The apartment law you must know

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When an apartment is built and it is eventually occupied, a few questions do the rounds within the new community. There are always common issues to be coordinated with the builder regarding teething troubles, maintenance, handover and several such issues.

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Normally, a group of owners comes together to coordinate on behalf of the community. For a period, I was one of them in our large apartment located near Marathahalli in Bengaluru. Among the various challenges we faced, one of the toughest questions to answer was on registering the owner’s association.

Today, if a community is lucky, the builder registers the association. If that does not happen, the owners get together and do something about it themselves with the help of a lawyer. We spent years on this problem. Most lawyers in Bengaluru we approached recommend the registration of the owners association under the Karnataka Societies Act.

However, it turns out that the societies act is not the right law to register an apartment association. Section 3 of the societies act defines the various types of societies that can be registered under the act and none of them meet the definition of an apartment association.

We determined that the Karnataka Apartment Ownership Act is the correct law. In fact, our agreement for sale with builder and registered sale deed contained copious references to the Apartment Ownership Act. However, the registration process seemed so complex and convoluted that it seemed like a very daunting task.

As part of this process, I did a lot of research and reading and received inputs from several people who had looked into this issue themselves. What I learnt surprised and shocked me and those are briefly summarised in the rest of this article.

As stated earlier, the societies act is the wrong law for registering an association. Take the case of this apartment complex on Sarjapur road which is now in the midst of a legal battle with the builder.

The builder had the apartment association registered under the societies act. Subsequently, the residents discovered that the builder was carving out 20,000 sq. ft. from the original bounds of their property for a commercial venture. The matter is now in court where the builder now contended that the owner’s association was not qualified to fight the case since it was formed under the societies act and not the Karnataka Apartment Ownership Act (KAOA) as required.

It turns out that if the correct process as required by the law is followed, KAOA registration will flow smoothly. An apartment as defined in Karnataka is a property of a residential nature where the owner owns the apartment and holds a percentage share in the land and common areas and amenities. There are two laws that govern this process in Karnataka.

One is the Karnataka Ownership Flats Act (KOFA) and the other is the KAOA. KOFA regulates the process of promotion, construction, sale, management and transfer of the apartment. KAOA was written with the view to make apartments heritable, transferable and mortgageable and to address aspects related to management of the property.

 

In Karnataka, there are three types of apartment communities that can be formed. A promoter can float a company or cooperative society under KOFA. These are two options. Alternatively, the third option envisaged in KOFA is for the builder/promoter to form an association of owners under the KAOA. Forming a company is a pretty rare approach. In a cooperative society setup, the building, common area and land is vested with the cooperative society and the allottees of the flat are deemed as “tenants”.

Please note that the word tenant in this context has a more expansive legal meaning as compared to regular usage. The member has all rights to occupy his or her flat, but does not own an undivided share as is commonly understood since all common property is vested with the society. Naturally, this raises issues when securing a mortgage for an individual unit – how does a bank give mortgage for something you do not strictly own?

So the only solution is for all members to take loan from the same bank in which case the risk for the lender goes up substantially. It is to remedy this situation that the KAOA was passed. (Actually, Karnataka adapted Maharashtra’s laws. Maharashtra has been a pioneer of apartment laws in India).

Key features of KAOA

In India, the sale and purchase of immovable property is governed by the Transfer of Property act of 1882. The 1882 act does not cover the concept of an apartment along with its undivided share in land and common areas. So a fundamental step that KAOA does is that it equates the purchase of an apartment with its proportional undivided share as equivalent to an immovable property bought under the transfer of property act.

The purchaser is the absolute owner with a clear title to the apartment and its proportional undivided share.

How is the clear title ensured?

The KAOA requires the builder/promoter/owner of the apartment to execute a document known as the Deed of Declaration. The Deed of Declaration (DoD) is a document that describes the property, i.e., the building, all of its apartments, the common facilities such as lifts, generators, fire fighting equipment, pool, gym etc., along with the ownership scheme giving the percentage share of each apartment. Along with the DoD, copies of plan approvals from local authorities and bye-laws of the association of owners is to be registered.

Now, when individual apartment owners go to register their Deed of Apartment to complete their sale, the KAOA requires that the Deed of Apartment refers to the DoD (along with information regarding registration of the DoD, such as registration number, date, sub registrar’s office etc.) so that the ownership scheme is fully traceable and the title clear.

