The apartment law you must know

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.

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.


WE WANT TO THANK YOU
for reading Citizen Matters, of course. It would be fantastic to be able to thank you for supporting us as well. For 12 years we have strived to bring you trustworthy and useful information about our cities. Because informed citizens are crucial to make a better city. Support Citizen Matters today.

DONATE NOW



About Sanjay Vijayaraghavan 8 Articles
Sanjay is a mechanical engineer working for one of the city's MNC firms. He lives in BBMP ward 85 (Doddanekkundi).

25 Comments

  1. @Shankar Srinivasan, we find ourselves in the same situation as you were in your first post. Could I connect with you offline to get some tips? In our case, although the owners’ association is formed properly under KOA, builder is not conducting election till all the flats are sold out. They are keeping the maintenance to them for easy money and as a result the maintenance quality has taken a back seat. We are trying to get out of the loop to take over the maintenance under the association, but this is not legally recognized I guess till election is conducted. So need to know how to cut the chain.

  2. The main lacunae is not available of any registration certificate mentioning the name and address of the association which registers the Deed of Declaration, Bye Laws, Sanctioned Plan, etc., with Sub – Registrar as per the provisions of KAO Act 1972. Though the competent authority to receive a copy of the Registered Deed of Declaration , Bye Laws , sanctioned plan , etc has been named subsequently as per the Karnataka Apartment Ownership Act 1972,(the CA is The Registrar of Co-operative society) but his scope of work and duties are not clearly defined. This defect needs to be amended immediately and the Registrar of co-operative Society be instructed to issue the Registration Certificate to the Associations which are registered as per the provisions of the Karnataka Apartment Ownership Act 1972.

    (1) instructions be issued to all The Registrar of Co-operative society to not to entertain registration of the Apartment owners association ( Resident Welfare Associations ) under the society’s Act 1960 and (2) a Law to enforce the Builders to Register the Association of all Owners who purchase flats as per the provisions of the Karnataka Apartment Ownership Act 1972 only and all the maintenance of the apartment be smoothly transited to the Association post Registration under KAO Act 1972.

  3. May I get the name and contact number of some good lawyers with expertise in real estate – association formation, filing consumer court cases, etc. Thank you.

  4. If the Bye laws are framed as per the provisions of KAO Act 1972 and if registered under KAO Act 1972 along with Deed of Declaration, Form B, it can be defended in any court of Law. Bye laws prepared under Soceity’s Act and Registered under society’s act, does not have any legal entity.

  5. Bye laws framed and accepted by all the co-owners of an apartment pertain to the common facilities, is possible to register and defend in the court of law.
    Parthasarathy

  6. hi all, can someone give some input on this :
    i am a tenant @ Bangalore – office building, i am paying rent to the owner and maintenance to the association and have receipt in my name, now when i find the maintenance is very poor ( no proper security guard, they are physically challenged, no of guards less, no proper management, my parking is misused, so on) can i complain to the association.

  7. @MR
    To add > Attention may be drawn, for useful guidance, to the reader’s query and reply thereto of an Expert in the Lci Group @ http://www.lawyersclubindia.com/experts/How-do-we-conduct-a-general-elections-in-a-chs-when-there-is-only-an-admin-committee–442826.asp
    The point painfully noted is that, even in the case of a duly formed and registered CHS, despite coming within the supervisory powers of the competent authority and his overseeing administrative control, a piquant situation such as the one cannot be wished away ; if so, does not the really effective solution lies only with each and every purchaser of a unit; and realization and sincere and whole-some / – time co-operation among them all as a community.. At the best, all external rules and regulations could only be of remote help, if and when were required to fall back on, as the final resort. for that matter, even the changes sought to be brought in, in respect of CHSs, by the lastly effected amendment (97 th) of the Constitution do not seem to squarely deal with/tackle any such inevitable problem inherent in the very system.

  8. This refers to the reply given herein before, to a specific query on the provision of law for ‘ car parking’ wprt the KAOA. Am obliged to differ; for the reasoning, the comment posted elsewhere, but in a different context, reproduced below, may be looked up:
    Q
    In the concerned everyone’s own interest, points to be made a special and conscious NOTE of are, among others, mainly these:
    A) The SC ruling seemingly under reference /in mind * is wprt the provisions / scheme of things applicable to “FLATS” under the MOFA; further, one given on the specific facts of that case. Hence, may not be prudent for anyone to assume and proceed on the premise that it is ipso facto applicable to any other of its kind- such as “APARTMENTS” or in any other State.

