The Maharashtra Ownership Flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963

3. General liabilities of promoter.- (1) Notwithstanding anything in any other law, a promoter who intends to construct or constructs a block or building of flats, all or some of which are to be taken or are taken on ownership basis; shall in all transactions with persons intending to take or taking one or more of such flats, be liable to give or produce, or cause to be given or produced, the information and the documents hereinafter in this section mentioned.

            (2) A promoter, who constructs or intends to construct such block or building of flats, shall-

(a)        Make full and true disclosure of the nature of his title to the land on which the flats are constructed, or are to be constructed; such title to the land as aforesaid having been duty certified by an Attorney-at-Law, or by an Advocate of not less than three years standing, 1[and having been duty entered in the Property card or extract of Village Forms VI or VII and XII or any other relevant revenue record;]

(b)               make full and true disclosure of all encumbrances on such land including any right, title, interest or claim of any party in or over such land;

(c)                give inspection on seven days notice or demand, of the plans and specifications of the building built or to be built or to be built on the land such plans and specifications having been approved by the local authority which he is required so to do under any law for the time being in force;

(d)               disclose the nature of fixtures, fittings and amenities (including the provision for one or more lifts) provided or to be provided;

(e)                disclose on reasonable notice or demand if the promoter is himself the builder, the prescribed particulars as respects the design and the materials to be used in the construction of the building, and if the promoter is not himself the builder disclose, on such notice or demand, all agreements (and where there is no written agreement, the details of all agreements) entered into by him with the architects and contractors regarding the design, materials and construction of the building;

(f)                 specify in writing the date by which possession of the flat is to be handed over (and he shall hand over such possession accordingly);’

(g)                prepare and maintain a list of flats with their numbers already taken or agreed to be taken, and the names and addresses of the parties, and the price charged or agreed to be charged therefore, and the terms and conditions if any on which the flats are taken or agreed to be taken;

(h)                state in writing, the precise nature of the organization of persons to be constituted and to which title is to be passed, and the terms and conditions governing such organization of persons who have taken or are to take the flats;

(i)                  not allow persons to enter into possession until a completion certificate, where such certificate is required to be given under any law, is duly given by the local authority (and no person shall take possession of a flat until such completion certificate has been duly given by the local authority);

(j)                 make a full and true disclosure of all outgoings (including ground rent if any, municipal or other local taxes, taxes on income, water charges and electricity charges, revenue assessment, interest on any mortgage or other encumbrances if any);

(k)               make a full and true disclosure of such other information and document in such manner as may be prescribed; and give on demand true copies of such of the documents referred to in any of the clauses of this sub-section as may be prescribed at a reasonable charges therefore.

(l)                  display or keep all the documents, plans and specifications (or copies thereof) referred to in clauses (a), (b) and (c), at the site and permit inspection thereof to intending to take or taking one or more flats;

(m)              when the flats are advertised for sale, disclose inter alia in the advertisement the following particulars, namely:-

(1)   the extent of the carpet area of the flat including the area of the balconies which should be shown separately;

(2)   the price of the flat including the proportionate price of the common areas and facilities which should be shown separately, to be paid by the purchaser of flat; and the intervals at which the installments thereof may be paid;

(3)   the nature, extent and description of the common areas and facilities; and

(4)   the nature, extent and description of limited common areas and facilities, if any].

(n)                sell flat on the basis of the carpet area only:

       Provided that, the promoter may separately charge for the common areas and facilities in proportion of the carpet area of the flat.

       Explanation – For the purpose of this clause, the carpet area of the flat shall include the area of the balcony of such flat]

'There cannot be any discrimination among members'

'There cannot be any discrimination among members'

CAN THE SOCIETY PREVENT SHOP OWNERS FROM PARKING PERSONAL CARS?
In the AGM a resolution has been passed debarring me to park my personal car in the compound of the society, as I am a shop owner member, failing which a penalty of Rs.1000 will be charged. Is this resolution discriminatory?
–F. Sayani
Any resolution passed by even the general body, which is contrary to the provisions of bye laws of society, MCS Act and the Rules or the Government Notifications are not legally valid and binding on the members. There cannot be any discrimination amongst the members on the basis of the ownership of the flats or shops. The parking spaces have to be allotted by the society, as per the provisions of model bye-law No.78 to 85.