There are also special requirements on the Registrars and Sub-Registrars to maintain this information in an organised fashion. In addition to the Deed of Apartment, the purchasers also execute a Declaration known as Form–B where they agree to abide by the rules of the KAOA.

Once the apartments are sold and registered, the builder is to approach the Registrar of Cooperative Societies (identified as the competent authority by KAOA) with copies of the Registered DoD, bye-laws, Deeds of Apartment, and Form-B declarations to register the association.

If there are unsold apartments, the builder/promoter is allowed to represent those unsold apartments. This process completes the formation of the association. The bye-laws registered with the DoD become the by-laws of the association and everything is set for smooth operation.

Office bearers and duties

The KAOA also has additional provisions regarding duties of office bearers, process of voting, regarding charges and encumbrances against individual apartments, and even on steps to be taken in the event of destruction of the property – say by fire or earthquake.

For the local governments such as BBMP, there are additional hidden gems. The KAOA says that each apartment owner is liable to pay local taxes for his or her apartment and proportional undivided share. So that resolves the question of who pays property tax on the common areas. That is not to say the KAOA is perfect. It is a 40 year old law to which many improvements can be made. However, the key point is that a very logical framework already exists.

Reality

Unfortunately, the ground reality today is that very few builders do things the right way. Most apartments have associations registered under the societies act. Banks continue to give mortgages despite the fact that clear title is not passed on to the buyers due to the manner in which transactions are conducted. The registrars and sub-registrars continue to register any document that purports to be an apartment sale deed without paying heed to the requirements placed on them by the KAOA.

The government, as per their answers in the Karnataka information commission to an RTI request filed by a well known RTI activist C N Kumar was not even sure which department is responsible for a law such as the KOFA (and by extension, the KAOA). A copy of the RTI response is with Citizen Matters.

Urban Development Department order dated 08/03/2012 appointing BBMP and BDA officers Click here

 

Urban Development Department order dated 08/03/2012 appointing Sub-Registrars Click here

 

It turns out the Urban Development Department is. Could we hope that the state will begin to ensure adherence to the law, educate its citizens as well as builders and maybe even amend these acts soon to make them modern and more functional? Can buyers get together and force the builders to do things in the right way?

Apartment sale process including formation 

Step No.

Document

Comment

1

Agreement of Sale: Finalise an apartment purchase, pay an advance and sign an Agreement of Sale, which is to be registered under registration act of 1908.

Under KOFA 1972, section 3, subsection 2(h), and KOFA Rules 1975, section 5(d) the builder/promoter is obligated to state the “precise nature of the organization to be constituted of the persons who have taken or are to take the flats or apartments”.

2

Deed of Declaration: At some point, while construction is in progress and before a final deed of apartment is executed and registered; the builder/promoter is to register a document known as Deed of Declaration under registration act 1908.

The Deed of Declaration is to be provided in a format known as Form A, which is described in KAOA Rules 1974. The DoD will detail the extent of property, all the common areas, limited common areas and facilities, description of buildings and all apartments. It will also specify the percentage undivided ownership share for each apartment. Along with Form A, a copy of the by-laws of the association and a set of floor plans of the buildings are to be appended. It has to be certified by an architect that the plans are accurate as per what is approved by the local body and what has been built. All registration offices are obligated to keep a book called “Register of Declarations and Deeds of Apartments under KAOA 1972” and an Index thereto

3

Deed of Apartment: Conveyance of the apartment is done by executing a Deed of Apartment

Under section 12(a) of the KAOA, 1972, the Deed of Apartment is to include the book, page and date of executing the Deed of Declaration and the date and serial number of its registration.

4

Inform the competent authority: To finish the formation of the association, true copies of the Deed of Declaration, by-laws and Deeds of Apartment have to be filed in the office of the competent authority – identified by the act as the registrar of cooperative societies,

The KAOA rules require that true copies of all amendments to the DoD, by-laws etc. should also be filed in the office of the competent authority. A copy of a Deed of Apartment is to be filed within 30 days of registration.

5

Declaration under Form B: A declaration by the owner(s) of each apartment under Form B is also to be executed and submitted to the competent authority

The declaration under Form-B is a commitment by the owners(s) that they will comply with the KAOA, and that any person who purchases or inherits the apartment subsequently from them will also do so.