    B) The relevant provisions applicable to “APARTMENTS”, which are distinct and clearly distinguishable, even on a simple reading (but with clear vision/ dilated eyes) are to be found in the separate enactment applicable thereto; e.g. in Maharashtra, it is called the,- MAOA;

    C) In Chennai, as is commonly known, mostly constructed and sold as by builders are,- “APARTMENTS”; and applicable thereto is the enactment called the TNAOA;

    D) The TANAOA is an enactment framed, and structured, more or less on the lines of/ adopting the underlying model of the MAOA, but for certain deficiencies . For a critical comparative study of the respective law on APRTMENTS in force in Maharashtra and Chennai, one may care to mindfully go through the published article – “Own an Apartment in Chennai?” – Citation, – (2003) 3 MLJ (journal) pg. 5.

    In one’s independent and perceptive conviction, for ascertaining and deciding on the position in law, so as to convincingly (or expertly or eminently)answer the query on hand, even on a tentative basis, the foregoing unflinchingly crucial aspects ought to be kept in razor-sharp focus, as an imperative backdrop.
    The information exchanged in good faith and made freely available in some detail in public domain, purely for sake of the common good, in its profound sense, for instance @ the following Link,-
    UPOR or PR Card-All property details in one card for Karnataka **- (comments posted thereat need to be read),
    it is earnestly believed/hoped , might provide useful clues and be of broad guidance.
    UQ
    * Nahalchand Laloochand P.Ltd. vs Panchali Co-Op.Hng.Sty.Ltd. on …
    ** UPOR or PR Card-All property details in one card for Karnataka

  9. @MR >impromptu (Personal viewpoints) :

    Posers , intriguing though, arising upfront:

    1. It may be prudent to assume,- open to correction if wrong, – with no details made available, the subject ‘AOA’ is of the type normally -come- across in real life- that is, has not been duly formed and constituted, with all the mandatory requirements of the special law having been fully complied with. If that is so, so far as one knows, there is no ready or quick way-out to usefully suggest.

    2. Even it be otherwise, as of now, the ROCS is still not prepared to but is obstinately dodging to carry out his dutes and responsibilities as the designated “competent authority”. That is, of course, not without valid reason; for despite the KAOA naming him as the ‘designated authority’, the KCSA has omitted to take care, and remained to cover within its ambit, a ‘housing society’. For an elaboration, one may look up the several related Posts @ praja.in.

    In short, a recourse to the ROCS in such a piquant situation, which otherwise would have been open, is not possible. So much so, it is a sort of ‘hung’ situation, akin to only ‘trishanku’.

    3. Nonetheless, the MC , having been originally elected by the body of purchasers,placing mutual faith and trust on them, going by principles of natural law, it could be urged, they have been ‘acting as trustees’, hence ought not quit en masse, but are rather morally obliged to continue and function as hoteherto, until such time their responsibilities and functions could be formally handed over to a fresh set of elected members for MC; that is until that happens.

    $. Be that as it may not have been unanticipated, it is not but worthwhile to look into and ascertain whether/ what “the bye laws”, if in place, provide, and could prove of any help, in regard to election of MC ‘ and its minimum period of office (assuming there is one in existence alt least for name sake). In the worst scenario as is imagined, perhaps, the one and only recourse anyone can think of, is going to court for getting out of the rut / stalemate; for which the blame, the monetary and other like burdens / inconveniences , would have to be shared by one and all of the ‘purchasers’.
    5. In the ultimate analysis, if this is one of those common instances in which such a predicament has come to surface because of the promoter/seller having failed to discharge his statutory obligations, inclusive of registering a DOD, then he must have to be imp leaded not only as a necessary party but as the main party / defendant in any such court proceedings, if were to be gone thgrough as suggested.

    All said , need not add, the owners require to find and entrust the matter to a lawyer known , above all, for his personal competence and scruples.

  10. Hi Sanjay, If in General Body Meeting no one is ready to take responsibility of office bearers of apartment association, what existing office bearers can do.

  11. We could somehow, able to accomplish the process of Registering our Association under KAOA on 12th December 2013, though our Builder did not co-operate and submit any plans and support. Most of the consultant those we came across have recommended forming association under society Act and but after our reading of the article by Mr. Sanjay, our hopes on KAO Act Registration increased and we stood together and finally we achived our GOAL. It is possible only by unity among all OWNERS of the Apartments and TRUST. But the process is hectic and lengthy but we enjoyed the whole process where we had a lot of twists and climax.Thanks Sanjay,

  12. our building is 9 years old as is the association. there are only 12 flats in the building. do we need to register our association? we need to apply for a pan no for our association to operate our bank account & without registering we cannot apply. a lawyer informed us that 12 & less apartments in a building, the association need not be registered. is this true?

  13. Hi Sanjay,

    I am a owner of flat in Pariwar Presidency Apartment in Anugrah Layout, Bilekahalli, Bangalore.We have started the process for Association registration under Karnataka Apartment Ownership Act (KAOA). Here are few hurdles that we are facing.

    1. The law requires that Builder should have registered a ‘Deed of Declaration’ (DoD) before selling any apartment. Also this DoD should be referred in the Sale deeds of each apartment. Builder has not created/registered any DoD before. Most of the flat are already sold and their sale deed do not include reference to DoD (as it is non existing at this stage). Can we still get the DoD registered at this stage?

