• Apartment maintenance penalty

Hi,
Is it legal for apartment association to impose penalty without serving any written "notice" of non-payment? In my case, association waited for 6 months before informing me of non-payment and is now demanding hefty penalty.
I missed last 6 months of payment because my NEFT stopped.

Please advice. I am ready to hire a lawyer to serve a legal notice to association (if i have a case) even though it might cost me more than the actual penalty.

Thanks,
Sunil
sunilgupta3.141@gmail.com
Asked 1 year ago in Property Law from United States
Religion: Hindu
Well, in such matters its advisable to go through the society bylaws first.
Since you are going to stay there for sometime it's better to resolve the dispute amicably by letting your grievance clear to them.
Don't send legal notice. Instead send your personal letter ventilating your grievance.
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
1) association must have raised monthly or quarterly bills on you 

2) if you fail to pay association can levy interest on you at 21%pa 

3) if penalty has been levied upon you ask association to furnish copy of resolution passed in AGM to levy penalty on the defaulters

4) no need to issue legal notice now 

5) if association does not forward copy of resolution then issue legal notice 
Ajay Sethi
Advocate, Mumbai
23364 Answers
1222 Consultations
5.0 on 5.0
Hi, Without affording an opportunity the apartment association has no right to impose penalty it is against the natural justice.

2. You just write a letter to the association for the reason  for which you are unable to pay the maintenance and you just mention in the letter you are ready and willing to pay the maintenance. 

3. In spite of that if they go for legal action then you can fight with legally, one thing you must remember welfare association has to do the work for the welfare of the apartment owners.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. Unless an opportunity to pay the arrears has been given to the defaulter the penalty cannot be imposed.

2. You should serve a lawyer's notice to the association to deny your liability to pay the penalty as it has been imposed in an arbitrary manner. If the association files a lawsuit to claim penalty the court will give you a fair opportunity to contest the case.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
The maintenance charges are collected from residents for services like water, common area electricity, security and common area cleaning. The money also goes into general upkeep of the building and maintaining amenities in the apartment complex. 
As per Bye-laws of the Association: 
The non-payment of maintenance or development charges will show a pending amount against a flat. In case there is a amount pending against a flat, the penalties will be imposed. 
Flat residents need to make sure that full dues against a flat are paid by due date. Otherwise monetary penalties and disconnection of utilities will be carried out. 

However, 
The general body while framing regulations for maintenance of essential services including mandatory green area in the co-operative housing society shall have to take into account the common areas, common facilities and the services which are rendered to the members and the residents by the co-operative housing society. The regulations shall have to spell out the basis of fixing up of the charges for the maintenance of essential services specially in such complexes, where area of dwelling units and number of story of flats differ in sizes.
Unless it is provided in the bye-laws, you can not get any concession or exemption for the payment of maintenance charges even if the flat is unoccupied or vacant. But if your flat is lying vacant, you have to write to the society about such vacancy who in turns must inform the Municipal Corporation to claim vacancy benefit.

However you may discuss with a local lawyer and issue a legal notice stating that you were always ready for paying the maintenance amount but in the absence of the bill or notice, you were not able to remember this subject, however since you are ready to pay the arrears of maintenance, the society to accept the same without penalty imposed on it and also the penalty imposed is exorbitant hence illegal.   You can add more such issues of maintenance in your notice to the association to make it more stronger.  
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0
1. Did the by-law or rule/resolution enacted/passed by the Association stated that you shall have to pay dues on time and pay specific amount of penalty for delayed payment of your said dues to the Association?

2. If yes, then the Association is not legally bound to send you notice for your delay in making payment.

Krishna Kishore Ganguly
Advocate, Kolkata
12134 Answers
233 Consultations
5.0 on 5.0
1) when a bill is raised on a member the bill mentions period within which payment has to be made . the bill is forwarded to member residential address  provided by the concerned member for correspondence 

2) if member defaults in payment on bill within stipulated period interest is levied on the defaulter 

3)for levy of penalty the association bye laws mention the procedure to be followed for imposition of penalty 

4) notice is issued to the member to comply with principles of natural justice that no man be condemned un heard 

5)member can in reply to show cause notice dispute imposition of penalty 

6) after receipt of reply Committee passes final order for imposition of penalty 
Ajay Sethi
Advocate, Mumbai
23364 Answers
1222 Consultations
5.0 on 5.0
The principals of natural justice mandate that a notice be issued before imposing the punishment. Penalty being a punishment can be imposed only after the notice. The committee has to prove that it issued the notice.
Ashish Davessar
Advocate, Jaipur
18183 Answers
449 Consultations
5.0 on 5.0
Hi, as per natural justice they have to issue notice and thereafter only they have to proceed further.
Pradeep Bharathipura
Advocate, Bangalore
4105 Answers
133 Consultations
4.3 on 5.0
1. There is no law in India which stipulates that a notice shall have to be sent before claiming penalty for delayed payment if it is already mentioned in the by law or any other relevant document that penalty shall have to be paid for making delayed payment of dues,

2.lf there is no such document or if the by law does not stipulate any such penalty for making delayed payment for dues, then the Association shall have to notify all its members about the resolution passed in  AGM for charging such penalty for making delayed payment of dues to the Association.
Krishna Kishore Ganguly
Advocate, Kolkata
12134 Answers
233 Consultations
5.0 on 5.0
Is there any law in India that requires that to levy a penalty, a "notice" is required to be served?
How can we ensure that there was no deliberate attempt by the committee to delay in notifying the member (that they missed few payments) so that more penalties can be collected?

You should understand one thing that it becomes your duty also to enquire about the maintenance amount and pay them duly as and when it becomes due or every month. For this you cannot search for any rule in India. 
If you are sure and confirm that the MC of the apartment association had deliberately avoided issuing notice, then you may issue a legal notice seeking their explanation and also refuse to pay the penalty as this act has been done with intention to extract penalty. 
T Kalaiselvan
Advocate, Vellore
14151 Answers
127 Consultations
5.0 on 5.0

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