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About Sanjay Vijayaraghavan 7 Articles
Sanjay is a mechanical engineer working for one of the city's MNC firms. He lives in BBMP ward 85 (Doddanekkundi).

20 Comments

  1. Association form under 1972 Act and office bearer kept it secretly. after making the rules and regulation within how many months they have to circulate to other members.
    Our association has total number flat is 128 out of that 62 is for builder rest for land owner. Builder has sold all his flats and ran away as their were some issue with them and two years passed.
    Now can association form without builder and land owner (as the they have more flats)?
    Can land owner rent their flats (they were doing as they are local)?
    this an ‘A’ khata property without OC and CC. STP is also made by builder swimming pool is not active some fish office bearer cultivating so that mosquito will no breed.

  2. It’s been great to know about this.After reading this article i have gain some idea on KAOA Billing Act. Thanks for highlighting this important issue on your article here.really informative…

  3. Dear Sir/ Madam,
    The housing association I live in is registered under KSRA and has issued AMC (Annual Maintenance Charge) demand without holding an AGM. When asked the Managing Committee have responded with “An EGM or AGM decides the AMC applicable for the year and until another AGM or EGM revises it , the previously decided AMC remains valid”.and are using this as justification to carryover and use previous year’s AMC this year. They are also threatening to levy a penalty on anyone who does not pay within 25 days of the demand. Is the association’s. demand for AMC without holding an AGM, without presenting the accounts for previous year and without presenting the budget for this year valid and legal?

  4. My question is, if the owners of a gated community have registered association under Societies Act, which has been accepted by Builders by exchanging correspondence with the said association in matters related to the said premises, transferred major portion of corpus fund to the association and also written to water board to transfer the name on the bill from builder to society. Now the society wants to take legal steps to recover balance corpus fund and other deficiency of service in the project. WIll there be any problem for the society in filing a consumer case since it is registered under Societies Act?

  5. Facts of Karnataka Apartment Ownership Act 1972 and Association Registration process
    KAOA (The Karnataka Apartment Ownership Act 1972) is not pertaining to Registration of Apartment Owners Association.
    KAOA completes the process of creating proper “title “of the flat by registering the Deed of Declaration in Form “A” by sole owners or by all Owners and execution of Form “B” by all Owners.
    It is the responsibility of the Builder to prepare and register the Deed of Declaration in form “A” with Sub Registrar office along with its bylaws.
    This deed of declaration need to be registered by the Builders much before conveying the sale deed to the individual home buyers and reference of this Registered Deed of declaration to be mentioned in the Sale deed.
    Subsequently every individual Owners need to submit a declaration in Form “B” upon registering the sale deed.
    The Builder hand over the Registered Deed of Declaration and Form “B” upon forming the Association of Owners, under Karnataka Co-operative Societies Act 1959 or under Company’s Act 2013. (Earlier 1959).
    The Association Committee submit the certified copies of Deed of Declaration, Byelaws and Form “B” to the competent authority, within 30 days* of its first General Body meeting , and this completes the process of KAOA.

    Current Scenario:
    The Builders (Sole owners) are not registering the Deed of Declaration in “Form A” before sale deed registration and only few reputed Builders does this.
    Hence, the All owners are put in to hardship and the KAO Act is interpreted now and few Legal experts are of the opinion that all owners now can jointly complete the process of creating proper “title “to the apartment by submitting the Deed of declaration and registering the byelaws with 2/3 rd. majority of Owners joining to- gather as first batch in the Sub-Registrar office.
    To complete this process by all owners, a special power of Attorney is obtained for specific purpose of submitting the Deed of declaration and signing of “form B”. There is a lot of difference of opinion in this process but, logically I find no harm in following this process as there is no other option available, except to approach the State Government Authorities to resolve this issue.
    Further the Association has to be registered either under Karnataka Co-operative Societies Act 1959 or as per Companies Act 2013 and there is no legal provision to register it under KSRA – Karnataka Societies Registration Act 1960, which are being practiced and followed by many.
    A few Associations’ could get success in getting PAN card and opening of Bank accounts with the registered Deed of Declaration but the proper way to get the PAN and opening of Bank accounts are with the “ Registered Certificate Copy “ issued by Karnataka co-operative Societies Act 1959 or by the Registrar of the Companies.

