• Flat possession letter and maintenance charge dispute

I am currently staying in a residential complex in South Kolkata, 21A Puddapukur Road, Kolkata 700047. My flat registration was done in April 2016 and Completion Certificate was received on Sep 2016. At that time there were some pending construction and renovation work (like boundary wall repair, driveway repair, community hall completion, proper water filtration erection, fire equipment installation) which were required to be completed by the concerned builder, however many are still not completed and work is in progress. We had to do the registration process then to get the home loan approved since builder claimed that the flat to be in ready to move in condition. Hence as demanded by builder, the payment had to be done in full and not construction phase wise. 

We started living in the flat with builder's consent from May 2016 onwards with the promise that all pending work mentioned previously will be completed within 3-4 months. We already paid all the extra charges for amenities including other components like association formation, sinking fund, electric meter, drainage etc. Since then and till date there have been little progress and builder cannot promise a tentative completion - looks like as if it can continue for indefinite period of time. Moreover the Association formation is still not done by builder. I have also not received a possession letter yet, while some other residents got that.

Amidst this uncertain situation the builder is now forcing me to pay the Maintenance charges (along with 18% GST) from Oct'17 onwards arguing that all purchasers are liable to takeover the maintenance after 1 year from CC date and that the builder will not take responsibility of maintenance going forward. When I asked for Possession letter, the builder is trying to provide me a letter with back date, that is, Sep 2016. There is a clause in the agreement that the extra amount that we paid to builder will cover 12 months' maintenance from the Date of Possession, but no mention that purchasers will be liable to pay after that. The builder is not cooperating us to complete the association registration process claiming they do not have time to submit the documents to the concerned authority - and that they can only sign the papers wherever required, hence it the responsibility of flat owners to get this done on our own.

Looking at the above situation I have below questions
1) Am I liable to pay the maintenance fees to the builder (since association is not registered yet) as demanded?
2) Can I allow the builder to give me a Possession Letter signed with a back date as of Sep 2016?
Asked 4 years ago in Property Law
Religion: Hindu

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16 Answers

after possession of flat has been taken by you then you are liable to pay maintenance charges

2) if builder is not forming cooperative society file complaint against builder before consumer forum seek orders to direct builder to form cooperative housing society , complete pending work

3) take back dated possession letter

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

1. I am unable to understand how despite the completion certificate, there is still some pending. A completion certificate means that the building is complete in all respects and ready to be occupied.

2. Whatever you may have agreed in your agreement or any other paper or writing, just remember one thing clearly - YOU ARE LIABLE TO PAY THE MAINTENANCE CHARGES FOR YOUR FLAT ONLY UPON BEING PUT IN POSSESSION OF THE FLAT.

3. The builder is trying to act smart with you by giving you a back dated possession letter so that you are required to shell out more towards maintenance.

4. Tell the builder to mention the actual date on which he handed the possession to you in the possession letter. If he is not agreeable then you simply sign that letter and immediately simultaneously address a letter to the builder stating therein the actual date of possession and also stating that the possession letter issued to you by the builder is incorrect and you were made to sign that letter under undue influence. Basically deny the correctness of the possession letter.

Now coming to your queries:

1. Payment of maintenance charges is not dependent on society formation. The moment you are handed actual possession of the flat, you become liable to bear all its outgoings.

2. Definitely no. Tell the builder to state the actual date of possession in that letter.

Also bear in mind that the builder is not required for society formation. If the requisite number of buyers have bought the flats, they can come together and form a co-operative housing society or any other association.The builder will be required when the conveyance of the plot and building is to be done in favour of the society. For that too there is a stipulated period given in RERA and non-compliance of the same would render the builder liable to face the legal consequences for violation of the provisions of RERA.

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

You have not mentioned the Occupation Certificate.

If you have not received the OC, then you can do the following:

1. You should collect the papers evidences relevant to your case;

2. You should collect evidences of advance payment made by you, including the agreement copy, make sure it is

signed by both the parties, the banking transaction showing that you paid the advance amount for the

booking;

3. You should write a personal letter to the the builder asking him to not back out from the transaction and hand

over the possession, otherwise you could take legal steps;

4. If they still don’t respond, then issue a legal notice through a lawyer to them stating that you have been

wrongfully been cheated by the builder;

5. Since the OC has not yet come, you can also file a complaint before the RERA authority if the project is RERA

registered;

6. Then last stage you can file a case in court whether a suit or consumer forum or an FIR in police station

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Hi. Sorry for certain typos in the above response. I was just going to edit the reply, but it already went through.

Anyway, coming to your query - ask the builder to put the date of CC as the date of handover of possession in the possession letter

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

possession can be after building is completed . hence September 2016 would be the logical date

Ajay Sethi
Advocate, Mumbai
87947 Answers
6207 Consultations

5.0 on 5.0

Madam/Sir,

Since the association is not registered, I would advise you not to pay maintenance. Please record all the things you are saying by writing letters to the promoter and sending the same by post. You may send a legal notice to the promoter And on his failure to comply, you can approach the consumer forum for relief and for compensation. Please feel free to get in touch with us for further details.

Abhishek Dutt
Advocate, Kolkata
31 Answers
1 Consultation

4.0 on 5.0

In answer to the below questions:

1) Am I liable to pay the maintenance fees to the builder (since association is not registered yet) as demanded?

No you are not liable to pay maintenance fees to the builder. Till the time possession is not handed over to you, your are not liable for paying maintenance.

