In Co-operative housing society-related queries can answered through bye laws

IS PREMIUM APPLICABLE ON TRANSFER TO FAMILY MEMBER?
The first model bye-laws were issued by the authorities in the year 1984, second in the year 2001 and the third in the year 2010. Before the year 1984, there were no model bye-laws as such. In all these model bye-laws it is mentioned at difference places that the condition of payment of premium or transfer fee shall not apply on transfer of share and interest of the transferor in the capital/property of the society to the member of his family. Any resolution passed by the managing committee or the general body is not valid, if it is against the provisions of bye-laws or the law. Whether you can throw some light?

For the sale of a flat by a member in a society, NOC is not required except the NOC, if any, necessary under any other law or order etc. such as in case of the land given on lease by the State Government or the Government bodies such as CIDCO. But when the transferee has to apply to the society for the membership in lieu of the transferor, he/she has to submit the documents and to comply with the formalities as mentioned in the bye laws, including the payment of premium, i.e. commonly known as transfer charges, as decided by the general body, but subject to the ceiling of Rs.25000 as per the Order of State Government. But where the transfer is in favour of the family member of the transferor, the payment of this premium will not be payable despite the decision in M.G. or AGM/SGM and any such decision will be contrary to the provisions of the bye laws and hence not valid and not enforceable.

IS the BUILDER RESPONSIBLE FOR LEAKAGE REPAIRS?
I am residing in a 3 or 4 years old building in Ambernath. There are two wings, each having 16 flats. The terrace of both the wings is leaking since last 2 years badly. In the rainy season water also enter through the outside walls in the flats of both the wings. Society many times asked the builder for appropriate repairs in both the wings, but the builder has refused. What can society do and whether the builder is responsible for such construction.

In terms of Section 7 of MOFA 1963, the builder is responsible to rectify the defects in the construction within a period of 3 years from the date of the possession. Therefore, if the period of 3 years is not passed the society may proceed against the builder as per the provisions of the said Act, which is a criminal offence also. If a period of 3 years has already passed, the society is under obligation, as per the bye laws, to take care of the proper maintenance of the building and it has to repair and tackle the leakage problem in both wings of the building.

HOW CAN I GET MY SHARE OF A JOINTLY OWNED FLAT?
The flat is in the joint names of all 3 brothers, including me, but I am not staying with them in the flat. How I can get my share in the flat, as they are not interested in the sale of the same. If it goes for redevelopment whether they can do so without my consent and if I want to nominate for my 1/3rd share to my wife, please advise, can I nominate her?

Your both brothers may purchase your 1/3rd share from you by paying 1/3rd consideration of the present market value of the flat or the amount as may be agreed upon amongst all the 3 brothers and you may execute a conveyance deed in their favour to enable them to get the flat transferred in the records of the society in the joint names of both of them. So long you are the joint owner of the flat the flat cannot go for re-development without your consent. In other words, all the owners will have to agree for the same. You may also nominate your wife for your 1/3rd share in the flat by submitting the necessary forms, as per the bye-laws of the society, and have it registered with the society in her name.

what CAN SOCIETY LEVY for NON-OCCUPANCY CHARGES?
I have given the flat on lease/rent, but the society is charging Rs.1000 per month as non-occupancy charges; whereas the monthly maintenance charges are Rs.500. Please advise whether society can collect Rs.1000 per month or only 10% of monthly maintenance charges.

The controversy about the payment of non-occupancy charges has finally been set at rest by the Bombay High Court by upholding the Government Order dated 1st August 2001, whereby no society can charge more than 10% of monthly maintenance charges, excluding property tax, insurance, sinking fund, repair fund etc. towards non-occupancy charges. In your case non-occupancy charges will work out to Rs.50 only per month.

SOCIETY REFUSES TO TRANSFER FLAT IN JOINT NAMES
I have purchased a flat in Andheri (West) in April 2010 in the joint names with my husband. Our agreement has been registered in the joint names on payment of the required stamp duty and registration charges. But the managing committee of the society is not transferring the flat in the joint names. They are prepared to transfer it only in the name of the first holder. Please advise what should I do for the transfer of the flat in the joint names?

The society cannot refuse to transfer the flat in the joint names. In such a case the first named person will be enrolled as the member of the society and the other co-owner may get himself enrolled as an associate member by complying with the necessary formalities as per the bye laws so that in the absence of the member and on his/her authority, the associate member may attend the general body meetings and vote in the election. In case of the refusal of the society, you may take up the issue with the Dy. Registrar of the Societies.