    Only upon registering either with Karnataka Co-operative Societies Act 1959 or as per Companies Act 2013, the Owners have grievance redressal option to approach the concerned Registrars with their complaints about their Management Committee’s function, duties, Challenging the elections, decisions, etc. as per the Byelaws or MOA without approaching the Court of Law.
    The Association Committee submit the certified copies of Deed of Declaration, Byelaws and Form “B” to the competent authority – Registrar of Co-operative societies, within 30 days* of its first General Body meeting , and this completes the process of KAOA.
    While Registrar of co-operative society is named as competent authority as per KAO Act 1972, but his duties, rules and regulations are not elaborated.
    Of course there are lacunae in KAO Act 1972, which need to be addressed by proper amendments as it is 45 years old Legislation, which never underwent any amendments.

    M.S.SHANKAR – 9844010530 – msshankar1961@gmail.com

  6. Please can someone tell me who approves the STP installation and specifically the location within the apartment complex as it can cause a health hazard if not placed in the right place. Is it the BBMP or BWSSB or Karnataka Pollution control board that provides the approval for STP installation along with approving on where it should be?

  7. after reading this article i was of the impression that KAOA is required for passing clear title of uds.

    But I came to realise that khata registration makes the apartment as well as uds clearly in our possession.

    KAOA is required for the purpose of administration of the apartments, so that every member is bound to pay maintenance charge for common expense and the transactions and functioning of the members of the commitee are under bylaws.

  8. after reading this article i was of the impression that KAOA is required for passing clear title of uds.

    But I came to realise that khata registration makes the apartment as well as uds clearly in our possession.

    KAOA is required for the purpose of administration of the apartments, so that every member is bound to pay maintenance charge for common expense and the transactions and functioning of the members of the commitee are under bylaws.

  9. after reading this article i was of the impression that KAOA is required for passing clear title of uds.

    But I came to realise that khata registration makes the apartment as well as uds clearly in our possession.

    KAOA is required for the purpose of administration of the apartments, so that every member is bound to pay maintenance charge for common expense and the transactions and functioning of the members of the commitee are under bylaws.

  10. after reading this article i was of the impression that KAOA is required for passing clear title of uds.

    But I came to realise that khata registration makes the apartment as well as uds clearly in our possession.

    KAOA is required for the purpose of administration of the apartments, so that every member is bound to pay maintenance charge for common expense and the transactions and functioning of the members of the commitee are under bylawd.

  11. We have planned to submit a memoranda to UDD officials and if possible to meet Shri K J George to take forward the issue of STP INSTALLATION with retrospective effect.

    In this context, we request the Apartments, that have received the notices, to forward copies of the Bwssb notices issued to the apartments along with the copies of the bill showing the penalty and payment remittance details if any. I need as much as possible data to attach with the representation. Last date is 15th January. Please send it to my email: Msshankar1961@gmail.com. Please mention your apartment name, address, Total number of flat, size of the Land in which it is constructed, year of construction as well.

    Need more number of data with documents.

    M.S.SHANKAR – convenor – Karnataka chapter – 9844010530

  12. STP Installation …….We are from janapriya Heights flat Owners association. BWSSB is charging us penalty for not installed the STP in our facility. Ours is 14 year old building and literally we donot have space for construction. We have given a letter to BWSSB chairman requesting to exempt us from STP installation. Even we would like to be part of the group if you are all taking any action as a group.

    Regards, Kalpana Rudrapatna

  13. In second line from the bottom- to correct and read, – BWSSB ; albeit, also BBMP, as the project plan approval authority, would require to be, as already suggested, lined-up, necessarily imp- leaded as one of the necessary OPs.

  14. Sub: STP

    Apropos of previous Post, there has been no further feedback info. /update on the latest development, if any. However, according to info., gathered, on specific inquiry from a friends’ circle, steps have since been taken and the court has been moved for an adjudication. Anyone from the activists’ groups, with an authentic information to that effect, it is suggested, may share with the rest, through this column, – in addition to via WHATS APP- the latest status, thereby enable an active and objective participation by them, in the court proceedings. The first and foremost step n the right direction should be to seek and obtain a blanket stay order from the court, restraining BBMP in the interim from pursuing its mis- conceived / -directed adventure any further, in individually selected cases, until the dispute has been finally settled.

