• What is recourse available if we wish to form society?

I represent River Residency, Chikhali. It's a township of 1300 residents, 800 plus in Phase I and 470 in Phase II. My question is as under:

1. Our agreement contains a clause for condominium formation. However, majority of residents in Phase II want to go for a society, not a condominium. If builder does not cooperate and still wants to force a condominium, what is the recourse available to us? Can we still form a society if majority residents sign a representation?  

2. There are total 17 buildings. Can we form a separate society of each building or club few buildings into one society? Builder says that we need to form a uniform condominium of both Phase I and Phase II, not a society.
Asked 5 months ago in Property Law from United States
Religion: Hindu
1)?Members can make application to registrar of cooperative societies for formation of Co operative society 

2) once condominium is formed by the builder  cooperative society  cannot be formed by the members 

3) separate society can be formed of residents of one building 
Ajay Sethi
Advocate, Mumbai
23408 Answers
1230 Consultations
5.0 on 5.0
1) you should contact lawyer specialising in society matters in your city 

2) All flat owner should hold meeting and elect Promoter.All power for Registrations,documentation etc. should be given to promoter.The resolution should be passed and must be sign by all flat owners who wish to become member of the Co-operative Housing Society 

3) purchasers can apply for registration of Co-operative Housing Society under Non Co-operation.In this case one of the flat owner should be elected as CP for Registration purpose.In this case some more time is taken to registered society as registrar is issue notice to builder for Non Co-operation. If no response then ex-party decision are taken for registration of the society..decisions is given by District Deputy Registrar [DDR] then society is registered
Ajay Sethi
Advocate, Mumbai
23408 Answers
1230 Consultations
5.0 on 5.0
1. Our agreement contains a clause for condominium formation. However, majority of residents in Phase II want to go for a society, not a condominium. If builder does not cooperate and still wants to force a condominium, what is the recourse available to us? Can we still form a society if majority residents sign a representation?  

There may be a clause for condominium formation but it will depend on the apartment/flat owners decision. 
The builder cannot hrust his decision on people for his own benefits. 
However, to form a society, generally 10 persons, each from a different family who reside in the area of operation of the society (within the same city) and who have taken premises in the building, would be required. 
However, even one person who owns the entire building can form a condominium, provided there are at least five apartments in the building.
A society adopts the model bylaws in which little can be changed. While adopting the bylaws in a condominium, suitable changes can be made, so long as the provisions of the Act are not contravened. 
A society issues certain shares to its members, as per the bylaws and the share certificate becomes an important title deed, since the allotment of the premises are related thereto. This is not so in a condominium.
Under the model bylaws, a society can charge only Rs 500 as transfer fees and a maximum of Rs 25,000 as a premium. In case of a condominium, the bylaws can be more flexible and the amount of transfer fees can be provided therein. 
In a condominium, the owner can give his apartment on lease or leave and license basis without the approval of the board of managers, while in a society, permission is required. 

Thus formation of condominium is always a beneficial matter  to the owners when compared to the society. 






2. There are total 17 buildings. Can we form a separate society of each building or club few buildings into one society? Builder says that we need to form a uniform condominium of both Phase I and Phase II, not a society

To form a society, generally 10 persons, each from a different family who reside in the area of operation of the society (within the same city) and who have taken premises in the building, would be required.
Thus every building can have their own society if the above condition satisfies.  It ultimately depends on the decision taken jointly by all the residents where the builder cannot enforce his own thoughts.
T Kalaiselvan
Advocate, Vellore
14177 Answers
128 Consultations
5.0 on 5.0
Just wish to re-check - As our sale agreement contains a condominium clause, do we need to do any affidavit or other document done to offset the same and go for a society or will just a majority representation by residents to Registrar will help us kickstart the society formation process?

The majority of the residents can have a meeting and decide about forming a society and can follow the other formalities in this regard to form a society and register it as per the rules envisaged for this purpose.
The majority of the residents can ignore the condominium clause.




Secondly, does forming a building wise separate society depend on whether the building is identified as a separate plot or any sub-plotting done?

It would be on the basis of the registration of the plot done and and the subdivision of the same if any was undertaken.

T Kalaiselvan
Advocate, Vellore
14177 Answers
128 Consultations
5.0 on 5.0
1. It is always advisable to go for co-operative housing society formation as this will ensure that land is transferred to the society and builder does not retain any future rights once project is completed - all other types of associations are beneficial for builders . Flat owners have absolute and indefeasible right to form co-operative society .

2. All members interested in formation of the society should join to elect a Managing Committee and thereafter send a lawyer's notice to builder that you have decided to form a society and therefore builder should hand over the management to the Managing Committee of the owners, failing which you should stop paying any maintenance to builder and file a joint complaint in Consumer court and also obtain a stay order against builder from managing the society. 
Ashish Davessar
Advocate, Jaipur
18275 Answers
451 Consultations
5.0 on 5.0
No affidavit is required to be executed. Just form a managing committee and then serve a lawyer's notice to the builder. 
Ashish Davessar
Advocate, Jaipur
18275 Answers
451 Consultations
5.0 on 5.0
1. The Society or condominium, as the case may be, will be formed by the flat owners as per their wish which can not be dictated by the Builder,

2. After the flats are taken possession of and are registered, all the flat owners can convene a meeting and decide what exactly you want to form for, inter alia, the maintenance of your flats,

3. Once decide by the majority votes, you can form the society or condominium and take over the maintenance from the Builder. 
Krishna Kishore Ganguly
Advocate, Kolkata
12144 Answers
234 Consultations
5.0 on 5.0
1. The builder can not dictate as to what you shall form for taking collective control of the maintenance of the flats,

2. Even if it is written as condominium in the agreement, it implies taking over joint control or control by the representative body of the flat owners.
Krishna Kishore Ganguly
Advocate, Kolkata
12144 Answers
234 Consultations
5.0 on 5.0
1. In this instant case both Society and condominium implies representative body of the flat owners,

2. The builder or anybody can not sue you for forming Society in place of condominium since it is the prerogative of the flat concerned owners.
Krishna Kishore Ganguly
Advocate, Kolkata
12144 Answers
234 Consultations
5.0 on 5.0
1)you should call for meeting of members of phase 2 .in said meting elect promoter . 