In the case decided by the National Consumer Disputes Redressal Commission in the matter of Runwal Developers Pvt. Ltd. and Another Vs. Dinesh Hegde and Another, whereby it was inter alia observed that the flat purchaser shall be required to pay maintenance charges only when the possession of the flat has been given to him.

Similarly in the case of, Hermione Mary Salazar vs Mr. Anthony H. Silva, the State Consumer Disputes Redressal Commission reiterated the importance of section 6 of MOFA and protected the rights of the allottee regarding the payment of maintenance

Even The Maharashtra Ownership Flat Act, 1963 casts the obligation on the Developer to pay the outgoings in respect of a Flat/unit until handing over the same to the purchaser.

2) Can I allow the builder to give me a Possession Letter signed with a back date as of Sep 2016?

If the builder is ready to give you the possession letter, then it is ok. But the builder is liable for all the wrongful acts. You can seek compensation for his misdeeds by filing a case in the Consumer Court.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

1. You are not liable to pay the maintenance now for various reason as under;

a. the construction of the flats and the complex with all the facilities as confirmed earlier have not yet beem completed

b. you have not yet got the possession in writing. If you get a back dated possession letter put the actual date of receipt thereupon.

2. You can not refuse to receive any letter from your builder but you should sign the letter as a token of your having received the same putting the date of its actual receipt.

3. All the flat members can bring the appropriate form from oder Court and get the association registered yourself without depending on the builder.

4. If the builder still refuses to complete the flats and the complex, file a complaint case before your location District Consumer Dispute Redressal Forum against the builder alleging deficiency in service and unfair business practice claiming completion of the flats and the complex with in next one month and in case of failing to do so, file a penalty of Rs.1 K per day till the order is implemented.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

1. With out having the completion certificate, the builder is not expected to handover possession to you.

2. Any day after the date of the possession letter should be the logically appropriate date for taking possession of the flat.

3. The construction of the flat as well as the complex is not yer over, file the complaint case as suggested in my earlier post.

Krishna Kishore Ganguly
Advocate, Kolkata
26603 Answers
726 Consultations

5.0 on 5.0

Hi,

It is suggested not to give accept and forged or wrong document which is signed for back date intentionally. You are suggested to be strong against the builder and ask him to complete the pending works including society registration.

Ganesh Singh
Advocate, New Delhi
6646 Answers
16 Consultations

4.5 on 5.0

The Builder is not entitled to get maintenance only after issuing of completion certificate unless and until the work is completed on the ground. You said that some amenities  are still incomplete and construction is going on therefore the Builder is not entitled to get maintenance. You should challenge the completion certificate before the consumer forum or if property is registered under the rera act then before the chairman of rera authority. 

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

That possession letter is illegal in the eye of law, because the flat is not in inhabitable condition and the amenities claimed by the Builder is still incomplete. It is possible that builder will not complete the amenities and take maintenance from the flat owners therefore you should challenge the possession letter and completion certificate for the concerned authority.

Shivendra Pratap Singh
Advocate, Lucknow
5127 Answers
78 Consultations

4.9 on 5.0

Till time possession is not handed over to you you are not liable to pay maintenance. Better approach consumer forum file a complaint against builder seeking for damages for the works not completed by him.

Regarding second query if the builder is ready to hand you over the possession of property you can take a back dated letter. But he needs to give you completion letter too.

Swarnarka Chowdhury
Advocate, Mysore
1878 Answers
5 Consultations

5.0 on 5.0

Looking at the above situation I have below questions

1) Am I liable to pay the maintenance fees to the builder (since association is not registered yet) as demanded?

Most buyers do not pay much heed to maintenance charges in the initial stage of booking, but it comes back to haunt them as the possession date nears.

The promoter or the builder is responsible for providing and maintaining essential services on reasonable maintenance charges to be paid by the residents.

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.

The developers can't charge maintenance charges arbitrarily. Even though many state governments have made rules regarding such charges, the most effective and useful legislation that provides clear guidelines is from the state of Maharashtra."

2) Can I allow the builder to give me a Possession Letter signed with a back date as of Sep 2016?

The builders may ask for 12 months, or 24 months, of maintenance charges in advance at the time of possession. Once handed over to the RWA, the frequency of collecting the maintenance charges is decided by it.

Therefore if the builder states that the possession letter will be given from the date of occupying the flat, then you may calculate maintenance only for 12 months from that date and ask him to handover the same to RWA which will collect the maintenance after that.

For all the possibilities you must escalate the matter legally by first issuing legal notice to the builder against all his atrocities and agitate or object to his unreasonable demands.

T Kalaiselvan
Advocate, Vellore
78105 Answers
1543 Consultations

5.0 on 5.0

If you are worried about the possession letter, which is just mere paper formality, you should not have occupied the flat without completion of all other related works.

You cannot speak law now when you have hurriedly occupied the premises without bothering about the the law hat you talk now.

Your act clearly indicates that you have accepted the flat as is where is condition and it can be construed that you have admitted the completion of construction now claimed by the builder.

Actually when the builder should obtain CC and OC from the competent authority, handover possession by proper possession letter after executing the registered sale deed.

You never cared about the law at the time of occupying the property hence the builder is taking advantage of this weak situation.

No doubt that is not an end, you may initiate proper legal action through consumer forum even now for the deficiency of services by the builder.

You can initiate the process through a local advocate.

T Kalaiselvan
Advocate, Vellore
78105 Answers
1543 Consultations

5.0 on 5.0

1. No

2. No don't receive backdated letter.

You can file a consumer complaint and prosecute the builder for defiency in service.

Prashant Nayak
Advocate, Mumbai
27275 Answers
88 Consultations

4.4 on 5.0

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