• Builder stops paying maintenance dues suddenly and behaving rudely

We purchased a ready-to-move 3 bhk flat within a residential complex (Verdant Orchid) in South Kolkata and registration done on 22nd April 2016. Flat registration was required to get final disbursement of bank loan. The builder promised to handover the possession and complete all pending activities within the premises, and with this trust , we paid on time all the amount which comprises associated funds (corpus, sinking, association, generator, transformer etc) as demanded. The completion certificate was received by us from Kolkata Municipal Corporation (KMC) on Sep 2016.

However till date the status of pending activities is still in progress and builder is not agreeing to give any tentative completion date. The association formed internally has not been registered yet by builder. Suddenly the builder sent us an email that they will not able to continue maintenance from Sep 2017 on-wards and asking us to take care of the maintenance responsibilities ourselves effective from Oct 2017. We have not received any formal possession letter or association hand over notice yet and we are still in dark as to when we will ever get them.

In this situation my question is - 
1. Can builder suddenly refuse to stop maintenance without any prior notice or without handing over formal possession letter.
2. When are we, the flat owners supposed to start paying towards maintenance? Till what time builder is supposed to pay the maintenance?
3. There are many pending works left to be completed by builder, and hence getting possession is delayed for indefinite period. Can builder refuse to stop maintenance in this situation?

Please suggest best possible solution for this,
Asked 2 years ago in Property Law from Kolkata, West Bengal
Religion: Hindu

1. Well continuing with maintenance activities in the building by the builder generally limited to the period of formal handing over of possession and registration of deed of conveyance. However this may be extended to further period as agreed by the developer in the deed of conveyance.

2. So if majority of the flat owners have got possession of the respective flats and started residing there they should form a body and take charge of maintaining the common facilities.

3. If thr building is not completed in all resoects then the builder can't stop carrying out its maintenance activities.

To redress the grievances you may file case before the consumer forum so the facilities agreed to be provided by the builder can be directed to complete and compensation can be provided with.

Feel free to contact if you require assistance in this regard.

Devajyoti Barman
Advocate, Kolkata
18123 Answers
260 Consultations

5.0 on 5.0

1. The builder has to facilitate the formation of the RWA and before the formation of the same he cannot withdraw. RWA can be formed(under law) after possession of a requisite number of flats is handed over. Even after the formation of RWA, the builder is to contribute towards maintenance corpus for all the unsold flats that belong to him

2. Peruse the terms of the builders buyers agreement to derive information about this. Generally, the builders charge advance maintenance for about an year.

3. No. shoot a legal notice to him.

Vibhanshu Srivastava
Advocate, New Delhi
8734 Answers
144 Consultations

5.0 on 5.0

Hi,as you said the OC has been recieved by the builder in 2016 .. The OC is issued by the competent authority only after the builder has completed the project as per brochure and have provided amenities for living such as water and electricity .. After the OC is recieved and the posession has been giving to the allotees , the RWA has to be formed within 3 months and after its formation the builder transfers the maintanace of the property to the RWA

Hemant Chaudhary
Advocate, Gurgaon
4310 Answers
31 Consultations

4.9 on 5.0

The builder has to obtain occupation certificate from muncipal corporation

2) then hand over possession to flat owners

3) maintenance would be payable by members after handing over possession of flats

4) builder has to complete pending works

5) issue legal notice to builder to complete pending work , obtain OC ,deliver possession within stipulated period , maintain the complex

6) if he fails file complaint against builder before consumer forum and seek orders to direct builder to deliver possession of the flat and complete pending works etc

Ajay Sethi
Advocate, Mumbai
69020 Answers
4153 Consultations

5.0 on 5.0

1) builder cannot deliver possession of flat until OC is issued

2) builder has to pay maintenance till issue of OC

3) builder has to complete pending work

Ajay Sethi
Advocate, Mumbai
69020 Answers
4153 Consultations

5.0 on 5.0

1. Builder can officially offer possession only after obtaining the OC. Once the possession is official offered, irrespective of the fact that one takes possession or not, the builder starts charging the maintenance. Thus, from this point of time he will start debiting your advance maintenance account(he has taken 12 moonths advance maintenance from you).

In light of the above, there is no question of builder stopping maintenance without providing allotment or possession letter.

Q. There is no clear schedule mentioned in the agreement or conveyance deed as to tentative project completion or possession date neither mention of period as to when purchasers are liable to bear maintenance charges.

Ans. This is a practice not compliant with law. He was under an obligation to give you in writing the completion date.

You grievances are manifold and hence, you are requested to get in touch with a local lawyer and brief him with the matter in detail. Pursuant thereto, send a legal notice to this builder.

Vibhanshu Srivastava
Advocate, New Delhi
8734 Answers
144 Consultations

5.0 on 5.0

It is incumbent upon the builder to facilitate the formation of RWA and he can not withdraw paying the maintenance.

Builder is supposed to pay the maintenance for the flats that are not sold until and unless the same are sold by the builder.

