• Society charging maintenance

Hi, my building doesnt have an OC but the residents have formed the society and taken over the building from the builder and are now running the affairs of the society. Can the society charge maintenance from owners who have not taken possession till date? 
A resolution was passed in the special general body meeting of the society to charge maintenance from all the owners even if possession not taken from the date the society was registered, is this legal? Some members who have not taken the possession of their flats from builder are arguing to initiate a legal action against the society if they are charged maintenance before they take the possession of their flats. Can they legally do this?
Asked 3 years ago in Property Law
Religion: Other

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16 Answers

1) builder can deliver possession only after OC is issued

2) you are not liable to pay maintenance

3) take legal proceedings against society for recovering maintenance from them when possession has not been delivered

Ajay Sethi
Advocate, Mumbai
82706 Answers
5254 Consultations

5.0 on 5.0

1. Generally when the builder completes the construction, he will issue a notice to the flat buyers to take possession of their respective flats within the notice period stated in the notice.

2. In the event the flat buyers to whom the aforesaid notice to take possession is given, do not come forward to take possession, then regardless of they not having accepted possession, they will become liable to bear the outgoings of their respective flats, from the date of expiry of the notice.

3. If the builder has not formed the society, such outgoings will have to be paid to the builder.

4. Once society is formed, the outgoings will have to be paid to the society.

5.The builder must have collected money in advance from the flat buyers towards their monthly maintenance charges. On formation of society, that amount will need to be transferred by the builder to the society.

6. That amount can be applied by the society towards the maintenance charges of the flat buyer and the buyer will be liable to pay further outgoings to the society after his deposit is exhausted.

Yusuf Rampurawala
Advocate, Mumbai
6201 Answers
50 Consultations

5.0 on 5.0

Society cannot take maintenance charges from those flat owners who have not been taken possession of the flats. This act of society is illegal and it is liable to be set aside. You should file an application before the society registrar against the resolution passed by the society. The society Registrar have power to set aside any resolution passed by the society which is not tenable in the eye of law.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

1) society should recover maintenance charges from the builder

2) it cannot be recovered from flat owners who have not taken possession of flat

Ajay Sethi
Advocate, Mumbai
82706 Answers
5254 Consultations

5.0 on 5.0

I would suggest the following:

1. Only after OC is issued then only can the builder deliver vacant possession of the flat to the respective owners;

2. Since the society is charging you personally ask the society to collect the maintenance from the builder;

3. You can send a legal notice to the society and request them to cancel the maintenance;

4. You can further approach ROC or the State Consumer Redressal forum.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

1.If OC is not received then the buyers refusing to accept possession are right on their part.

2.You cannot demand maintenance charges from them just because you have formed a society.

3. Those buyers must have already paid deposits to the builder to take care of the maintenance charges.

4. If you want to claim maintenance from the buyers who are 'rightly' not accepting possession without OC, then you are wrong.

5. You will have to make such demand to the builder. This will also ensure that the builder is pressurised to get the OC or take the liability of incurring the maintenance charges of the flats of which possession is not taken.

6. The society cannot make liable the flat buyers who have rightly refused to accept possession without OC.

7. Please bear in mind that the flat buyers become liable to bear the maintenance charges only upon taking possession of the flats. If the flat buyers refuse to accept possession for some whimsical reason, then they are deemed to have accepted possession on expiry of notice period. However if their refusal is justifiable and legally tenable, like in your case, then the society cannot pass any resolution requiring such buyers to bear the maintenance charges. That attempt by the society will face legal challenge and rightly so.

Yusuf Rampurawala
Advocate, Mumbai
6201 Answers
50 Consultations

5.0 on 5.0

I would like to explain that taking possession over the property and issuance of possession letter are two different things. If builder has issued possession certificate then flat owners are bound to pay maintenance charges as fixed by the society. If possession letter/possession certificate has not been issued then society cannot recover maintenance charge from those flat owners who have not taken possession over the property.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

Maintainence can be charged only from members of the society. As you have not taken possession you are not a member and so no maintainence can be charged to you. You can file complaint before appropriate forum for OC against builder. You can legally refuse to take possession before OC

Amit Pai
Advocate, Mumbai
53 Answers
3 Consultations

4.4 on 5.0

Respected sir,

1) without OC there is no legal possession on the flats and society, so the society cannot be formed without a legal possession so you are not liable to pay any maintenance.

