We had asked a question a few days back but we received mixed and varied responses. May be the question was not complete. So putting the original question link here for reference and adding all details again with some additional questions. Link of Original Question Asked - https://www.kaanoon.com/270725/changing-from-apartment-condominium-to-housing-society 1. Our Society is an old property built in 2005 2. Our builder has done the Deed of Declaration dated - 7/10/2009 under section 2 of Maharashtra Apartment ownership Act, 1970 and has formed a condominium of the flat purchasers under the name of SUROBHI TOWNSHIP APARTMENT/CONDOMINIUM 3. To this effect, out of existing 168 apartments close to 95 have executed their individual Apartment Deeds. (Around 60%) 3. The builder wants to handover the accounts and had asked us to create a committee 4. But since most of the residents want a housing society, we have not created a committee and have not taken the handover of the accounts as some feel that creating a committee will legitimize the condominium and we will not be able to proceed for Society Formation 5. The builder is still constructing the last wing (G wing). We have total A,B,C,D,E and F wings currently. Recently, in 2018, an amendment was passed for 1970 apartment act, which says that with 51% approval, the apartment holders can come out of the Apartment act and form a Society. Original 1970 Apartment Act --- https://drive.google.com/open?id=1nr9sgYgeegOJdlcyfhB4VW0Xq8zs8yfM 2018 Amendment --- https://drive.google.com/open?id=1nrZaq7klARX7hrkZtqIfpyCMhW49jiMc Now one of the lawyers who we consulted provided us with this amendment copy and gave us the path to take this forward. Below are our queries - 1. We were advised by our lawyer to follow the route as mentioned by Mr Hemant Agarwal in the original question (link above). 2. Is this route the only way or there are other ways as well to get the Apartment Condominium converted to Housing Society? 3. If, today, we do form a Committee (through a formal election in a general body meeting) to take over the accounts from the builder, will it derail the housing society formation process in any way? 4. Assuming that the way mentioned in (1) is correct, is there any hefty amount to be paid at the time of filing the case or going to the registrar after the court order ? (For ex: Stamp Duty etc.) 5. Does the builder has any say in all the above process? Will his willingness be required? And what if he doesn't agree? Please do help us and guide us on the above queries.
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If builder is not inclined to form cooperative housing society and registrar is refusing to register society as deed of declaration is executed by builder your only remedy is to obtain court orders to direct builder to form society
2) if you elect a committee after formal elections it would affect formation of society
3) you have to pay court fees depending upon reliefs claimed by you
4) court would not pass any orders without hearing the builder
3. No
4. No it will not be a hefty amt
5. You can proceed even if he doesn't agree
1. You may follow the advise rendered by your advocate who had strained to advise you on the basis of the prevailing circumstances.
2.. There may be alternate options as well, but you must select the one which is more appropriate to your situation.
3. Even if you form a committee, it is not mandatory that you have to accept the accounts from the builder, you can decide about taking over the accounts from the builder or to ignore the same and proceed in registering the society as per the members mandate.
4. If at all there arises any litigation, then the litigation expenses are to be borne by the litigants concerned.
5. The decision by the committee taken in a meeting is binding on the builder, he cannot take a separate view and force the committee to accept it.
Majority members can resolve to withdraw from association and any 7 members can form the society. Even after elections, association can be dissolved and after formation of society, account will trasfer to it.
No stamp duty on registration of society , only registration fees.
Once builder surrender the accounts, have no say.
1. The replies of other lawyers cannot be seen by the answering lawyers. Hence cannot comment on the advise of Adv. Hemant
2. cannot comment in view of 1 above
3. the condominium is already registered since builder has submitted the property to provisions of MAOA by executing a registering a deed of declaration. So no harm in taking the management from the builder. A provisional/ad hoc committee can be formed as of now for taking over management from the builder. Once the management is with the condominium, then relying on the amendment, the condominium can be dissolved and property transferred to a society by executing and registering a transfer deed in favour of such society. Please note that in a condo, the builder sells not only the flat but also an undivided share in the land to the flat buyer. This is stated in the agreements for sale executed with flat buyers. Thus the flat buyers not only have ownership over their flats but also have undivided share in the land. If a society is required to be formed then all the apartment owners [or the MC of the condominium with approval of the apartment owners given in a general body meeting] will have to convey the land and the building to the society. Since this is a transfer without any consideration, stamp duty will have to paid on the conveyance deed on the basis of the market value of the property as per RR
4. The transfer or conveyance of land with building from the condominium to the society does not require a court order. Both condo and society are independent legal entities and can contract with each other
6. the builder must have received his consideration for the flats sold by him under the various agreements executed with apartment owners. If that is so, then he should not be having any problem whether he conveys the land to the condo or to the society