Builder is bound to complete the pending work, issue a legal notice to this regards and obtain the OC. If he fails to complete the work then you may approach the consumer forum also and till the completion of such work it is his duty to maintain the premises.

Regards

Anilesh Tewari
Advocate, New Delhi
17268 Answers
267 Consultations

5.0 on 5.0

Builder can not deliver the possession of the flat until the OC is issued.

And till then he has to maintain the complex.

Regards

Anilesh Tewari
Advocate, New Delhi
17268 Answers
267 Consultations

5.0 on 5.0

1. No

2. File case before consumer forum.

Devajyoti Barman
Advocate, Kolkata
18123 Answers
260 Consultations

5.0 on 5.0

If there is no specific obligation who will bear the maintenance cost, generally after taking possession maintenance cost bear by the owners. However if there is obligation then send a legal notice to the builder to avoid litigation, failing which you can file a case in Consumer Forum for deficiency of service against the builder.

Minansu Bhadra
Advocate, Kolkata
417 Answers
29 Consultations

4.9 on 5.0

Without chevking the details of agreement cannt comment exactly ....also its not clear how many people staying in total building complex ? Society formed or not ??please elaborate so as to give exact answer......

Vijay Kumar
Advocate, Mumbai
26 Answers

4.0 on 5.0

1. No builder cannot stop maintenance without providing allotment or possession letter and without completing the activities which the builder is supposed to perform.

2. It seems the builder is not performing his work properly and therefore it will be prudent to approach the consumer forum against the builder.

Sanjoy Bose
Advocate, Kokata
17 Answers

4.0 on 5.0

1. It is improper to register the sale deed of a flat before it is fully completed and possession in writing has been given by the builder. The builder is taking the advantage of your registering the sale deed ( and taking possession of the incomplete flat) and taking the possession certificate from the Corporation and asking you to maintain it yourself. At no time you can deny that you have taken the possession certificate of the flat.from the corporation. It is not clear whether you have started residing in your incomplete flat or not as otherwise there is no need for maintaining and incurring any expenditure for maintenance of the flats.

2. After registrations of flats are done and most of the flat owners start residing therein, the builder is expected to handover the charge of maintenance on the resident flat owners asking them to form an Association.

3. If you have collected possession certificate from the Corporation and have registered the sale deed and have started to reside in your unfinished flats, then the builder can wash off his hands to maintain your flats. All the residents should now file a complaint case before the local District Consumer Dispute Redressal Forum against the builder alleging deficiency in service and unfair business practice claiming for a direction upon the builder to complete the unfinished works within next 30 days, pay damage and cost and maintain the complex till then. In case of failing to comply with the above order of the forum, the builder will be liable to pay a fine a Rs.1 K per days of delay to all the flat owners shall be liable to maintain the said complex.

Krishna Kishore Ganguly
Advocate, Kolkata
22779 Answers
612 Consultations

5.0 on 5.0

1. The question of maintenance of the flats arises only when the flats have been occupied. He can show a document that he has handed over the possession letter to all of you and based on the same all of you have taken physical possession of the flats and you can not disprove that you have not physically occupied the flats. It is not mandatory that he shall have to show the acknowledgement of receipt of the possession letter claimed to have been issued to you by him when it can be proved that you have actually taken physical possession of the flats. You can not legally claim the advantage of his not issuing you the possession letter for not incurring the expenditure of maintaining your flats where you are residing.

2. the agreement is faulty being incomplete which you have signed. However, when he has registered the sale deed of the flats,it is imperative that he should complete the flats/project before registering the sale deed since he has not mentioned in the sale deed that he is registering the incomplete flats. So, he shall have to complete the unfinished job. File the consumer complaint case as suggested in my earlier post.

Krishna Kishore Ganguly
Advocate, Kolkata
22779 Answers
612 Consultations

5.0 on 5.0

After OC is issued in September 2016 builder can recover maintenance charges fromflst owner

2) builder has to form cooperative housing society of flat owners ,execute conveyance deed in favour of society call EGM of all flat owners and handover management of society to managing committee elected by the flat owners

3) if builder has failed to complete pending works file complaint before consumer forum and seek orders to direct builder to complete the pending work

Ajay Sethi
Advocate, Mumbai
69020 Answers
4153 Consultations

5.0 on 5.0

No. The builder is showing his highhandedness and has pre-charged the annual maintenance from you and other occupants, even before he could complete and handed over the common amenities. Officially too, the builder cannot charge maintenance at any time before he has obtained the occupancy certificate.

Having said that, your grievances appear to be manifold and the root cause of each of it is deficiency in services extended by this builder. Either you individually or all of you collectively can shoot a legal notice to this builder seeking forthwith readdressal of your grievance and all such claims which can be maintained and established under law.

If even this legal notice falls on the deaf ears of the builder, you can drag him to the consumer court or RERA.

Vibhanshu Srivastava
Advocate, New Delhi
8734 Answers
144 Consultations

5.0 on 5.0

If the formal possession letter has not been issued then the Maintenance charges can not be imposed upon you.