WHAT ARE THE IMPLICATIONS OF FLAT NOMINATED IN MY FAVOUR?
My cousin (father's real sister's son) is a senior citizen and issue less divorcee. He stays alone in his ownership flat in a society. Since he was in need of money I gave him the same by way of FD in the joint names and the interest on the same is credited in his bank account. He has made a will in my favour in respect of the said flat and submitted the nomination papers along with copy of the will to the society. Do you foresee any problem which I may encounter in future for having the flat transferred in my name after the demise of my cousin.

I do not think there should be any problem if a will is properly executed by your cousin in your favour and after his demise, you will be the beneficial owner of the flat to the exclusion of other legal heirs. He can also nominate you in the records of the society but there is no need to attach a copy of the will with the nomination forms. In fact the contents of the will should not be normally disclosed. On his demise, nomination will get automatically cancelled because of the will. However you will have to obtain a probate of the will from the court of competent jurisdiction to avoid any problem in future with regard to your title to the flat.

I purchased two rooms of 120 carpet area each in June 2004. Since then I am paying the monthly rent for two rooms and two rent receipts bearing room serial number 1 and 1A are issued to me by the Landlord. I have heard that "No new tenancy created after 13.6.1996 shall be considered for calculation of FSI. The Landlord has initiated the process of inviting tenders from the developers for redevelopment of his old buildings. I would like to know whether the new clause mentioned in DCR 33(7) will affect me in getting two flats in the redeveloped building.

You will be entitled for only one room of 300 square feet on ownership basis after the redevelopment is done under Development Control Rules 33(7). The intention of the legislation is to provide houses on ownership of minimum 300 sq. ft. to tenants as per the records of Mumbai Housing Repair and Reconstruction Board as on 13.6.1996. In your case, you had only one room as on 13.6.1996 and therefore, you will be entitled for one room. If cases like you are allowed, each room may be divided into number of rooms by landlords by issuing different receipts and free housing would have been claimed by the tenants as well as the landowners. So under any circumstances you will not be entitled for two rooms.

Please explain the role, right and responsibility of chairman/ secretary/ committee members in society redevelopments. What is the m-20 bond? What precaution do the above persons have to take to carry out redevelopments smoothly? Is it necessary to appoint advocate/ solicitor/ architect? And if yes, what is the norm to judge them best for our society? Also inform what points to be cleared in advance with builder-developer.

The Chairman/ Secretary and Committee members are the front persons who discuss with the potential builders/developers and also the project Management consultants. They will be receiving the information and then explaining to the members to proceed with the redevelopment. The role, rights and responsibilities will have to be discharged by the office bearers and the committee members as per the Provisions of Maharashtra Co-operative Societies Act, 1960, Rules, 1961, Bye-laws and the Government Notification issued from time to time.
M-20 is the bond in the prescribed form to be signed by all the committee members within 45 days (45 days with effect from 14.1.2011 and earlier within 15 days) of assuming the office as the committee members. The copy of the bond has to be sent to the registrar immediately on executing the same. In case such bonds are not signed, it is deemed that the committee members have vacated their office and cannot continue to hold the office. Of course, to have the actual effect, some member of the society has to complain to the registrar or the registrar on his carry out the inspection of the records on his own account and determine whether the committee has failed to execute the bond within allowed time. It is up to the registrar to declare whether the committee has vacated the office due to failure to sign the bond and appoint an administrator in place of such committee. In the said bond, each committee member states that he has assumed the office and he will carry out the functions as per the provisions of the Act, Rules and Bye-laws and if any loss is incurred by the society, the same will be made good by him individually or jointly with other committee members. Thus the committee members will be accountable and responsible at the time of undertaking the redevelopment, if they have executed such bonds. These bonds has to be given on a stamp paper of Rs.100.
The Government has issued a direction under section 79A of the MCS Act, 1960 on 3.1.2009 regarding the procedure to be adopted during the redevelopment of the housing society. The same is available on the website of DNA and also government website. You can have a hard copy from any registrar office or from the Maharashtra Societies Welfare Association office. The most important precaution to be taken is the committee should be elected as per the Election rules and they should sign m-20 bonds within 15 days of assuming the office and also send to the registrar office.
The Project Management Consultants (PMC) who are experts in the entire redevelopment process inclusive of architects, civil engineers, structural engineers, chartered accountants and the advocates. They will guide the entire process professionally and this is mandatory as per the Government Guidelines. The society may initially pay say 5% to 10% of the agreed fees and the balance being the cost of the project may be recovered from the developer by the society and then paid to the PMC in stages as per their work completion.
The society should request the Architect of PMC to prepare a feasibility report considering the tentative plan taking into account the requirements of the members ( say with 10%, 20% , 30% extra area) and the tentative offers that may be offered by the developers. The Architect of the society should be in the records of BMC at the time of submission of the plans of redevelopment by the Developers. This will have better control on the amendment of the plans that builder may tend to do once he receives the development rights.
The tender should be invited by giving public notice and the tender documents should be divided into two parts one about the profile and other details of the company and the other is financial offer. Since the tentative plans are prepared and the offers are invited based on that, the area requirement of the members should be kept fixed and the variation should be only in the corpus, rent and the shifting charges, etc. The offers should be invited from the developers whose financial status and their background is acceptable to the society. The offers from unacceptable developers should not be opened nor should it be discussed. The various points to be discussed vary from society to society. Therefore, you are required to appoint a good solicitor or advocate who will look into minor things and advise you accordingly.