  15. ADD-on

    Apropos of the previous Post in re. STP in building complexes, attention may, at cost of repetition, be specially invited to the input furnished under ‘Master Note’, if found useful, @ https://www.linkedin.com/pulse/apartment-complex-es-bwssb-latest-move-swaminathan-venkataraman?trk=mp-author-card ; which is reproduced below, in case not been read / made a conscious note:
    Q
    Suggested Points of Defence / Protest:
    1. RWA is not a ‘legal entity’- see host of Inputs shared and available in public domain.
    On that premise, any notice served on a RWA or any of its ‘care takers’ (not ‘office bearers’ or ‘managing committee’ in any legal sense) requiring STP compliance is patently invalid, so much so a non-est, hence unenforceable.
    2. BDA / BBMP, the authority for project approval, had, as is to be readily inferred, never been serious about implementing the idea of STP; more so, building wise, of course, never intended so as to be acted upon. The reasons are not far to seek but several.
    One such strong possibility is the widely prevailing collusion with Promoters/ builders in regard to, among others, gross violation of many of the bye-laws /building rules, in force, but just on paper.
    Even on the ground of best assumptions, if at all building-wise STP had been intended, that ought to have insisted upon, pursued and ensured that the document of project plan, as submitted, did contain, on the face of it, the location chart (the architect drawing details) of STP facility, before its being formally approved / sanctioned; and to the stage of construction completion. In other words, once the Plan had been vetted and approved, sans STP, consciously, and construction has been gone ahead with, in-progress over a long period, and completed by the promoter/builder eventually, it is too late in the day (that is, after years) to require or try to enforce STP compliance. Further, the strong objection is against purchasers/occupants being made a soft and easy target, for no fault of them, individually or collectively, for the failure to comply by promoter /builder.
    More importantly, even granting that in a given case, STP was specified in the authority’s letter of approval , as one of the terms and conditions, of the Project Plan, that was , at best, binding on the promoter/builder; certainly, NOT on purchasers of the Units, after completion of the construction. To be precise, purchasers (either under first sales or subsequent sales, as the case may be) were not a party or privy to the Project Plan, from the time of its submission, to its approval and construction completion. As such, no authority (BWSSB or any other) can rightly assert to have any ’cause of action’ (in its legal sense), so as to validly proceed against the purchasers, in the event of any non-compliance by promoter /builder, of any of the approval terms, not excluding STP.
    3. According to understanding of the reliable information (see the recent Posts @ http://praja.in/en/blog/murali772/2016/09/06/practicality-enforcing-revised-bwssb-stp-norms-existing-apartment-complexe#comment-38286), neither BDA or BBMP, or BWSSB for that matter and its own then officials-in-charge, from time to time, jointly or severally, never thought of or believed that STP could, if and when finally decided to be implemented, could be insisted upon except prospectively.
    As is to be found recorded – see http://praja.in/en/blog/murali772/2016/09/06/practicality-enforcing-revised-bwssb-stp-norms-existing-apartment-complexe#comment-38274-, what Mr MDN Simha, a former Chief Environmental Officer, KSPCB has said / opined, in no unmistakable language, must be worth taking a conscious note of, for a helpful support of its kind.
    4. Even as late as in the year 2014 (ref. the Link given above- http://www.google.co.in/url?sa=t&rct=j&q=&esrc=s&source=web&cd=8&cad=rja&uact=8&ved=0ahUKEwjZqIPo-KbQAhVJo48KHboGDckQFghDMAc&url=http%3A%2F%2Ftimesofindia.indiatimes.com%2Findia%2F70-of-Indian-sewage-treatment-plants-dysfunctional-Javadekar%2Farticleshow%2F45231410.cms&usg=AFQjCNEVbksrfgTxgMl76qf_0NpiMrvH6A&bvm=bv.138493631,d.c2I), the central competent authority, empowered and responsible to oversee, itself was unsure, being in a dilemma, as to what type of technology that could be ideally adopted, so as to fit into Indian environments / soil conditions, so on.
    So far as is to be gathered /inferred, even until date, that appears to be the status quo, nation wide; in that, the central authority is still in no position to be of any guidance, with positively workable suggestions, for the authorities at the states’ level to confidently take a decision and proceed.
    5. The mooted idea of a penal charge, in case of non-compliance with STP , as reckoned on the basis of water charges billed- as mindlessly proposed /heard to have been done selectively,- is obviously irrational, suffering from a blatant fallacy of disconnect, so to say ; hence ought to be stoutly contested.
    In this regard, the scope, if at all any, for such a penal levy, has to be looked into and ascertained, from the Rules book of BWSSB and / or BDA/BBMP, as the case may be, but cohesively, not in isolation. So far as is known, however, there appears to been no such scope for BWSSB to go ahead with and attempt such a levy.
    Looking simply from a common sense point of view, in any case, there is no rhyme or reason for so imposing a penal charge in reference to the amount of water bills; which has to be necessarily and strictly based only on actual supply and factual consumption of water by the building complex, nothing more, arbitrarily.
    The areas within the respective domain and powers / authority of the said local bodies, -which obviously have been functioning with no co-ordination and co-operation among themselves, whatsoever,- albeit being two distinct local authorities set up for different purposes, are expected to discharge their functions /duties in relation to a building complex unitedly; not according each one’s own independent whims, in such a manner as to result in unjustifiable hardships to the building complex as such, or its owners/ occupants.
    (Pending to be EDITED/ADDED for better clarity/emphasis)
    UQ

