• Maintenance charge Housing Society

I have an Penthouse apartment in Bangalore with Built up area of 2500 ft, Terrace 2000 sft and garden area of 200 sft at 7th floor and terrace is on 8th floor with entry from inside of apartment and also from 8th floor and terrace has parapet wall all-around. There is one more Penthouse on the same floor.
Also,there are 4 apartments on each floor i.e. from first floor to 6th floor. In summary, 4 x 6 = 24 apartments of 1100 sft -1200 sft and 2 penthouse each 2500 sft + 2000 sft terrace + 200 sft garden area. Total 26 apartment in one block having 2 or 1 penthouses.
This apartment complex has similar configuration having 6 blocks ( A to F Blocks)
Society is using maintenance fee based on sft for common area, thus favoring majority (93%) of owners having smaller sft apartment and this was set up society not understanding that it is illegal as per Karnataka law.
On top, I am also additionally charged for 50% area of my open terrace and garden area ( 20000+200) = 1000 sft.basically , I am charged for 3600 sft which is almost 3 times of one apartment in each floor.
Can you please guide me on this so that I can educate all of them to apply maintenance fee for common area,facility etc to be same for all owners irrespective of apartment size and also charge of penthouse terrace attached to my apartment which i have purchased and reverse all additional maintenance fee paid.
I will appreciate your response and guidance as per Karnataka Housing law.
Asked 5 years ago in Property Law
Religion: Hindu

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8 Answers

Under the Karnataka Apartments Act, every apartment is to be considered as a single unit irrespective of its size together with common undivided interest in the common areas and amenities. Moreover, the undivided interest in the appurtenant common areas and facilities which an apartment owner enjoys cannot be separated from the flat(apartment) which he/she owns. Meaning thereby, all the apartment owners in a society have an undivided and common interest in the area and facilities which are to be equally and jointly enjoyed by all. Thus, it cannot be said that the stake of the owners of a bigger flat vis-à-vis the stake of an owners of smaller flat, in the common areas and facilities differs. 

Even under in the rules framed under the Apartment Act, a provision has been included to levy monthly maintenance charges from all the flat owners; whereas no formula has been prescribed for levying the same. Thus, going by the spirit and intent of the Karnataka Apartment Act, it is clear that the flat owners cannot be charged monthly maintenance charges on the pro-rate basis depending upon the size of the flats owned by them. In any case, the said exercise would be discriminatory and violative of fundamental rights of such flat owners who own a dwelling unit (flat) bigger in size in comparison to owners of smaller flat. 

Vibhanshu Srivastava
Advocate, Lucknow
9631 Answers
303 Consultations

5.0 on 5.0

1. Maintenance for the common area is to be equally borne by all the appartment owners since its use is not dependent onte sizes of the appartments.

 

2. You can first lodge a complaint to the Registrar of  Societies seeking relief and in case he does not respond or act, file a Writ Petition before the High Court against the inaction of the Registrar praying for an order upon your Society to charge maintenance as per the prevailing law. 

Krishna Kishore Ganguly
Advocate, Kolkata
27245 Answers
726 Consultations

5.0 on 5.0

Maintenance of all members should be equal irrespective of size of flat 

 

2) water charges would depend upon number of inlets in the flat 

 

3) the bye laws adopted by the society or association would contain detailed clauses regarding recovery of maintenance from flat owners 

 

4) Venus Co-operative Housing Society Ltd. v. Dr. J.Y. Detwani reported in 2004(5) Mh.L.J. 197 = 2003(3) All. M.R. 570. 6. In case of Venus Co-operative Housing Society the flats of different sizes, 284 small flats with two bedrooms and 39 large flats with four bedrooms. The society passed a resolution levying the different maintenance charges as per the area of the flats and issued a circular to that effect to members. Disputants who were the holders of the larger flats challenged the circular as also the resolution by filing a dispute under Section 91 of the Act before a co-operative Court. The co-operative Court declared the resolution of the society to be illegal and not binding on the disputants. The decision of the co-operative Court was confirmed by the appellate tribunal. The order was impugned by the society by way of a Writ Petition. This Court held that the resolution of the society levying differential charges on the basis of the area of the flats was arbitrary, unreasonable, without any rational and without any source of power. It held that services of the society were enjoyed by all the members equally and there was no reason for the society to make the large flat holders pay more on the basis of the area of the flats. It held that though the supremacy of the general body cannot be doubted, even the supreme general body had to pass resolutions considering all facts and circumstances of the matter. The general body cannot pass arbitrary and unreasonable resolutions merely because it is supreme and it has a large majority in favour of any issue on the agenda.

