• URGENT - Correct method to form society

Facts:

1. While selling flats to buyers, our builder has put the CONDOMINIUM clause in the sale agreement.

2. After receiving Completion Certificate, builder registered the Deed of Declaration for Condominium with Sub-registrar;

3. However, none of the buyers have still signed the Deed of Apartment;

4. General Body Meeting has been called by the builder on 25 Sep 2016 in morning asking for nominating a provisional working committee which will take handover of accounts, bank accounts etc;

5. None of the residents want CONDOMINIUM and already we have submitted INCAPACITY to attend GBM or cooperate if Society Formation is not main agenda in GBM;

6. The above letters have not been replied to by Builder, however, builder has put additional agenda points as ON REQUEST OF CORE COMMITTEE, resolution will be passed for society formation. But builder has retained the Main Agenda as appointing committee for Condominium affairs and handing over;

7. Additionally, builder has agreed to give No Objection Certificate for Society formation;

OPINIONS TAKEN:

Legal opinion 1: The Advocate says that we should see Society formation related forms ready and get it signed on GBM date. After that, he can get society formed for us within a month. As only Deed of declaration is registered and non deed of apartment signed yet, it won't be an issue for society formation.

Legal opinion 2: Another advocate has mentioned that the first step is that builder should revoke the Deed of Declaration and confirm. As Deed is registered, we are already a part of condominium and without revocation, we cannot directly go for society. If still society forms are submitted to Co-op Society registrar office without revoking Deed of Declaration of Condominium, our process/application will be null & void. If builder refuses to revoke, the other option is through Court of Law.

We are at a very critical juncture and need a specialist who can give us a clear picture of which of the above opinions hold good and correct as per law for us to form a hassle-free co-operative society. Please respond urgently.
Asked 2 months ago in Property Law from Pune, Maharashtra
Religion: Hindu
1) the opinion of second advocate is correct 

2) deed of declaration has to be revoked by the builder for formation of the society 

3) your application for formation of society would not be considered as deed of declartion has already been regd by the builder
Ajay Sethi
Advocate, Mumbai
23107 Answers
1213 Consultations
5.0 on 5.0
For formation of condominium, Maharashtra Apartment ownership Act, 1970 provides for the same. 
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. 
In the case of a condominium, the title of each apartment rests with the apartment owner, who also has a proportionate undivided interest in the land on which the building stands, the common areas and facilities of the building. 
 In the case of the first Deed of Apartment the party of the first part shall be either the sole owner or all the owners of the property who has or have executed and registered the Declaration in form “A” and the party of the second part shall be the apartment owner. In the case of subsequent Deeds of Apartment, the party of the first part shall be the apartment owner and the party of the second part shall be his transferee.


In your case since the owners have decided not to accept the proposal of the buildr to form the condominium, can either abstain from the meeting protesting the same or can record your objections and protests and express your unwillingness to the proposed formation of condominium. 
The cancellation of deed of declaration can be taken up once the builder agrees to revoke his decision and cooperates for the cancellation of the deed of declaration. 
T Kalaiselvan
Advocate, Vellore
13915 Answers
127 Consultations
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You have to move court against builder for revocation of deed of declaration 
Ajay Sethi
Advocate, Mumbai
23107 Answers
1213 Consultations
5.0 on 5.0
All the flat owners have to jointly take action on the subject as unanimously decided in a prior meeting about this. A joint suit to declare the deed of declaration as null and void may also be filed before the civil court in the name of the society formed parallely.
You may discuss elaborately about it with an advocate in the local who has good experience in this field and proceed as per his advise based on the situation prevailing at your end. . 
T Kalaiselvan
Advocate, Vellore
13915 Answers
127 Consultations
5.0 on 5.0

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