• Who should maintain property if project is delayed

Hi, 
I have purchased a flat in an apartment in bangalore last year (Feb 2014). The apartment has two blocks. A block which has about 25% of flats is completed and the builder said its ready to occupy. Rest of the apartment including amenities, he said will be complete by August 2014 or max by the end of year 2014. So I paid him 100% of money through bank loan, registered the property in march 2014 and moved in April 2014. He gave me possession certificate for the same. 
Now even by the end of 2015 the apartment is not ready. Except lifts no amenities are operational (STP, swimming pool, party hall, gym, sports facilities etc). They may take anywhere 3-4 months to be operational. In our agreements the builder said he will maintain the property for 15 months and collected the money for the same at the time of booking. We got Occupancy certificate for the apartment in Oct 2015. Now here are some questions.. 
1) Who is responsible for maintenance of the property before the association is formed ? Especially for the period of April 2014 to Dec 2015 ? Is it the builder or the residents who have taken possession should bare all the maintenance expenses? Because there was nothing... no parking, no amenities nothing, but he started collecting maintenance from everyone from July 2014. And he was simply delaying the project. We had to stay in most disgusting conditions for the last 1.5 years. After repeated discussions and fights with him, we stopped paying him maintenance from April 2015 and told we will pay him only when he completes the project. Can the builder collect maintenance during this period, because there is nothing mentioned about this in agreement. 
2) Can the builder start his tenure of maintenance without completing the apartment including amenities ? I mean can he say that for the A block since he has given possession, he started the maintenance in April 2014 ? 
3) Now he is arguing that he has spent 17 lakhs for A block maintenance so far, and we had paid some 3.5 lakhs till march 2014. So unless A block residents settle the remaining amount of 13.5 lakhs, he says he won’t do the maintenance and even says he will give back the maintenance amount collected from B block residents also. Can he simply wash away his hands like that ? Can he take away A block maintenance amount against this ? 
4) When is it the right time to form the association ? If we form the association now, can he run away from maintenance? One special problem in our apartment is that 50% of flats are owned by land owners and they dont pay a single penny on maintenance due to delay of the project. So the builder is trying to force the association formation and run away from maintenance. How can we deal with this ?
5) The builder himself is a big problem. Only a single person runs everything here. He keeps on giving deadlines but never follows them. And if anyone raises voice he targets them individually. After repeated discussions/fights he committed himself to completing everything by Dec 2015. But now he is not taking any responsibility for the delay saying some excuse or the other. Looks like he may leave many things unfinished. In this case what options do we have to make sure that the project is completed as promised. 
6) If we pick up a legal battle with him, can he stop the project and leave it unfinished? How easy or challenging is it to fight a legal battle with the builder ??  
Thanks
Asked 12 months ago in Property Law from Bangalore, Karnataka
Religion: Hindu
1) Who is responsible for maintenance of the property before the association is formed ? Especially for the period of April 2014 to Dec 2015 ? Is it the builder or the residents who have taken possession should bare all the maintenance expenses? Because there was nothing... no parking, no amenities nothing, but he started collecting maintenance from everyone from July 2014. And he was simply delaying the project. We had to stay in most disgusting conditions for the last 1.5 years. After repeated discussions and fights with him, we stopped paying him maintenance from April 2015 and told we will pay him only when he completes the project. Can the builder collect maintenance during this period, because there is nothing mentioned about this in agreement. 
The maintenance is the responsibility of the builder till an association is formed by the flat owners.
No doubt the builder has to provide all the amenities as agreed by him, if he is not able to provide the amenities promised, then he cannot claim maintenance amount for those things which are absent.



2) Can the builder start his tenure of maintenance without completing the apartment including amenities ? I mean can he say that for the A block since he has given possession, he started the maintenance in April 2014 ? 
Actually the builder can claim maintenance only after handing over possession and not before that.



3) Now he is arguing that he has spent 17 lakhs for A block maintenance so far, and we had paid some 3.5 lakhs till march 2014. So unless A block residents settle the remaining amount of 13.5 lakhs, he says he won’t do the maintenance and even says he will give back the maintenance amount collected from B block residents also. Can he simply wash away his hands like that ? Can he take away A block maintenance amount against this ? 
A notice can be issued to him by individual flat owners for failure of his maintenance and can be dragged to consumer forum for deficiency of service.  However maintenance charges includes for maintaining the common areas.




