• Tresspassing into apartment property facilitated by some owners

We are an apartment with 200+ units in South Bengaluru. The apartment has received OC in April 2015. Currently the Association of Apartment owners is under Karnataka Societies Registration act, 1960. This act is not valid for maintenance of apartment hence the Registrar Of Co-operative societies has issued a notice to the Association to stop maintaining the apartment under this association. According to Karnataka Ownership Of Flats act which is the governing act for Apartments in Karnataka the Developer is to form the relevant body for apartment maintenance and also transfer all properties to that body. The Developer has been approached and the Developer has been evasive.

The apartment has a neighbouring property which is also built by the same Developer. The neighbouring property has a separate and independent plan sanction and the amenities for the property are separate as per plan. The plan sanction for our apartment shows a wall between our project and the neighbouring one. The Developer has not built the wall and now claiming that the two properties are phases of the same project. By claiming so, the Developer is claiming that the amenities are common. Some of us among the owners have approached civil courts for this matter against the Developer. 

The Developer by claiming the two properties as phases of the same project has violated BBMP(Bengaluru civic body) regulations which would mean a loss of around ~20 crores to the government. So as per statutory regulations the two projects cannot be integrated. Since the claim of phases has become untenable, the Developer has got some owners to sign on a piece of paper saying that the owners do not want a wall between the two properties and they want to share their amenities with neighboring apartment owners. There's currently an interim committee 
maintaining the apartment until a juristic body is formed for the same. The members of this committee have gone and allowed vehicles from the neighboring property to enter our premises and use it as their driveway. Also they are allowing the neighboring property owners to use our amenities like tennis court etc.

My questions are :
1. We have undivided share of the land as owners. We have a contract which we signed for only this property and not for others.In such situation can a group of owners who are hand in glove with the developer decide to share the property with third parties even if they are in majority ?

2. What happens to our legitimate rights and what are the remedies ?

3. Can this act of agreeing to share be construed as violating law and causing loss to public exchequer ?

4. What should be done against the members of the interim committee for these acts ? are they to be held liable individually ?

5. Is it not an act of criminal trespassing ? should we be filing FIR against tresspassers (neighboring property owners) ? and what about facilitators ?

Please advise.
Asked 2 years ago in Property Law
Religion: Hindu

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10 Answers

1) on basis of resolution passed in AGM they can share property with third parties 

 

2) your remedy is to seek injunction restraining Flat owners from adjoining property from using your facilities 

 

3) file complaint before registrar seek appointment of administrator for the complex 

 

4) don’t file any FIR as your own committee members are allowing them to use your amenities

Ajay Sethi
Advocate, Mumbai
89848 Answers
6516 Consultations

5.0 on 5.0

1. No majority decision can override law. If your project belongs to you then by no means the neighbouring project could be amalgamated with yours. 

2. You should have filed case before the consumer forum than in civil court.  Anyway if you share the present status of the case and reliefs sought for then further advice can be given.  Seek interim injunction at once. 

3. It's a breach of agreement, therefore a civil wrong leading to loss of public revenue. 

4.  Challenge the committee under which Act the same was formed. 

5. Case of criminal trespass doesn't lie under the present circumstances. 

Devajyoti Barman
Advocate, Kolkata
22515 Answers
416 Consultations

5.0 on 5.0

We will answer your questions legally and tactfully provided we review the entire facts mentioned in the agreement registered with competent authorities under registration Act between owners and Builder. 

We need to understand and verify the original approved  and sanctioned project plan by BBMP. ( Bangaluru Civic Body).

If we answer win win situations to you that  may make you happy for few hours and day but you won't get permanent solution for your issues and problems mentioned in question no 1 to 5 in the present post.

Please provide documents for review and opinion. 

Ramesh Pandey
Advocate, Mumbai
2541 Answers
8 Consultations

5.0 on 5.0

1. You need to approach court if majority is doing Illegallities. 

2.Filing a complaint to dy registrar in case of society or approaching court. 