2) Complaint the registrar of society that society is not legal and cannot collect such maintainance.

Shubham Jhajharia
Advocate, Ahmedabad
25521 Answers
135 Consultations

5.0 on 5.0

This procedure is totally wrong without OC.the possession is not allowed and without possession legal how can there be society the society is not legal and you can give them.notice to same effect and complaint the same to registrar of societies that since no OC there cannot be any member to the society and society cannot be formed.

No you cannot charge neither you can deduct from the new buyer he shall be liable from the date he takes possesion now.only builder is liable to pay maintenance charges.

This collection is.illegal and action can be taken agaisnt all people forming society without. Legal occupation and registration.

Shubham Jhajharia
Advocate, Ahmedabad
25521 Answers
135 Consultations

5.0 on 5.0

Even if the possession is not taken the maintenance is payable by the owner and this is legal and if anyone wants to go legal let them go.

The property tax will be charged from the date of registration of the property by the municipal authority from the individual owners not by the society.

The residents may form the society and get it registered with the registrar and form the management committee for the collection and maintenance of the society.

The society is governed from its bye laws and a model bye law is available with the apartment act of Maharastra you may adopt that in SGM and send a copy of adopted bye law along with the minutes of meeting to the registrar for his record.

Vimlesh Prasad Mishra
Advocate, Lucknow
6829 Answers
23 Consultations

4.9 on 5.0

Hi,

As per the natural justice, the person who has not got possession, can't be charged the maintenance amount. The maintenance etc. charges can be taken from the date of possession and not prior to that.

Ganesh Singh
Advocate, New Delhi
6616 Answers
14 Consultations

4.5 on 5.0

If the property has not been registered on your name neither you have taken possession then it would be unjustifiable to demand maintenance charges from you.

Once the society's Resident Welfare Association (RWA) is formed, and the maintenance work is handed over to it, the builder can no longer charge for maintenance. RWA can then devise its own set of rules for maintenance charges.

The maintenance charges are applicable from the date the possession letter is issued. Thus, irrespective of the fact whether you have occupied the property or not, you are liable to pay these charges.

T Kalaiselvan
Advocate, Vellore
72791 Answers
1111 Consultations

5.0 on 5.0

Can we deduct maintenance charges + property tax from the amount that will be deposited by the new buyer to the society at the time of taking the handover of his flat from the builder from the date the society was registered?

The maintenance charges are applicable from the date the possession letter is issued. Thus, irrespective of the fact whether you have occupied the property or not, you are liable to pay these charges.

The builder while whileforming RWA, be sure that either they should be deed holders or genuine residents and holder of possession letter . As in continuation of their farce, the builders create a fake RWA, and hand over the complex to their own employees or henchmen who are nominated as apartment owners in the RWA. In most of the cases no Deed of Apartment is executed; it is the only valid document that gives you the lawful ownership of an apartment,

T Kalaiselvan
Advocate, Vellore
72791 Answers
1111 Consultations

5.0 on 5.0

You can't take permanent possession without final oc from the municipal corporation. You can initiate proceedings against the secretary and managing committee members for such illegal action. Earlier society was not registered without oc and cc but after maharastra co-operative department circular it was made a rule that society can be registered without oc. However it at buyers risk if possession is taken without oc. You can deny to take possession without oc. If you take the possession without oc it's at your own risk.They can't charge you illegal maintenance.

Prashant Nayak
Advocate, Mumbai
23442 Answers
49 Consultations

4.4 on 5.0

1. Society CANNOT charge maintenance from non-members and from Flats which are still in the custody of the builder.

2. Society charges have to be equally divided between the registered members and not from un-sold flats.

Keep Smiling .... Hemant Agarwal

Hemant Agarwal
Advocate, Mumbai
5546 Answers
25 Consultations

5.0 on 5.0

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