• RWA membership

Dear Sir,
We have mnade an RWA asso & registered it under socities act 2012. My Question are as follows;
1. If the property has bought jointly by Spouse. Only the first named person has the right to Vote or contest the elections?
2. If the above is true is there any provision in the Law so that the second name person can also be eligible for voting and Contest the election?
3. Is the Co owner can't even become a member in General Body?

Please put some light on the above questions.
Thanks & Regards
Asked 4 years ago in Property Law
Religion: Hindu

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22 Answers

Either one can vote and same shall inform to the society. Generally this right vest in the person, whose name stands first in the share certificate .

Co owner is family member, can attend general body meeting etc, but membership/voting etc shall be carry by one.

And to avoid confusion, law is enacted that this right  enjoy by members whose name stands first in the share certificate .

But she can be associate member. In the absence of first members she can vote and If the original member does not want to contest the election, with his written consent or no-objection letter, the associate member can stand as a candidate in the election and be part of the managing committee,

Yogendra Singh Rajawat
Advocate, Jaipur
22636 Answers
31 Consultations

4.4 on 5.0

Any one of the joint owner can become member.

The first name holder should give an undertaking to this effect and society is to accept it. Society can not deny.

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

5.0 on 5.0

only first named person can vote and stand for elections 

 

2)in his absence if he so authorises then co owner can stand for elections  and vote 

Ajay Sethi
Advocate, Mumbai
94729 Answers
7536 Consultations

5.0 on 5.0

1. The bye laws are very clear that the first owner shall have the rights to vote, the second owner can exercise the rights provided the first owner authorised the second owner for this specifically during his absence.

2. You can go through the bye laws of the association under the banner of MCS act

3. Section 19(b) however provides: “associate member” means a member who holds jointly a share of a society with others, but whose name does not stand first in the share certificate; meaning notwithstanding what is stated in Section 2(19)(b) of the Act, as per Bye-Laws the Associate member must be a joint holder of title 

To set the record right: An associate member is not eligible to be part of a managing committee.

As per the Maharashtra Cooperative Societies Act 1960 [the Act] a member of a society, includes Associate Member, (whether a joint owner of the flat or not). The Associate member is differentiated from a member under 2 legal provisions namely:

  1. The Share certificate issued by the society, evidencing the membership of the society, states name(s) of the Associate member(s) after the name of the member i.e. at a position other than No.1. [Section 2(19)(b) of the Act.
  2. The rights of Associate member are restricted to those specified in registered bye-laws of the society.

Attending a General Body Meeting in the absence of a main member is the only right of the Associate member provided under Section 27(2) of the Act.

T Kalaiselvan
Advocate, Vellore
84925 Answers
2196 Consultations

5.0 on 5.0

The person named first in share certificate can vote but the if it's 50 percent shareholding any one can vote amongst them. 

Yes second name person can vote and contest the election provided other person is not voting and contesting. 

He can become member of general body by election

Prashant Nayak
Advocate, Mumbai
31951 Answers
179 Consultations

4.1 on 5.0

No only informing the society is enough there is no requirement of gift deed. The law is clear that one flat member one vote. So anyone can vote and anyone can participate in election

Prashant Nayak
Advocate, Mumbai
31951 Answers
179 Consultations

4.1 on 5.0

letter to secretary of association should suffice 

 

2) no need to execute gift deed 

 

3) better check bye laws adopted by your association 

Ajay Sethi
Advocate, Mumbai
94729 Answers
7536 Consultations

5.0 on 5.0

1. As per law, The person whose name stands first in the share certificate shall have right to vote or contest the election , and further in his absence , the person who stands seconds has right to vote or contest the elections. 
2. Yes, only in absence of First . 

3. Yes, with the consent of the First owner , whose name is first in the share certificate, an associate member can participate in elections and join the managing committee, 

Mohammed Shahzad
Advocate, Delhi
13230 Answers
198 Consultations

5.0 on 5.0

Second name holder is treated as an associate member. He can vote if the first name holder member keeps himself absent the voting process. He can attend meeting and speak and give his opinion.

Further society is to issue certificate in the name of all joint owners.

There is also no bar to contest election by associate member. There is no need to gift one's share to other.

If society objects, complain to the registrar of the society and seek necessary direction to this effect.

Kallol Majumdar
Advocate, Kolkata
2837 Answers
14 Consultations

5.0 on 5.0

There is no question of NOC.

The first owner may give an authorisation letter authorising the 2nd owner to act on his behalf during his absence to the extent it is permitted by law in this regard.

Here the gift means, the 1st owner has to transfer his share of property to the 2nd owner by executing a registered gift deed after which the first owner do not have any rights in the property and he cannot even claim residential rights in it.

You may go through the bye laws in this regard to form an idea about it.

T Kalaiselvan
Advocate, Vellore
84925 Answers
2196 Consultations

5.0 on 5.0

Gift deed mean, trasfer of ownership by payign stamp duty. NO way.

Just mere NOC, that you are surrendering your right to vote and contest election all other related benefits provided to first share holder to associate member i.e. your wife. 

Gift deed provision is irrational and can be challenge before registrar or co operative society court.