Ajay Sethi
Advocate, Mumbai
95168 Answers
7604 Consultations

5.0 on 5.0

Sir it is not agains the law the maintenace can be either calcualted based upon membership or per sq foot basis that is area no where iin the law the society is forbiden for collecting maintenace on this basis. There is provision supporting there method in the Karnatka Apartment ownership act,

Shubham Jhajharia
Advocate, Ahmedabad
25514 Answers
179 Consultations

5.0 on 5.0

Generally monthly maintenance is paid as per the resolution passed by the Committee which is either a Fixed amount or based on size/sq ft. 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

Hello,

You may also gainfully refer to the judgment passed by the Hon’ble Bombay High Court in the case of Venus Co-operative Housing Society Ltd. vs. Dr. J.Y. Detwani [reported in 2004 (5)MhL.J. 197 : 2003(3) All. M.R. 570), wherein it was held that because the services available in a society are enjoyed by all the members (flat owners) equally, there is no reason for the society to make large flat owners pay more on the basis of their flat area.

If the charges are being levied on the basis of the area covered then the same is illegal and you may raise the grievance for the same before the authority. Specific law in relation to KHB can be told to you by a local advocate. 

Such action in general is wrong. 

 

Regards 

Anilesh Tewari
Advocate, New Delhi
18079 Answers
377 Consultations

5.0 on 5.0

1. you are correct. Maintenance has to be computed always on per unit basis and not on basis of area

2. the reason is simple - both unit holders of small and big apartments respectively are using the various services offered by the society EQUALLY

3. it is not that the unit holders having bigger apartments are given more services or that unit holders holding smaller apartments are given lesser services

4. all members, regardless of the size of their respective units, have to be treated equally 

5. for example, suppose there is a fire in society building. Now will more water be sprinkled (from society's fire fighting equipments) on units of bigger area just because they pay more? or will lesser water be sprinkled to douse the fire on the units having smaller area just because they pay less?

6. taking another example - society must have deputed security. Now will the security person offer more security to the holders of bigger units and lesser security to holders of smaller units?

7. thus such a discrimination would certainly be illegal

8. just because the holders of bigger units have bigger apartments, does not mean that they will be penalised by requiring to pay more and make up for the holders of smaller units

9. that defeats the co-operative movement under which a society is in the first place registered

10. only property tax can be charged on area basis. Water charges would depends on number of inlets to every apartment. Rest all services are to be charged equally by society

11. this issue has been also addressed by the Bombay High Court in Veena CHSL matter and this decision still holds good as it has not been challenged or overturned in any appeal and thus forms a good precedent

12. you can make the payment towards maintenance wrongly charged by society on area basis on a 'WITHOUT PREJUDICE' basis and 'UNDER PROTEST'

13. Always make payments as above under cover of your letter and also inform the society that if it does not relent then you will be compelled to take necessary legal steps to recover the excess maintenance paid by you with interest at some reasonable rate

14. you can also address a letter to the District Deputy Registrar of Co-operative Societies for necessary direction to the society

15. if the officer above does not redress your grievance you will have to file a dispute case in a Co-operative Court having jurisdiction over your society 

Yusuf Rampurawala
Advocate, Mumbai
7553 Answers
79 Consultations

5.0 on 5.0

Maintenance charges or service charges are levied by all cooperative housing societies to cater for expenses incurred. The basis on which the society charges will be shared by each apartment unit is decided by the Cooperative Housing Society.

Housing societies have the option of charging their maintenance charges in either per square feet or per flat basis. Regulations in most states are not clear, but the model bye-laws of MOFA provide a simple solution. As per the Act, each housing society must follow a combination of per sq ft and per flat for various heads. There are however some exceptions as Co-operative Housing Socities (CHS) are not allowed to levy maintenance charges based on the area of flat of members under MOFA. This was clearly mentioned in the judgment following a writ Petition of Venus CHS Ltd and another, when the cooperative housing society wanted to switched from flat-wise monthly charges to area-wise monthly charge

 

While the common norm was to pay an equal fee, the argument for paying per square feet is quite strong in societies with larger differences in the apartment sizes. So, depending on these situations, there are three common methods of deciding apartment maintenance charges:

a)Per Square Feet Maintenance Charges: In societies that have a greater difference between the apartment sizes, this method is commonly used. It means, the charges would be divided into the square feet charges, and the owners can pay according to what their apartment size is.

 

b. Equal Apartment Maintenance Charges: This method is common when all the apartments are roughly around the same size. 

 

c. Hybrid Maintenance Charges: Sometimes, there are cases where both the aforementioned ways to charge become unfair in some or the other way. In that case, the hybrid calculation method is used. 

Every housing society has some common areas and as per the Real Estate (Regulation and Development) Act or RERA (well, even before the Act came into existence), the promoter or the builder is responsible for providing and maintaining essential services on reasonable maintenance charges to be paid by the residents.

T Kalaiselvan
Advocate, Vellore
85369 Answers
2231 Consultations

5.0 on 5.0

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