WHAT IS THE LIMIT FOR LEVYING NON OCCUPANCY CHARGES on A MEMBER?
I understand that the society can charge 10% of service charge as non occupancy charges from the members, who have given their flats on lease. Kindly suggest the method of arriving at this figure. We are currently charging 10% of our monthly maintenance, is this in order?
–Secretary of a Society
The society can charge non-occupancy charges as per the decision of the general body, but subject to a ceiling of 10% of the service charges, the break-up of which is given in model bye law No.68, which include the expenses running for the society, electricity charges, audit fee etc., but these charges do not include the property tax or the expenses on the maintenance or the repairs of the building of the society.

CAN SOCIETY DISALLOW PARKING FOR LESSEES AND LEVY FINES?

CAN SOCIETY DISALLOW PARKING FOR LESSEES AND LEVY FINES?
A flat, in the joint-names of myself and my wife at Mulund Mumbai, has been given on rent since May 2008 and the copy of the lease agreementhas been submitted to society and we have been paying the non-occupancy charges. My tenant was parking his two wheeler in the compound and the society, which was charging Rs.30 per month as parking charges from all the members and Rs.45 from the non-members, payable with the monthly charges. However on 15.6.2009 the Secretary has issued a circular that the non-members shall not be allowed to park their vehicles in the open space and in case of violation of this decision, they shall be fined Rs.360 per vehicle per month and these charges will be added in the maintenance bill from 1st June 2009 onwards. Is the managing committee of the society empowered to issue such a circular and to levy fine which is 12 times of the parking charges payable by the members per month? Please let me know the remedy available to me against the dictatorial and arbitrary decision of the managing committee.
–Haridas Sambhat, R.F.Daruwala
Parking slots, whether stilt or open, have to be allotted by the society as per the provisions of the bye-laws of the society (refer Model Bye Law No.78 to 85). There should not be any discrimination in the charges payable by the members and the lessees (who could also be enrolled as nominal members) for parking the vehicles allotted by the society. However, the society shall allot parking slots first to the members of the society as per the said bye laws and, thereafter, to the lessees. The decision as per the bye laws have to be taken in the general body meeting of the society and the managing committee is not competent to take such a decision. Even the general body meeting cannot take a decision in violation of the rules, regulations and bye-laws. Any violation may be taken up with the Dy. Registrar of the Co-operative Societies for the redressal of your grievance.

DOES RESIDING WITH FLAT OWNER MAKE ONE AN EXCLUSIVE HEIR?

DOES RESIDING WITH FLAT OWNER MAKE ONE AN EXCLUSIVE HEIR? 
My mother and brother were staying in a flat at Khar, Mumbai. My mother has expired last year, who has neither nominated anyone for this flat nor has left any will. The flat is in her name and my brother's name, who is forcing me to sign the papers for exclusive rights of the flat in his name. I have to stake the claim on the flat, being the eldest son of my parents. Can he sell the flat without my consent? What is my legal right as the legal heir of my late parents?
–Sunder Shahani
You are one of the Class-I legal heirs of your parents along with your brother, if no other legal heir has been left by them, you are entitled for half of the share in the property left by your parents. Your brother, by simply residing with your mother, will not have the exclusive right to the ownership of the flat, unless you relinquish your 50% title and interest therein by way of duly registered relinquishment deed or a gift deed. If you want to stake the claim of your share in the flat, you should not sign any papers for the transfer of the right, title and interest in the name of your brother and you should lodge your claim with the society and serve a notice to it not to transfer the flat in the name of your brother or anyone else without your prior written consent.

'There cannot be any discrimination among members'

CAN THE SOCIETY PREVENT SHOP OWNERS FROM PARKING PERSONAL CARS?
In the AGM a resolution has been passed debarring me to park my personal car in the compound of the society, as I am a shop owner member, failing which a penalty of Rs.1000 will be charged. Is this resolution discriminatory?
–F. Sayani
Any resolution passed by even the general body, which is contrary to the provisions of bye laws of society, MCS Act and the Rules or the Government Notifications are not legally valid and binding on the members. There cannot be any discrimination amongst the members on the basis of the ownership of the flats or shops. The parking spaces have to be allotted by the society, as per the provisions of model bye-law No.78 to 85.

CAN MORE AREA BE GIVEN IN REDEVELOPMENT AFTER SIGNING AGREEMENT?