Yogendra Singh Rajawat
Advocate, Jaipur
22636 Answers
31 Consultations

4.4 on 5.0

Dear Sir,

To sell a property situated in a Society the NOC is not mandatory . 2. In other words without NOC from society the sale of a flat belonging to a member of the society is not bad if the other criteria of sale is fulfilled.

NOC is a popular acronym for a No Objection Certificate. It is a statement of permission given to a person or a company to go ahead with the construction or purchase of a property. ... You also have to get this certificate from the builder if you're purchasing a flat in an apartment

 

The model bye-laws framed by the state government under the Maharashtra Cooperative Societies Act hold that a person does not require a No Objection certificate (NOC) from the society at the time of transfer of a flat. Bye-law No 38 prescribes a list of documents required for selling a flat, but nowhere is it mentioned that the society's NOC is mandatory. If at all a transferor or transferee of a flat want an NOC from the society for their personal reasons, the society will have to issue it within a month of receiving the application. It's important to note that NOC issued by the society / RWA does not absolve the responsibility of the purchaser to pay all the past dues (before the sale) to the society/ RWA.

Netravathi Kalaskar
Advocate, Bengaluru
4952 Answers
27 Consultations

4.8 on 5.0

the concept is that the voting is for one vote per home. if a home is owned by 10 persons then all ten cannot be allowed to vote.

there is no such rule about who will vote but to avoid inconveniences, the rights are given to the person whose name comes first.

there is no need of gift deed for voting right. the correct method should be registration of the name of the person who will vote. in fact even that is not required and one person per flat should be allowed to vote and there should be no restriction to that. it is your understanding between the co owners that who will vote. the restriction should not be from the society.

since it is general practice so you can check and request them. if they do not allow you then you can ask your co owner to not to vote and then the candidate will do something for resolution of your issue.

good luck.

Gopender
Advocate, New Delhi
384 Answers

4.9 on 5.0

every flat owner gets one vote in the society's election as per the rules. When it comes to voting, where there is joint ownership, the person, whose name stands first in the share certificate (original member), if present, has the right to vote. 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

A co-owner is automatically an associate member and can stand for election subject to first owner giving NOC under Appendix 10 A. 

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

1. A simple "undertaking consent letter"  .OR. a registered Power of Attorney (POA) addressed to the RWA office-bearers, in favor of the co-owner is sufficient to permit the co-owner to attend all general body meetings /propose or second resolutions /represent the property /correspondences /communications etc..... without any exceptions whatsoever.

2. IF spouse is co-owner, THEN legally spouse is already member cum owner and there is no legal required for any further Gift Deed or any other documentations.

Hemant Agarwal
Advocate, Mumbai
5612 Answers
25 Consultations

5.0 on 5.0

This has been clarified by state cooperative election authority. Every states may have issued such clarification.

But provision is clear in the society act that member also includes associate member and associate member have same privileges and rights of a member.

 

Yogendra Singh Rajawat
Advocate, Jaipur
22636 Answers
31 Consultations

4.4 on 5.0

Residents Welfare Association of ________ Apartment Owners
Model Bye-laws (GHS)

 

bye law 7 Where an apartment has been allotted in favour of two or more persons jointly,

they may be jointly entitled to the ownership of the apartment and the share of the
Association in such case may be issued in their joint names. However, the person
whose name stands first in the share certificate shall have the right to vote;
Provided that such person, whose name stands first in the share certificate,
may transfer such right of vote to any one of the other joint owners.

Ajay Sethi
Advocate, Mumbai
94729 Answers
7536 Consultations

5.0 on 5.0

Sriram Pasricha vs Jagannath & Ors on 24 August, 1976. reported in : 1976 AIR 2335  refers:

 

that all persons who purchases apartment in a group housing are automatic members of the apartment owners association. Therefore, there can be more than one member from one flat depending upon the number of owners the flat has.

As per the law settled by the Hon’ble Supreme Court any of the co-owner can cast its vote

there is no legal provision which determines who among co-owners shall vote. Therefore, it can be any co-owner against whose name other co-owner(s) have given no-objection either expressly or impliedly.  It is advisable that the co-owner desiring to vote or put forward their candidature must give his name before the publication of final voters list by the election officer. A valid voter has the right to contest.

However, in case of co-operative group housing societies, the situation is a little rigid as the voting right is fixed in the name of the co-owner whose name stands first in the share-certificate issued by the co-operative society. But if the co-operative society does not issue share certificate than this rule shall not apply.

in a builder developed group housing a co-owner has right to cast vote and contest for the post in the board of management if remaining co-owner(s) have no objection, either expressly or impliedly. It is immaterial whether the name of the co-owners is mentioned at first, second or at any serial in the list of owners in the conveyance deed.

T Kalaiselvan
Advocate, Vellore
84925 Answers
2196 Consultations

5.0 on 5.0

visit https : //bit.ly/2pH0TEE

Mohammed Mujeeb
Advocate, Hyderabad
19299 Answers
32 Consultations

4.7 on 5.0

Yes first owner will have right to vote and contest election.

yes first owner can authorize second joint owner to vote.

But cannot authorize for contesting election or become general body member. 

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

It is clear by the sale deed agreement with your earlier owner. It's not a problem it's about overthinking

Prashant Nayak
Advocate, Mumbai
31951 Answers
179 Consultations

4.1 on 5.0

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