CS Dr Vedula Gopinath, Advocate/Arbitrator

From 1970s Housing aspect has been well developed in India and with the growth of economy and Government/Banking sector giving helping hand. “Roof above the head “even for poor sections of the society is a reality and no more a dream as hitherto. Major part of the Urban Land is now utilized for housing. Even the middle class and richer communities of the society prefer gated communities with the entire infrastructure including recreational facilities. Many Gated Communities with modern living infrastructure facilities have sprung up.

While the land belongs to owner, builder builds the flat, flat owner is the owner of the flat apart from proportionate ownership in the land. Question arises, legally, as to the ownership and responsibility for the common facilities and the attendant land.

Admittedly, Maharashtra Government, Bombay (now Mumbai) flat owners taken the lead for regulatory efforts. Thus Maharashtra Apartment Ownership Act 1970 became model law for other State Legislatures, basing on which each state legislated housing legislation concerning construction and ownership of flats.

Under this background, State legislatures have enacted regulatory Acts, rules and regulations. As far as Andhra Pradesh is concerned, The Andhra Pradesh Apartments (promotion of construction and ownership) Act, 1987 has been conceived after a careful examination basing on the report of the then Andhra Pradesh State Law Commission.

For a quick understanding, basic definitions of Andhra Housing legislation is narrated below. (list illustrative and not exhaustive)

  • Apartment – Under the Andhra Pradesh Apartment Ownership Act, an apartment is given as a part of property that has one or more rooms separately constructed as a unit in the overall building. This enclosed space can be used for residential purposes, for commercial or office purposes or for any other form of independent use. The enclosed unit should also have an exit that leads to public areas like streets or roads or to a common area that is shared.
  • Association of Apartment Owners – There are separate bye laws that take care of the formation of an apartment association and its constituting members. The Andhra Pradesh Apartment Ownership Act defines an apartment association as a group all apartment owners.
  • Building – A structure that has five or more apartments or two structures that have more than two apartments each can be classified as a building, according to the Andhra Pradesh Apartment Ownership Act.
  • Common Areas – Common areas in an apartment are mentioned in the Declaration. The Andhra Pradesh Apartment Ownership Act includes basements, gardens, cellars, parking areas, main walls, terraces, halls, stairways, corridors, entrances, exits and lobbies, and the entire space of land used during construction under the definition of common areas in an apartment complex.
  • Property – The overall extent of land used, the common areas and the buildings together constitute the ‘property’.
  • Limited Common Areas – The common areas which can be used only by a particular section of the apartment complex are described as the limited common areas.

There have been many ameliorative, healthy living and safety protective aspects have been well laid in this legislation and mostly some of the disgruntled builders have a tendency for non-observance and non-compliance of the construction provisions and Government official monitoring lacks luster and results in unsatisfactory and unsafe flats building. Much litigation has taken place regarding non-observance, non-compliance of provision of these provisions. Some of these provisions are flouted more than observance. Due to non-monitoring by Government agencies, such non-compliances and irregularities goes unabated.

It is an open common practice that pent house construction does not have prior approval and the Legislature and Government too shall compromise such constructions under the guise of REGULARISATION SCHEMES IN THE INTESREST OF REVENUE. If any accident takes places, the actual facts and realities shall be unearthed. Mostly the owner and builder shall have contractual understanding of owning the pent house. In the legal view, it is a common area and should belong to the flat owners. Some of the progressive builders earmark this open space for morning waling and for playing by children of residents apart from solar power locating solar power generating equipment.

Against the requirement of Builder handing over the common facilities to flat owners (in the form of Residents Welfare Society to be registered under Society Registration Act),many Housing Complexes are having unregistered Societies while maintenance activities are under the control of the Builders either directly or indirectly.

An illustrative list of judicial pronouncements given below for the purpose of reminding the flat owner’s rights and privileges.

 SUMMARY OF APARTMENT OWNERS ACT JUDGEMENTS

  1. Many Consumer Forums and Civil Courts gave good relief to the intending purchasers of flats and Flat owners due to delay in construction as also for defective constructions.
  2. Registering a society of Flat owners is mandatory
  3. Promoter(builder) is made trustee for the deposits made by the inending purchasers of flats and such money should be used for the purpose for which it is intended.
  4. Civil Court is having jurisdiction to take legal action against the builder or promoter if the construction is not carried on according to approved plans and specifications.
  5. No alteration or extension can be made in residential housing complexes without consent of all the residents (flat owners)
  1. No commercial use of the flats constructed for housing purposes (without consent of the flat owners)
  1. Flat owners can bring legal action against Government Regulatory agencies (including Urban Development Authorities/Municipalities/Town Planning organizations) if amendments made to the original approval without the consent of the flat owners and intending purchasers of flats.
  2. Flat owner can object illegal construction of neighboring places.Neighbou may question unauthorized construction.
  3. Parking place is a common place to be shared by flat owners and if any undertaking given by flat owner not claiming parking place is illegal.
  4. Security deposit amount is required to be handed over to the Flat Owners Society on formation.

Thus the Flat Owners are having rights and privileges apart from obligations and duties.

There have been very distinctive advantages of having a Registered Society and the Legislation calls for welfare and safety of the residents and only the inmates and Residents/owners should govern their own welfare and safety activity in the form of a Registered Society.

While in conclusion, flat owners before buying a flat should undertake due diligence of the safety and legal aspects of the Building and after living in the flat should maintain and govern themselves in the aspects of welfare and safety.

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Ps. This article is written as a guidance note to Flat owners and writer has no prejudice or ill-will against the Builders community at all. The writer strongly believes that builder community is playing vital role in the housing development.

(Author can be reached at vgnath@gmail.com)

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