    2. Does registration of DoD at this stage requires OC from BBMP?

  14. Dear Mr.sanjay, I currently live in Krystal campus 10 where in we have both VIlla’s and apartment , can you pls guide me under which law we should register the owners associations as the common amenities are shared between both villas and apartments. Regards, M.Baradharajan

  15. To register a apartment association under KAOA, should Deed of Apartment of all the flats in the society be submitted? We are a apartment complex of 250 flats 4 blocks which are 8-12 years old.

    Where is the KAOA registration office in Bangalore.

  16. Dear all –
    Is the KAOA, 1972 applicable for villa projects too? There is a mushrooming of them in Bangalore currently.

  17. I represent an Association, as President which is recently formed to highlight our woes and to co-ordinate with the Builders to get the finishing work monitored as per our requirement and as committed by the Builders. Upon getting elected, we have intimated to the Builders that, a few OWNERS have been elected as office bearers and requested the Builder to receive and send all future communication with them. We totally 14 officer bearers have been selected out of 127 Apartment OWNERS. In the election process it was attended and our election process was accepted by 64 Owners.Out of 127 Apartments 30 Apartment pertains to the un- sold units of LAND OWNER and the BUILDER shares have been fully sold. We have recently started the Association Membership and we are confident of getting around 90 + Owners to obtain Association Membership and we are collecting a copy of sale deed for our records for submission during Registration of our Apartments. We have also upon electing our Office Bearers, have intimated to the Builders, to submit our Association for Registration under KAOA Act 1972 and so far no response from them.

    We have had a meeting with the Builder and submitted him a List of facilities, work, requests from our side and they have give some commitment dates and we have made the MOM (mintues of the meeting ) and intimated them.

    The work now is not happening as per our wish and the Builder is not responding properly to the Association mails and continuing his finishing work as per his will and wish.

    There are still 8 Flats are to be taken possession by the direct OWNERS and around 27 Flats which belongs to the LAND OWNER share needs to be finished.

    The committed common amenities are all half way like Gym , Indoor Game , Pool.

    The Parking space not yet allocated.

    Under this situation, we request, what should be our next move ? How do we break this huge Rock ? How do we proceed with the Association Registration ?

    I request to help us by your experience to come out of this crisis.

  18. To add: As may be recalled, a leading lawyer – who is well known and popular through his special columns in a Daily providing expert answers to readers’ queries, -in his eminence, does not believe or say that DoD as a legal requirement cannot be prudently wished away or bypassed, in the larger interests of the normally gullible buyers’ community.

  19. Impromptu (at the highly painful cost of repetition):
    “…There are quite a number of lawyers who say DOD is not a requirement to register the association under KOAO is that feasible?”
    The query, to answer abruptly, but even in the least offensive manner, does not at all seem to make any sense whatsoever- call it common sense or legal sense.
    Reasoning in brief>
    In the case of a building of units (flats or apartments) as unequivocally provided in the specially legislated State enactments, purchasers have a lawful right to have the property in the entire land and building finally conveyed by the promoter / vendor to a legal entity comprising the purchasers as its members- constituents. Such a conveyance is a must. That is, apart from the separate conveyance of the limited property rights in – being to possess, occupy, and exclusively enjoy as the rightful occupier of- the “Flat” or “Apartment” to the individual purchasers.
    In the case of “Flats” such a legal entity is the one which is required to be formed and duly registered as a housing co-operative society, following the procedure laid down by the State law governing the co-operative societies. If those are “Apartments” , such a legal entity, known as “Owners’ Association”, has to be formed and brought into existence by following each and every one of the procedural requirements of the law governing apartments. To say it differently,
    As rightly set out in the subject write-up, one of the crucial and fundamental requirements to be fulfilled upfront is the DoD.
    It may be specially noted that, CREDAI, being the promoters’ voluntary Organisation itself, has, in the Code Of Ethics meant for guidance of its members, not disputed but recognised that DoD is a requirement of law calling for compliance.
    In short, it appears to be too late in the day to try and give any fresh lease of life , particularly by ‘lawyers’, to any such virtually ‘dead’ controversy, with no substance or merit whatsoever. Unless, contrary to the common belief, a ‘lawyer’ (dictionary meaning – a person whose job is to know about the law, and give legal advice and help) perchance even remotely believes that it is part of his job to read and understand, or rewrite the law, as it suits.

  20. The post does give a lot of good information thanks for this. I do have a practical question. The requirement to register the Association under KOAO is the DOD and this requires the plan verified by an architect as per approved plan. How many apartments adhere to this? what if the plan deviates more than 15% than the approved plan from BBMP/BDA can an association still be registered? There are quite a number of lawyers who say DOD is not a requirement to register the association under KOAO is that feasible?

Comments are closed.