    FOOT Note:
    According to the latest info., from close reliable quarters, the related action lately initiated, or proposed, by BWSSB against old housing societies has been strongly protested against, as illegitimate and unwarranted; and been done so, in a specially convened meet of the aggrieved purchasers/owners , in a good number, in occupation of Apartments .
    Further, the added self-speaking info., is, for similarly aggrieved apartment complexes hence likewise interested to contact, – “Sri .Prasanna from Brigade Millianem J.P.Nagar Apartment who is taking a lead in the matter and wants to have a group by way of WHATTS APP and Facebbok His mobile number is 98455 80227.”

  16. A feedback

    http://timesofindia.indiatimes.com/city/bengaluru/BWSSB-to-apartments-Install-STPs-in-3-months-or-pay-fine/articleshow/54875349.cms

    The reported public announcement is self speaking.
    Attention -of those really concerned and care to keep selves aware , and take a conscious note of, what has been happening all around / ongoing deliberations, – may be drawn to:

    http://praja.in/en/blog/murali772/2016/09/06/practicality-enforcing-revised-bwssb-stp-norms-existing-apartment-complexe
    Not Unrelated:
    http://www.thenewsminute.com/article/where-does-all-bengalurus-poop-go-35250

  17. A Fresh Alert (fyi)
    http://newsalert.thehindubusinessline.com/a/hBW$01mB9HlMxB9JumFAAAbF-KP/hind84

    How to be @home in a gated community …
    Is it to be suffixed with a dhobi mark, – ‘Q’ or ‘!’?
    Excerpts (selectively):
    Q
    “Gated community is not explicitly acknowledged UNDER THE PRESENT REAL ESTATE LAWS. “
    “Buyers end up paying a premium for a concept that is not backed by law, says Upadhyay.”
    “Also, home owners’ association rules ARE GOVERNED BY CO-OPERATIVE SOCIETY RULES and not APARTMENT ASSOCIATION RULES.”
    “As a result, enforcing bylaws and collecting dues are a hassle, he notes. Until new rules are formed, buyers must be cautious and understand that the premiums they pay may not get them what the brochures promise.” ” (FONT supplied)
    The write-up is neither helpful nor provides any clue or solution to either buyers of ‘GC’ or of apartments’ as to where exactly they stand in the eyes of the generously referred ‘rules’ or ‘law’; even granting for the nonce that there do really exist such rules, laws, byelaws, at least on paper, covering and to take adequate care of the two main aspects /concerns of ‘ownership’ and ‘maintenance’.
    May be, duly equipped / knowledgeable property law experts, preferably other than exclusively partaking in such discussions as social activists, at large do have some enlightening information up their sleeves, to share.

  18. What about the new Real Estate Bill, could the Citizen Matter team, Sanjay Vijayaraghavan and vswaminathan explain the pros and cons and any way we could remedy the shortcomings?

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