It seems that the builder has failed to deliver the services as promised and as such he is liable for deficiency in service and unfair trade practice.

Send a legal notice to the builder.

If he fails to respond then file a case in the consumer forum and claim the damages for mental harassment and legal fee.

Regards

Anilesh Tewari
Advocate, New Delhi
17268 Answers
267 Consultations

5.0 on 5.0

1. Registration of sale deed of the flats before completion of all the works is improper and allows the builder to claim that such buyers have agreed to register the sale deeds pending some minor works.

2. When registration of sale deed has been completed, the matter of absence of allotment letter can not be pressed legally which the builder can always say as 'has been issued'.

3. Similarly possession letter can be claimed to have been issued by the lawyer based on which you have taken the physical possession.

4. The agreement for sale which you have entered in to is faulty and one sided which the builder is taking advantage of.

5. In place of stressing on the maintenance issue for which you have very feeble ground, you should stress on his failure to complete the construction as per the plan which they should have completed before registering the sale deed.

6. File the complaint case before the Consumer forum as suggested in my earlier posts claiming completion of the works with in next 30 days and pay penalty of Rs.1 K per flat per day till the completion of the entire work which might be more than the amount required for your maintenance.

Krishna Kishore Ganguly
Advocate, Kolkata
22779 Answers
612 Consultations

5.0 on 5.0

The apartment owners association plays a vital role in maintaining the apartment and its amenities. But before the formation of apartment owners association, it is the duty of the builder to maintain the apartment and its amenities.

Most developers provide a corpus fund for the maintenance of the apartment and its amenities.

The builder collects maintenance fund from each buyer which will not be shown in basic sales price of an apartment.

The maintenance fund collected from each apartment owner is deposited as a corpus fund.

When the contractual obligations of the builder have been completed, the buyer will receive a notice of completion and a final payment claim.

In case possession of the flat is not offered to the buyer within the period specified by the builder, the buyer shall be entitled to receive compensation.

The maintenance will be carried out by the Builders till the formation of the Apartment Owners Association

In many cases, the builder keeps all income generating areas with them though the flat owners have paid for these areas.

The builder has to handover the corpus fund and all common facilities to the apartment owners association.

The Act gives apartment owners alone the right to generate income from common areas and facilities in the apartment.

After the formation of the RWA or apartment owners association, the builder has to handover the maintenance fund or corpus fund to the apartment owners association.

T Kalaiselvan
Advocate, Vellore
58862 Answers
745 Consultations

5.0 on 5.0

We have paid one year maintenance following our property registration on April 2016. However as per promise of completing the pending activities on time, builder is not taking any serious note to them now and hence most of the amenities are not in place yet and still in work in progress or almost on hold. Despite repeated complaints, the builder is taking deaf ear to our concerns now.

When the contractual obligations of the builder have been completed, the buyer will receive a notice of completion and a final payment claim. In case possession of the flat is not offered to the buyer within the period specified by the builder, the buyer shall be entitled to receive compensation. Before handover of the flat, the builder has to get a completion certificate and No objection certificate from the concerned department. The certificate is issued by the municipality only if the project complies with the approved plan. A completion certificate is necessary to register your house, get utility connections and even resell the flat. However, while handing over the possession of the apartment, the complete list of fittings & fixtures shall be handed over to the buyer. Once the payment has been made, the builder will give the client possession together with the keys and warranties.

My question in this situation is -

1. Per law, can builder stop maintenance without providing allotment or possession letter and in such a situation when many pending activities are yet to be completed?

It is the builder's responsibility to complete the pending works or else you can draw him to consumer forum for deficiency of service.

2. There is no clear schedule mentioned in the agreement or conveyance deed as to tentative project completion or possession date neither mention of period as to when purchasers are liable to bear maintenance charges.

once an association i s formed then the builder's responsibility will cease however a minimum two years maintenance should be done by the builder

T Kalaiselvan
Advocate, Vellore
58862 Answers
745 Consultations

5.0 on 5.0

The builder or the association should undertake the responsibility of maintenance

The builder's responsibility is that he has to complete all pending works and pay and settle all the dues with regard to maintenance of the apartment complex before handing over the charge of the apartments to the association.

The builder cannot wash away the responsibility of maintaining the building within one year from the date of completion.

He can be sued for damages through consumer forum

T Kalaiselvan
Advocate, Vellore
58862 Answers
745 Consultations

5.0 on 5.0

If the builder is bound by the agreement to make the completions than in such event the builder is certainly at fault. In such circumstances the builder cannot. You should move the court immediately against the builder.

Sanjoy Bose
Advocate, Kokata
17 Answers

4.0 on 5.0

Again most important document is agreement between you and builder. Also why didnt u all formed a society ? I need to check in details the agreement copy then only will be able to guide u exactly if any clause is in our favour.you may mail me the copy of that with any related correspondence etc.

Vijay Kumar
Advocate, Mumbai
26 Answers

4.0 on 5.0

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