CAN MORE AREA BE GIVEN IN REDEVELOPMENT AFTER SIGNING AGREEMENT?
Our building is in the process of redevelopment since December 2008 and the builder has given us 225 sft CA as per the agreement signed by him with existing tenants. But during the construction, the builder has offered extra area by including some area near window of the kitchen and living room in exchange of huge amount. Is it legal to include such area without any new agreement or can I include such area after the possession?
–Name withheld on request
The builder and the members will have to strictly adhere to the building plan sanctioned by the local authority i.e. Municipal Corporation Greater Mumbai and inclusion of any extra area within the constructed area in contravention of such plan would amount to unauthorized construction liable to be demolished by the Municipal Corporation. 
Therefore, neither the builder nor you can include such an area within the sanctioned built-up area, without having the revised building plan approved by the Municipal Corporation.



CAN A SOCIETY AUGMENT INCOME WITHOUT NOC FROM PLOT OWNERS?
Our society building is on a lease-hold plot for a term of 99 years with automatic renewal clause for another term of 99 years. But since last over 14 years the owners of the plot have not executed the Lease Agreement, though the draft has already been approved in the AGM of the society. Please let us know whether a lease for a term of 99 + 99 years, after execution of lease deed, is as good as full and free ownership of the land by the society. Whether the society can augment its dwindling financial resources by putting up hoardings, ATMs etc. within the compound in the absence of lease agreement and NOC from the plot owners.
–U.K.Hitesh
A lease-hold land shall always remain lease-hold irrespective of the term, unless it is converted into a free-hold and, therefore, the plot of your society shall remain as a lease-hold plot on the execution of the lease for a term of 99 years, with the automatic renewal clause for another term of 99 years. The society shall be bound by all the terms and conditions of the lease and breach of any term or condition may give rise to the cancellation of the lease and the right of re-entry to the plot owners. If there is a condition of prior permission of the owner of the land in the lease for putting up the hoarding or ATM in the open compound, NOC from the land owner will be necessary, in addition to the previous permission of the local authority, if provided in the rules. After obtaining all these permissions, hoarding or the ATM etc. may be permitted by the society with the approval of the general body and on the terms and conditions, as may be decided in the general body meeting of the society.

WHO HAS TO BEAR THE COST OF SOCIETY BUILDING TERRACE LEAKAGE?

WHO HAS TO BEAR THE COST OF SOCIETY BUILDING TERRACE LEAKAGE?
I stay along with my mother (a divorcee), elder brother and younger sister on the 4th floor of the building. During the monsoon, we have to face excessive leakage from the roof. On our complaint several times over the years, the society has not carried out any foolproof repairing work, except filling the cracks etc. by cement. We pay regular maintenance, but suffering due to society's negligence. What is the solution? Can we stop paying the maintenance charges or repair it and claim the amount from the society or where I can complain against the society?
–Deepak Gawas, 
A. Gomes, Satish Sood
As per the bye laws of the society it is the responsibility, of the society to carry out proper repair of the terrace to stop leakage and in case of the failure of the society to maintain the building in a good condition, you may take up the issue with the Dy.Registrar of the Societies; but you cannot retaliate by stopping the payment of the maintenance charges. Similarly you cannot claim the amount from the society, if you carry out the same without the prior written permission of the society.

IS A 'THUMB IMPRESSION WILL' CHANGING PROPERTY HEIRS ACCEPTABLE?

IS A 'THUMB IMPRESSION WILL' CHANGING PROPERTY HEIRS ACCEPTABLE?
We are two brothers and one sister. Our late parents had left a will in favour of all the three of us for equal shares in the property at Mumbai. We two brothers are living with our family out of town, but our married sister, along with her family was living with the aged parents and was taking care of them. After the death of our mother, our sister got a new will prepared in her favour as the only legal heir from our father, who was not in stable mind and could not sign and, therefore, she got his thumb impression on the new will and got it attested from a medical practitioner, who claimed that my father was in an unstable mind and could not sign and hence the thumb impression. She got this will notarized. What is the status of us two brothers, who trusted our sister and allowed her to look after our aged and unwell parents?
–Kanal Bansal
It is a case of two wills by your parents, one in favour of two brothers and the sister and another by your late father in the exclusive name of your sister. The question which is the valid will of your parents will be determined by the court in the facts and the circumstances and the evidence led before the court. Since the will produced by your sister is notarized, evidence of the notary whether your father had appeared before him and put the thumb impression on this will and the Register maintained by the notary to be produced in the court and also the testimony of the attesting medical practitioner that your father was not in a stable mind, which could be construed that he was not in a proper frame of mind to understand the contents of the will, will be material evidence to decide the issue.