment would mean:” – ARE TO BE READ:
The Common Areas and Facilities are meant for use and enjoyment, in common,:
vswaminathan
1. In my previous Posts @Ganesh are set out my viewpoints on a few of the legal requirements / formalities as per the law on ‘Apartments’, which are vital to the buyers’ lawful rights and interests.
2. The points made have specific reference to what the law provides with regard to the two essential formalities requiring compliance by any Builder of Apartment Buildings in the State of Karnataka in general, in Bangalore in particular.
3. In San’s Reply of March 17, 2009 at 4:26 pm a reference has been made to the article – @ http://www.mysooru.com/article1.html. In that article, its writer has made a mention of CREDAI- Karnataka’s Code of Ethics & Conduct. It has been observed that, one of the mandates to the Members as laid down in the said Code, in terms, prima facie contradicts the correct position under the law.
In paragraph 5 therein, the relevant portion reads:
” 5) MAINTENANCE AND FORMATION OF ASSOCIATION
A Member:
5.1) Shall form the Association of Owners and get the Deed of declaration registered within a reasonable period from the date of completion of construction or from the date of last registration of UDI/Unit and …. ”
The above mandatory rule as framed by CREDAI is not reconcilable at all with what the law clearly provides with regard to the timing / time limit for the Builder to have the Declaration (Form ‘A’) registered.
4. As may be readily seen, even on a plain but straightforward reading and understanding of the relevant sections of the Apartment Act and the Rules there under, as also the contents of the prescribed Form ‘A’, the correct legal position is more than abundantly clear, which is as under:
A) Execution and Registration of the Deed of Declaration in Form ‘A’ under the Indian Registration Act is the first stage for compliance.
Importantly, that has to necessarily precede the second crucial stage namely, – the Execution and Registration of the Deed of Conveyance by the Builder, of any one or more of the Units (Apartments) in a building; that necessarily could be only after the ‘construction’ has been completed in every sense.
B) The Formation and Registration of the ‘Owners’ Association’ under the Act (read with /under the Co-operative Societies Act) is the third / last stage.
The mandate of CREDAI referred above is, to put it rather mildly, and in an inoffensive manner of speaking, tantamount to a reversal of the normal logical order i.e.- PUT THE HORSE BEFORE THE CART.
5. According to my information, however, the procedure followed as a matter of practice, besides by other builders, by the member builders of CREDAI is not uniform but is varied. So much so, there is an unadulterated chaos and confusion in the matter of compliance with the law, thereby impairing / adversely impacting the valuable rights and interests of the purchasers’ community as conferred by the law.
6. I have on a feedback Note sent through its website stressed that with a view to doing full justice to its own laudable objectives, more so for saving the purchasers from the currently obtaining disastrous consequences recklessly meted out to them, it is imperative that CREDAI should come out with a suitable modification and clarification of the Code, for the Builders to follow at least from now on. Also that, the matter is of such a serious nature that it, in all fairness, deserves top priority for effective steps being taken on a war footing by CREDAI. So far as I know, CREDAI seems to have taken no action in the matter thus far.
7. No doubt, the above is one of the several aspects, which hopefully would require to be duly taken care of in the new regulatory central law in the offing. Nonetheless, even under the existing law the correct position is, in my perception, more than clear. It is, therefore, obligatory on the part of CREDAI to volunteer and come forward with the necessary modification and / or clarification of the existing mandate in its Code; may be, if it considers necessary, after taking legal opinion from its own Advisers.
V.Swaminathan
We have a swimming pool in our clubhouse. The clubhouse is open only to members, not to general public. I wanted to know what are the rules and regulations (as per law) required for running this pool. Like, are we required to have a life guard on duty? Are there are warnings etc the association must put up (required by law). Pls let me know. Thanks
Dear sir
In our apartment one of the owner is not paying corpus fund ,despite several reminders.how shall we go about this.what action can be taken?
1)I bought an apartment recently having 14 apartments. 6 shared by land owner and 8 by builder who sold all 8. Welfare assocaition was registered starting with 7 owners purchased from builders. Land owner sold 2 and has 4 apartments and not cooperating, not joining association. What are the legal rights of association. three more owners are willing to join.
2) In a sharing agreement betwen land owner and builder, the common facilities like parking and terrace are writtten as shared in the ratio 48:52 same as apartment area sharing. Is it legal? common areas belong to all 14??
3)though only 14 car parkings are availble and marked, land owner has forcibly occupied 8 as per area sharing as against 6 apartments. Builder did not hand over parking proberly marked. Big problem. what action??
4)In the sharing agreemnet , builder has given no objection for commercial shop in the front without site plan approval. All residents not informed are against. Bigger problem. What action??
5) all original documents of land etc with land owner and not handing over to assocoation. what action can be taken.
This is in reply to Anuj’s comments that the Apartment Owners Association cannot cut water supply, but can only take legal action. In the Apartment I am staying in Anjanapura, Bangalore, not only did the Association cut the water supply, they also had some tough guys standing by to take care of any problems, some months back.
The President, Secretary, and the Treasurer behave as if they own the whole place, and pass arbitrary laws. They do not hold regular meetings, and even when they do, they invite only a chosen few.
The tenants are treated with scant regard. It is high time that such office bearers who misuse their position are shown their true place, which is to look after the welfare of the owners and residents, and not try to lord it over everyone. One wonders where one can have an effective redressal for these problems and ensure that these self appointed rulers are set right.