Q. A society member, who was a widow with no children, passed away in March 2022. She and her brother-in-law were partners in a firm, which was dissolved after her death. A person had given a loan to this firm, which could not be repaid and hence the brother-in-law made a memorandum of understanding (MoU) to settle the loan by handing over the flat. This person along with his family has occupied the flat and duly pays the maintenance charges. He claims to be a member on the basis of the MoU and regular bill payment. Is it legally tenable? — Aakash Khanna, Andheri A.
The partnership will come to an end upon the death of one of the two partners. In the absence of any legal document authorising the brother-in-law to hand over the flat, the said MoU will not stand the test of law. Hence, the occupier is not the owner as possession and ownership are two different aspects. The ownership can be transferred by way of sale agreement, gift deed or by relinquishing the right through a release deed. There has to be a registered document between the transferor and the transferee. Section 154B-13 of the Maharashtra Co-operative Societies (MCS) Act provides that upon death of a member, the transfer of shares, right and interest in the property can be on the basis of testamentary documents, succession certificate, legal heirship certificate or document of family arrangement executed by legal inheritors.
A duly nominated person can also stake claim. However, an MoU does not find place in the specified documents and hence the occupant cannot be admitted as a member. Your society should ask for any of the aforesaid documents on the basis of which the flat can be transferred to the occupant. In case, the deceased Member has any other legal heir, they may be contacted to settle the issue.
Q. I took possession of my flat after making full payment, including the advance maintenance charges of `42480, to the developer. However, the society is demanding additional maintenance and has labelled me as a defaulter. The managing committee is harassing me and has even disabled my face recognition for digital access to the building, forcing me to make an entry in the visitor register each time. They are also threatening to stop collecting the garbage from my flat. The society has distributed the maintenance of 90 unsold flats among the existing members. Please advise? Rakesh Sinha, Borivali A.
The existing members are not required to bear the maintenance cost of unsold flats. It's the developer's responsibility for paying maintenance charges until unsold or unoccupied flats are handed over to buyers. Section 11(4) (e) Real Estate (Regulation and Development) Act, 2016, provides that the promoter should pay all outgoings until the transfer of the flat's physical possession to the allottee.
The developer has to cover the maintenance costs for the unsold flats so that the society has sufficient funds and that the members are not burdened financially. Once the flats are sold, the responsibility shifts to the new owner. The developer has to transfer the maintenance charges collected upfront from the allottees to the society. In case of failure, the developer is liable – even after transfer of property to the society – to pay such outgoings and penal charges, if any, to any authority or person concerned. The developer is also liable for the cost of any legal proceedings, which may be taken by such authority or person. The society should include a clause in the byaws to collect maintenance charges from the developer for the unsold units to protect the interest of the members. A member shall be deemed to have committed a default when he fails to pay dues within three months from the date of service of bill or notice or due date; whichever is later.
Bylaws 69 to 71 provides for the payment of society’s charges, review of default cases and interest on unpaid charges. You may represent your case and justify your stand to the general body. If still aggrieved, you may file a complaint with the district deputy registrar (DDR). The committee can initiate action to recover the dues as per section 154B-29 of the MCS Act, but cannot restrict access to essential services, including water, electricity, lights in common spaces, elevator and sanitary services like garbage collection. Digital access, if available in the building, also may be termed as an essential service. For alleged harassment and threatening by the committee, you may file a police complaint and also lodge your grievance with the DDR.
To get details on exclusive and budget-friendly property deals in Mumbai & surrounding regions, do visit: https://budgetproperties.in/
The questions are answered by Sharmila Ranade, a legal expert associated with Mumbai Grahak Panchayat. The questions, in brief, may be sent to mpanchayat@gmail.com