4) When is it the right time to form the association ? If we form the association now, can he run away from maintenance? One special problem in our apartment is that 50% of flats are owned by land owners and they dont pay a single penny on maintenance due to delay of the project. So the builder is trying to force the association formation and run away from maintenance. How can we deal with this ?
Association can be formed only after two years of the completion and handing over possession of the flats by the builder to the owners.  Before that it becomes the duty of the builder to obtain Occupancy certificate and he has to maintain the apartments for next two years.




5) The builder himself is a big problem. Only a single person runs everything here. He keeps on giving deadlines but never follows them. And if anyone raises voice he targets them individually. After repeated discussions/fights he committed himself to completing everything by Dec 2015. But now he is not taking any responsibility for the delay saying some excuse or the other. Looks like he may leave many things unfinished. In this case what options do we have to make sure that the project is completed as promised. 
The option before you is to drag him to consumer forum and seek compensation for the deficient service and also the failure to provide the agreed amenities.



6) If we pick up a legal battle with him, can he stop the project and leave it unfinished? How easy or challenging is it to fight a legal battle with the builder ??
No, he cannot do so, he is answerable and bound by law to compensate for the deficits. 
T Kalaiselvan
Advocate, Vellore
14154 Answers
127 Consultations
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1) builder cannot deliver possession unless Occupation certificate is issued 

2) builder can collect maintenance only after delivery of possession of flat to flat purchasers 

3) builder had to complete amenities promised and then hand over possession of flat 

4) it is builder responsibility to form association 

5) if he fails to do so member can move consumer forum against builder and obtain orders to form association 

6) move consumer forum against builder if he fails to complete the project on time and seek orders to direct builder to do so 
Ajay Sethi
Advocate, Mumbai
23371 Answers
1225 Consultations
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1. The responsibility falls squarely on the builder and none else. It is basic law that maintenance can be charged only if the services are delivered and maintained. However, it was not a wise move to stop maintenance without issue of lawyer's notice.

2. The agreement entered into between the builder and buyer is sacrosanct which has to be honoured by both parties. If the builder is not fulfilling the promises which are reduced to writing then initially a legal notice should be served to him and then a lawsuit can be filed by anyone buyer or collectively by all the buyers.

3. You are at liberty to  form the association. 

4. Filing of a lawsuit against him to seek court's directions to him to either complete the project or refund with compensation the money paid to him by the buyer does not authorize him to stall the project. More often than not the buyers have been successful in the legal battle with the builders.
Ashish Davessar
Advocate, Jaipur
18208 Answers
449 Consultations
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as per agreement, maintenance of the apartment must be done for a period of 12 months by the builder, it is his responsibility, if he fails to do it then take over this from him. Don't pay maintenance to the builder.
Next if all amenities promised by the builder are unfinished file a consumer complaint before the consumer court, seek damages and compensation it will take about a year but you will get the relief sought for.
If you have not yet completed a year after taking possession then do not think of forming an association now itself, wait for completion of 12 months.
If you file the consumer case against builder he cannot target you individually but becomes answerable to you.
Kiran N. Murthy
Advocate, Bangalore
766 Answers
51 Consultations
5.0 on 5.0
1.Possession should be taken after OC is obtained. You have obtained the OC in the month of Oct,2015 whereas you have taken possession of the flat on  August,2014. Normally it takes some time for all the flat owners to move in and form association to maintain their complex. till then the developer maintains it. The moment an association is formed, the developer is bound to handover the job of maintenance to the association. Maintenance amount is required to provide even the basic amenities like water, sewerage, security guards etc. for which you are  required to pay maintenance amount,

2. Maintenance and providing all the amenities are two separate unrelated issues. Since you have taken possession of the flats, amount is required for common maintenance and the developer should provide all the amenities as has been agreed by him  while signing the agreements,

3. Fine, if he does not want to continue to maintain B block and want to refund the amount already paid by you, you can take it back and form a committee to conduct the  maintenance so far taken care of by the builder. You can not insist the developer to maintain your complex without being paid the maintenance share,

4. When most of the buyers have taken possession of the flats, an association should be formed for conducting the affairs of the society/flat owners in the complex. The land owners owning the flats are also to become the members of the society/association and pay for the maintenance.  You take a resolution that no member will be able to sell his flat and transfer the share of the association without the approval of the society. After that the land owner will require to take association's approval for selling his flats and at that time you can claim the payment of arrears for maintenance with interest and fine for giving approval,

5. if the builder has not completed the facilities, file a consumer complaint case before the local District Consumer Dispute Redressal forum alleging deficiency in service and unfair business practice claiming direction for immediate completion of the project with fine per day of delay, damage and cost,

6.No. The Consumer Forum will get him even arrested for his running away without finishing the project.

Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0

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