Our building has gone for redevelopment (pagdi system). I have following questions for you. When should we vacate our premises i.e. after obtaning the IOD or the CC?. To ensure that our interest are protected do we need to appoint one of the three mentioned below or all 3 are required?: 1) Lawyer - to ensure legal angle 2) Architect - to ensure that the building is constructed in accordance with the plan approved by the authorities and the approved plan takes care of the tenant interest. 3) Project Management Consultant who has handled redevlopment project in the past. Should the developer pay for hiring the above professionals? How do we keep a check to ensure that the project is completed on time? What interim deadlines to be set against the final target and how do we check if they have been achieved?

The tenants should vacate the premises, only after receiving the IOD and also entering into permanent Alternative Accommodation agreement with each of the tenants by the developer. The same should be properly stamped and registered.
It is advisable to appoint the architect and lawyers to protect your interest. Alternatively, you may appoint a PMC which consists of Architects, Advocates, Chartered Accountants, Structural Engineers, etc who will understand the various concerns of the tenants and also guide the tenants for smooth process of redevelopment.
Normally, before the selection of the developer or after short listing the developers, the society or the tenants association should engage the services of the professionals and pay at least 5% or 10% of total fees or a token amount to engage the services and the balance has to be recovered from the developer and then pay to the professionals.
You should ask the developer to give you various milestones, say time limit for obtaining the IOD, then CC for plinth and number of floors and completion of slabs, interior work etc Then your PMC or the committee should follow up and find out the reasons for the delay and which milestone has been missed, etc.
Normally, all the clauses are mentioned in the Development Agreement or the consent letters to be given by the tenants. It is very important to co-operate in the redevelopment process once you understand the financials and the delivery capacity of the developer. Engage the service of professionals who will be able to give better level of confidence amongst the tenants.

I am 66 years old. Upon making a full payment, a letter of allotment was given by the Builder in the month of July, 2010 for the purchase of flat in Andheri under one of his redevelopment projects which is believed to be completed after 2 years. It was specifically stated in the letter of LOA that the Builder shall execute the Sale agreement within six months from the date of LOA. Now, nearly more than nine months have elapsed and despite my written reminders, he does not budge from his rigid attitude nor replies to my mails.

You are fully protected under Maharashtra Ownership Flats Act, 1963. Under section 4 of the MOFA, on making 20% payment, the developer is required to execute an agreement for sale and also register the same after paying the appropriate stamp duty. In section 4A of MOFA, it is further clarified that if the developer fails to register the agreement, the same is deemed to have been registered.
I advise you to visit the builder office again and again and also to the society office bearers. Find out the various details which delay registering your agreement. Possibly, the same must have been offered as a security to the society or may be mortgaged with financial institutions or may be entered into agreement with others. If possible, you should get the possession of the flat as early as possible and then initiate any legal actions required. You may have to meet an expert who would guide in the matter to take a logical conclusion of the transaction.

Our society is going for re-development by Self-Development way. We are adopting combo method i.e Re-development & Self-development (funding from PE) for re-development. We would like to ask you whether directives of Government of Maharashtra U/s 79-A dt 3.1.2009 is applicable for this type of Re-development or not?

Whether it is self redevelopment or through the developer, the government directions under section 79A are applicable. In case of Self Redevelopment, you may engage the service of Contractor or the PE who will work as semi developer by funding the project. It is very important to understand the intention of the directions. The direction u/s 79A of the MCS Act wants the society to be transparent and due process should be adopted before and during the process of redevelopment. You may improve the transparency better than the circular and become a model during the self redevelopment. Your project management consultants will guide you about the same.