2) pass resolution that you dont want condominium . inform the builder that you dont want condominium to be formed . builder would not go against wishes of flat owners . 

3) if builder refuses apply for registration of Co-operative Housing Society under Non Co-operation.In this case one of the flat owner should be elected as CP for Registration purpose.In this case some more time is taken to registered society as registrar is issue notice to builder for Non Co-operation. If no response then ex-party decision are taken for registration of the society..decisions is given by District Deputy Registrar [DDR] then society is registered

4) as far as phase 1 is concerned since condomonium has already been formed by builder society would not be registered by registrar
Ajay Sethi
Advocate, Mumbai
23408 Answers
1230 Consultations
5.0 on 5.0
1) if there is deficiency in service file complaint before consumer forum against builder and seek orders to direct builder to rectify the defects in construction , 

2) in addition you can file FIR for cheating , criminal breach of trust under section 406, 420 of IPC against builder for poor quality of construction 

3) for dissolution of condominium unanimous consent of all  flat owners would be necessary 
Ajay Sethi
Advocate, Mumbai
23408 Answers
1230 Consultations
5.0 on 5.0
However, since the buyers (Phase II) have now collectively decided that they want to go for society only, we have obtained the Society consent signatures of majority of occupants. Will this be fine? Based on this, can we tell the builder that he cannot go by the sale agreement as majority occupants want society only? 

The builder cannot force the his decision with regard to formation of condominium.  Just because he has inserted a clause in the sale agreement, it cannot become a rule. Actually the builder has no role to form a society, it is the apartment owners collectively take a decision to form an association/society , select from among themselves the office bearers, bye laws, and register the society with the registrar of cooperative society etc.  The builder has to handover the building with all appurtenant to the society thus formed.  If your builder is insisting on the condominium only, you all can communicate the decision taken collectively to form a society and are not agreeing to his decision, he cannot interfere in that decision. 




The Phase I of our township which was handed over 2 years ago had already formed a condominium. However, they now wish to discontinue and form a society instead. Can they do the same? Around 72 buyers had signed the Deed of Apartments for Condominium and it's still to be reversed. What is the way ahead if Phase I wishes to form a society and dissolve the condominium?

They all can take a decision in their next meeting to cancel the deed of apartment and form a society instead.  It can be decided in a general body meeting and voted by at least two third of the members.  The other formalities for forming the society, registration etc can be discussed accordingly in the meeting itself.  The builder cannot interfere in the decision taken by majority of the apartment owners.
T Kalaiselvan
Advocate, Vellore
14177 Answers
128 Consultations
5.0 on 5.0
1. Is there no recourse for Phase I to cancel condominium and form society? Will they need to function as condominium only? If there is any legal way out, I would like to know.

A cancellation of the registered deed of apartment shall involve the stamp duties for cancellation too. If it has been decided by majority to cancel the condominium or a deed of apartments, they can take a decision collectively.  The the affairs of a condominium are managed by the board of managers, who are elected by the members of the apartment owners association.  They can decide about this issue in a meeting convened for this purpose.






 understand that now it is possible to file police complaint (FIR) against the builder for certain issues. Issues like deficiency in construction (seepage issue despite guarantee of no seepage for 5 years), charging of huge MSEB deposit, parking, infrastructure charges, non provision of domestic water (residents paying on their own) etc, not cooperating for forming society - do these issues form a basis for FIR?

Why a police complaint for this.  A complaint with police shall be for cheating only and not for deficiency of service.  A consumer court shall be the ideal forum where such grievances can be addressed and you will get proper relief including compensation for the mental strain and agony cause by the builder due to this. 
T Kalaiselvan
Advocate, Vellore
14177 Answers
128 Consultations
5.0 on 5.0

Ask a Lawyer

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

Property Lawyers

T Kalaiselvan
Advocate, Vellore
14177 Answers
128 Consultations
5.0 on 5.0
Ajay Sethi
Advocate, Mumbai
23408 Answers
1230 Consultations
5.0 on 5.0
Ashish Davessar
Advocate, Jaipur
18275 Answers
451 Consultations
5.0 on 5.0
Krishna Kishore Ganguly
Advocate, Kolkata
12144 Answers
234 Consultations
5.0 on 5.0
Devajyoti Barman
Advocate, Kolkata
5248 Answers
54 Consultations
4.9 on 5.0
Shivendra Pratap Singh
Advocate, Lucknow
2799 Answers
41 Consultations
4.9 on 5.0
Atulay Nehra
Advocate, Noida
444 Answers
15 Consultations
4.7 on 5.0
Rajgopalan Sripathi
Advocate, Hyderabad
873 Answers
43 Consultations
5.0 on 5.0
Ajay N S
Advocate, Ernakulam
1918 Answers
19 Consultations
5.0 on 5.0
S J Mathew
Advocate, Mumbai
1954 Answers
66 Consultations
5.0 on 5.0