3. Yes 

4. Complaint to dy registrar and expel them. 

5. Yes

Prashant Nayak
Advocate, Mumbai
28570 Answers
101 Consultations

4.4 on 5.0

Yes you can file an FIR .

Regards

Swarupananda Neogi
Advocate, Kolkata
2951 Answers
6 Consultations

4.7 on 5.0

1. You know that few of the owners have joined the developer for their greedy needs to support the evil intentions of the builder, hence you people from your wing can form a RW  association and register the same under the KAO Act with the bylaws incorporated as per the act and fight out this menace s a registered body to be more effective to protect your rights.

The same members can submit a letter jointly to the registrar to cancel the existing society registered under KSA.

2. You may have to claim your rights under RWA  body only by registering the association under KAOA.

3. You people or your RWA can make a complaint against the builder about this loss to the exchequer with proper details.

4. Read the first answer above.

5. Who will give a complaint to the police, you as a individual?

The builder is more powerful, he can purchase police and the other authorities if you are fighting as an individual, hence better you fight it out unitedly by forming an association as suggested, even though it may take a little more time.

 

T Kalaiselvan
Advocate, Vellore
80015 Answers
1674 Consultations

5.0 on 5.0

Let us revisit the facts of the case on hand. Two independent apartments are constructed by a common developer/builder. Both have received OC for occupation. Both have independent associations duly registered for the maintenance of each of the apartment complexes. However both the associations are registered under KSR Act of 1960, and in this regard the Registrar of Co-op societies has issued notice for certain violations and the same is pending consideration.

In the above background, the developer is now claiming both the apartments are one and the same and the amenities provided in each of these are for the common use of all, which again is in contention and disputed by the respective owners before a civil court. The same is also pending consideration.

Now in the above scenarios, 

1) Whether the land owners consent or not, sharing of amenities cannot be determined by a mere consent letter or agreement, it must be done with the consent of all stake holders, otherwise, the civil court only is competent to decide this issue.

2) If your legitimate rights are violated or breached, your legal remedy is to approach a competent civil court for a equitable solution.

3) Agreeing to share must be free and absolute, if it stems from fraud or misrepresentation it is against the principles of natural justice and thus can be questioned before a court of law.

4) Their act can be questioned before a competent civil court and alternatively those responsible if found guilty by a competent court can be prosecuted.

5) The act of providing access to both apartment owners to use the common amenities is based on a consent letter purportedly manufactured by the developer, this can be challenged by a writ petition before the High court of Karnataka and those violators will be punished by the Hon'ble court itself.

In depth perusal of the facts and documents would yeild proper solutions, hence consult an expert property consultant to pursue best options.

Kiran N. Murthy
Advocate, Bangalore
1298 Answers
194 Consultations

5.0 on 5.0

Owners consent is of no value neither any single owner or majority have to authority to permit share their amenities with neighboring apartment owners.

Obtain stay from court or interim order to erect barbed wire to stop public movement in private property. Complain to BBMP that builder had violated building plan by not constructing wall.

 

Yogendra Singh Rajawat
Advocate, Jaipur
21481 Answers
31 Consultations

4.4 on 5.0

1. Yes majority can take decision for use of amenities.

2. You cn file suit against developer for providing separate amenities to other project as mentioned in sanctioned plan. 

3. No it is not act of criminal trespassing because they are using your property and amenities with permission of developer and some residents.

Mohit Kapoor
Advocate, Rohtak
10687 Answers
7 Consultations

5.0 on 5.0

1. Since you entered into the contract with the said builder , then the builder is bound with the clauses of the same. 

- Further , without taking the consent of land owners like you , the builder cannot take any decision . 

- If there are more than 7 landowners , then you can form and register. 

2.After register the society under KAOA , you can lodge your complaint before the consumer court , and also file a suit for Mandatory and Permanent Injunction for restraining order. 

3. File a complaint before the Registrar 

4. You have right to challenge the outcomes of interim committee. 

5. No, as they have consent of builder , then an FIR cannot lodged against them .

Mohammed Shahzad
Advocate, Delhi
10661 Answers
132 Consultations

5.0 on 5.0

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