• Society issues

I have a shops/showroom in a commercial mall here in Jaipur. The mall is 5 floors high and the 5th floor is a private property of ours and thus so is the roof. During the building of the mall the builder installed a chiller unit for central cooling of the mall on the roof. Besides the builder has not fulfilled certain other requirements according to the agreement. The mall is almost 7-8 yrs old. Because of the pending issue with the builder we have not been paying the society maintenance charges and only one of our shop is actually rented out. Now the society has asked us to pay back the pending maintenance charges from all these years through a legal notice. Our argument is that the society has been using the roof , where the chiller unit is installed, which belongs to us and has to pay us in turn the charges as per going rates in the area. 
Are we right in assuming this and what future course of action should we take.
Asked in Property Law from Jaipur, Rajasthan
Religion: Hindu
1) society can claim maintenance arrears for period of3 years only 

2) you cannot refuse to pay maintenance merely because chiller unit is placed on roof 

3) terrace forms part of the common area for benefit of all members of society 

4) if builder has failed to honour the agreement your cause of action is against the builder . You cannot refuse to pay maintenance to society 

Ajay Sethi
Advocate, Mumbai
28531 Answers
1548 Consultations

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1. Was it part of the sanction plan for construction of the Mall that the chiller unit will be constructed at the roof?

2. If not then why did you allow the builder to construct the same and why did you not agitate against it before and filed a suit or complaint before the Sanctioning Authority?

3. Normally the right to use the roof will rest with all the flat/shop owners though you will have the right to construct floors above the roof,

4. If the sanction plan does not state about construction of the chiller unit at the roof, then you can write to the Municipality to dismantle it and also ask the builder to remove it and pay the arrears of rent and square it of with your arrears with the society maintenance.
Krishna Kishore Ganguly
Advocate, Kolkata
13928 Answers
309 Consultations

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Your argument is right. It is the society which has to pay you, but the fundamental flaw in it is that you have not demanded the charges for the use of roof which is owned by you. So there is a limited waiver. Be that as it may, you should reply to the notice through your lawyer, and the society goes to court then you should contest the case.
Ashish Davessar
Advocate, Jaipur
19896 Answers
520 Consultations

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If the 5th floor is owned by you along with roof rights, the installation of chiller unit without your permission or consent can be termed illegal.  there should have been an rental agreement agreeing to pay rent to install the chiller unit or as per a lease agreement till the agreed period or for periodically renewed period too. However if this arrangement was on a mutually agreed understanding then no doubt the society should allow the concessions to you in the available form.  
No doubt the builder has not taken care of the defect in the constructions despite reminding him many times about it hence you have withheld the maintenance charges, especially when the issue about the installation charges for installing the chiller unit at the roof top has not been decided. You may issue a reply notice stating that the builder agreed to adjust the entire maintenance charges out of the rental amount fixed for installing the chiller unit at the roof belonging to you, the builder may be approached for it and also you may demand the society to either enter into a fresh lease agreement with you for the said installation and pay the fixed rent payable every month  @ the rate specified as monthly rental from immediate forthwith to enable you to abide by the society's dictate for maintenance accordingly. 
You have to give a fitting reply to the society rejecting their arbitrary decision demanding maintenance charges that too from the beginning without considering the rights what you are entitled to get from the society. 
T Kalaiselvan
Advocate, Vellore
18736 Answers
176 Consultations

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