• Maintainance charges for unsold flats

Our society is on the verge of registration in next 3 months and the builder has prepared papers for the same.The society is in Nashik, Maharashtra. Our individual sale agreement says that Builder and Land Owner will not pay maintenance charges for unsold flats till the time they are sold. This condition is valid even after the formation of the society according to the agreement.
Our question is whether the builder/land owner can introduce such a clause in the sale agreement. This is because the builder / land owner can wait for years together ( to have a good value of the unsold flats ) and NOT pay maintenance charges til the flats are sold. This will put a unnecessary burden on the society to bear maintenance charges for unsold flats also.
Asked 13 days ago in Property Law
Religion: Hindu

2 answers received in 10 minutes.

Lawyers are available now to answer your questions.

14 Answers

builder is bound to pay maintenance for unsold flats 


Such clause is not valid 

Ajay Sethi
Advocate, Mumbai
76984 Answers
4621 Consultations

5.0 on 5.0

Yes this can be done and Keep unsold flats away from maintenance while handover of the flat you have to mentioned with all flat owners and take the signature that they never ask the maintenance amount from you until the flats are sold, because in MCS act does not permit like this what you're thing. Because once society is formed the whole building will come under society act. And here builder and owner are also member of the society if they have flats in the building and obey the rules as per MCS Act. 

 

So here do not deny to pay maintenance only ask that you will pay common maintenance and not water charges. ( only will pay security and sweeper charges. Get Bifurcation charges list from them for next 5 years. And get this Byelaws for you in First SGM after formation of society.

Ganesh Kadam
Advocate, Pune
10682 Answers
94 Consultations

4.9 on 5.0

1. This clause simple preposterous.

2. once the society is formed and the maintenance charges are collected from the flat owners then every owner of the flats , whether it is developer, landowner or the individual flat would be liable to pay his contribution.

So do not agree to such biased terms at all and force them to pay for the flats which they keep under their hold before it gets sold eventually.

Otherwise you can give them a time limit for such waiver. Like till 6 months they wold be waived to pay maintenance charges after which it would be collected irrespective of the fact whether the flats are sold in full or in part.

Devajyoti Barman
Advocate, Kolkata
20790 Answers
296 Consultations

5.0 on 5.0

Dear Sir,

The said clause is favourable tot the builder/owner and undue pressure on the society and hence it is not valid. You are suggested to question the said clause and raise objections before registrar of the society as well. If not removed, you may approach High Court with a writ petition.   

Ganesh Singh
Advocate, NEW DELHI
5435 Answers
10 Consultations

4.5 on 5.0

- As per RERA , the maintenance charges for unsold flats should be borne by the builder till they are sold, and thereafter by the purchasers.

- Hence , such clause in the sale agreement is not valid that the builder and land owner will not pay maintenance charges for unsold flats till the time they are sold. 

- Further , the society is also not bound to pay the said maintenance charge for unsold flats legally. 

- The society or any member can lodge a complaint before the RERA against the builder for mentioning such invalid clause. 

- Yes, even not under RERA , hence also after forming society , the society can send a notice to the builder /landowner for paying the maintenance of unsold flats.

Mohammed Shahzad
Advocate, Delhi
4181 Answers
43 Consultations

5.0 on 5.0

Yes this clause can be added in the agreement by the builder.

Anyway this would have an adverse effect on the value of the flats as flats without maintenance would be in bad shape and would be difficult to sale

Rahul Jatain
Advocate, Rohtak
4059 Answers
4 Consultations

4.9 on 5.0

Once society formed, every flat owner will have to pay MC including builder and LO.

Such kind of condition is not invalid. Buyers are agreeing to it. If you do not want, dont agree.

Refuse the purchase if builder and LO do not agree to contribute in MC. And such agreement clause is not binding on society.

Yogendra Singh Rajawat
Advocate, Jaipur
20149 Answers
28 Consultations

4.5 on 5.0

No the said clause is arbitrary. You can challenge the same in court

Prashant Nayak
Advocate, Mumbai
20589 Answers
38 Consultations

4.4 on 5.0

After issue of OC and registration of Society, every flats are meant for charges of maintenance under MCS Act 1960 and Rules 1961.

Please raise the bill and issue notice for the recovery of maintenance within two weeks of service of notice failing which file recovery proceedings before Dy. Registrar against all defaulters. 


No Builder and Land owner can introduce such clauses in sale agreement between parties if it appears then challenge it before the Court of law for declaration of illegal clauses in the agreement. 

Ramesh Pandey
Advocate, Mumbai
1303 Answers
5 Consultations

5.0 on 5.0

1. Under Section 10(1) of MOFA, the following is envisaged:

“(1) As soon as a minimum number of persons required to form a cooperative society or a company have taken flats, the promoter shall within the prescribed period submit an application to the Registrar for registration of the organization of persons who take the flats as a cooperative society or, as the case may be, as a company; and the promoter shall join, in respect of the flats which have not been taken, in such application for membership of a co-operative society or as the case may be of, a company. Nothing in this section shall effect the right of the promoter to dispose of the remaining flats in accordance with the provisions of this Act.”

2. Builder and the Society are also bound by Model Bye Law no. 19, wherein the Builder is bound for the liabilities of his unsold Flats and the Society is bound to recover outstanding dues from Builder for his unsold Flats.

3. BY VIRTUE OF ABOVE, FOLLOWING CLAUSE IS LEGALLY INVALID: 

"Our individual sale agreement says that Builder and Land Owner will not pay maintenance charges for unsold flats till the time they are sold"

Hemant Agarwal
Advocate, Mumbai
4980 Answers
24 Consultations

5.0 on 5.0

This is an absurd clause and shouldn't be introduced and incorporated in the agreement. How can you people be responsible for all the property that is unsold. The builder wil have to pay for its maintenance until the property is sold and thence the owner shall pay.

Rahul Mishra
Advocate, Lucknow
9795 Answers
18 Consultations

5.0 on 5.0

The maintenance charges have to be paid by all the owners, whether the apartments are occupied or not. The maintenance charges for unsold flats should be borne by the builder till they are sold. 

Mohammed Mujeeb
Advocate, Hyderabad
17333 Answers
11 Consultations

4.5 on 5.0

No, they can't impose such a condition, you have the right to get a properly maintained finished flat. They cannot do this.

Swarupananda Neogi
Advocate, Kolkata
2251 Answers
4 Consultations

4.7 on 5.0

This clause has been introduced by the builder on his own and cannot be legally enforceable when taken up legally.

The flats will remain unsold for years, it does not means that the builder will not pay the common maintenance charges that are payable by all the flats irrespective whether they are sold or unsold.

You first form the association, get it registered and then initiate steps to recover the maintenance charges for the unsold flats too through consumer forum or civil court for recovery 

 

T Kalaiselvan
Advocate, Vellore
66984 Answers
884 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer