We are an apartment registered under Karnataka 1960 act and we have our bye-laws. As per the bye-laws, we have a vote share of maximum 1 vote per unit. This was also because we had a gentleman's agreement to use a hybrid model for corpus (divided by total flats) + maintenance (per sqft). We have 2BHK + 3BHK units in our apartment and the number of 2BHK units outnumber the 3BHK units. Unfortunately, recently there have been voting items put forward where the general feeling is that one unit type is benefitted and the other disadvantaged. Since everyone votes with their own financial interests kept first, the ratio of one unit type to the other determines the majority. Now we are getting registered under 1972 act which states all profits and losses will be shared proportional to UDS (undivided share). However the association is pushing a bye-law that again restricts voting to 1 per unit. In my opinion this is unfair and illegal. Clearly in 1972 act, and 1974 rules exhibit B, it is mentioned that voting share is on a percentage basis proportionate to the undivided interest (UDS). Also I don't see a provision to override the voting rights via bye-laws - other things like maintenance model, quorum etc can be changed as per section 16 (2) of 1972 act. Can this (voting percentage) be simply over-ridden by submitting bye-laws along with DoD for 1972 registration? Can this be contended / stayed? Also is it legal to even do such a thing i.e. charge money for expenses (maintenance) as per UDS, while giving disproportionate voting rights? Does 1972 act allow this? What are my legal options to get this fixed and get my voting rights back? Consider that there is an Advocate with my apartment association to prepare the DoD for 1972 registration, but it may be his office staff who just drafted the DoD in current form, copy pasting content from old bye-laws without checking legality under 1972 act.
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Voting percentage would be proportionate to undivided share
2) bye laws cannot over ride provisions of act
3) you must oppose adoption of bye laws that give one vote for one apartment
4) you can take legal proceedings to challenge bye laws adopted by the association
Dear Sir,
The following clarifies voting under KAOA 1972.
It is very tempting to imagine that each owner gets one vote, in true democratic fashion; regardless of the relative size of his apartment.
But in reality, KAOA clause 11(f) lays down the requirement for voting as follows:
value of the property and of each apartment, and the percentage of undivided interest in the common areas and facilities appurtaining to each apartment and its owner for all purposes, including voting...
In other words, it specifies that the voting rights shall be in proportion to the %UDS.
This is further elaborated in KAOR Clause 9 of Exhibit B (model Bye-laws)1, which states that-
Voting shall be on a percentage basis, and the percentage of the vote to which the owner is entitled is the percentage assigned to the family unit or units in the Declaration.
Thus people who own a larger share of the property will have proportionally more voting power.
Note that each owner has some percentage votes, not countable votes!
1Although the “Exhibits” are non-mandatory part of the law, they reflect the original intent of the architects of the law. Further, if you do not follow that example, you risk violating the Act, Rules or an affiliated Act/Rules. Therefore it is best to strictly follow the examples set in Exhibits.
Next, the question of voting rights for owners of multiple apartments:
Both KAOA clause 11(f) and KAOR Exhibit B, clause 9 specify that the voting right for each apartment must be recorded in a Schedule (table) in the DoD.
This figure is not affected by the identity of the owner. In fact, the DoD is not supposed to have any personal identities or particulars of the owners at all.
Therefore, if a person buys multiple apartments, he will acquire the UDS percentage and voting percentage assigned to those individual apartments, and enjoy them collectively.
Bye laws are always to be made keeping in mind the principle act otherwise they are illegal and cannot stand legal ground and same are liable to be challanged.
According to section 11(f) of karnataka apartnent ownership act (f) value of the property and of each apartment, and the percentage of
undivided interest in the common areas and facilities appurtaining to each apartment
and its owner for all purposes, including voting; and a statement that the apartment and
such percentage of undivided interest are not encumbered in any manner whatsoever on
the date of the Declaration;
Also under section 16 content of bye laws is mentioned there is no mention of amending voting provision is mentioned so the act of changing voting rights is illegal.
So the voting rights will be based on USD.
16. Bye-laws and their contents.- (1) The administration of every property shall be
governed by bye-laws, a true copy of which shall be annexed to the Declaration . No
modification of or amendment to the bye-law shall be valid, unless set forth in an
amendment to the Declaration and such amendment is duly recorded and a copy
thereof is duly filed with the competent authority.
(2) The bye-laws shall provide for the following matters, namely:-
(a) The election from among the apartment owners, of a Board of Managers, the
number of persons constituting the same, and that the terms of at least one-third of the
members of such Board shall expire annually: the powers and duties of the Board; the
compensation, if any, of the members of the Board; the method of removal from office of members of the Board; and whether or not the Board may engage the services of a
Secretary, a Manager or Managing Agent, and specifying which of the powers and
duties granted to the Board by this Act or otherwise may be delegated by the Board to
either or both of them;
(b) method of calling meetings of the apartment owners; what percentage, if
other than a majority of Apartment Owners, shall constitute a quorum;
(c) election of a President from among members of the Board of managers who
shall preside over the meetings of such Board and of the Association of Apartment
Owners;
(d) election of a Secretary who shall keep a minute book wherein resolutions
shall be recorded;
(e) election of a Treasurer who shall keep the financial records and books of
accounts;
(f) maintenance, repairs and replacement of the common areas and facilities
and payments therefor;
(g) manner of collecting from the apartment owners their share of the common
expenses;
(h) designation and removal of persons employed for the maintenance, repair
and replacement of the common areas and facilities;
(i) the method of adopting and of amending administrative rules and
regulations governing the details of the operation and use of the common areas and
facilities;
(j) such restrictions on the requirements respecting the use and maintenance
of the apartments and the use of the common areas and facilities not set forth in the
Declaration, as are designed to prevent unreasonable interference with the use of their
respective apartments and of the common areas and facilities by the several apartment
owners; and
(k) the percentage of the votes required to amend the bye-laws.
(3) The bye-laws may also provide for the following matters namely:-
(a) subject to the provisions of this Act, provision for regulating transfer or
partition of any apartment and percentage of undivided interest in the common areas
and facilities appurtenant to such apartment, subject to such terms and conditions as
may be specified in the bye-laws:
(b) provisions enabling the Board of Managers to retain certain areas of the
building and lease to non-residents for commercial purposes and for distribution of
resulting proceeds to the apartment owners as income or application thereof in reduction
of their common charges for maintaining the building; and
(c) any other provisions, not inconsistent with the provisions of this Act, relating
to the audit and accounts and administration of the property and annual and special
general meetings, annual report and the like.
So under the act under section 16 under bye laws there is no specific mention of changing voting rights. So no it cannot be changed.and proviso (c) specifically mention there shall be no contravention to the act in bye laws.
The voting rights will be based on UDS. You can bring a stay on bye law as it cannot over ride the act. You can challenge the bye law adopted by the association.
Section 11(f): Contents of Declaration.
value of the property and of each apartment, and the percentage of
undivided interest in the common areas and facilities appurtaining to each apartment
and its owner for all purposes, including voting; and a statement that the apartment and
such percentage of undivided interest are not encumbered in any manner whatsoever on
the date of the Declaration.
You need to opppose pushing of bye law that restricts voting to 1 per unit. As voting right as per above provision is proportionate to the percentage of UDS.
If your apartment association was already registered under one act, it is not necessary for second registration under any other act.
Also this decision cannot be taken by an individual or certain group of people or office bearers.
This has to be decided by passing resolution supported by majority members.
If aggrieved over the decision taken by the body on this, you may aproach either consumer forum or civil court with a suit for permanent injunction on this.
