Tower on common terrace could jeopardise structural stability

 Legally Speaking - Property and Housing Laws | By Solicitor Gajanan Khergamker

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Despite most of us resisting the move, our CHS committee members are keen on installing a cellphone tower on the terrace of our building that’s about three decades old. Although we have registered out objections in writing and expressed concerns of harmful radiations generated and after-effects, the committee seems all set to go ahead with its plan. How can we stop this act which is against our collective will?

- Suresh Mirchandani, Goregaon

Along with other society members, you could approach the local civic authorities and request for a copy of the permission granted to the structure through an application made under Right to Information. 

Within a month, you should receive a copy of the same. If there has been no application made for the tower which, as you claim, has been given a go-ahead despite objections by society members and the absence of a stability certificate from the civic authorities, they will take preventive action by issuing a notice against the society / cellphone company putting up the tower.

When Registering A POA Is Compulsary

Being a senior citizen and crippled with ill-health and other age-related health problems, I am unable to travel & have therefore given a notarised Power-of-Attorney to my nephew to handle all matters pertaining to above property such as day-to-day work, renting, registration etc. Is it compulsory to register the Power-of-Attorney?

- Sarendra Goyal, Bhandup

According to the Power of Attorney Act 1882, it is settled that an instrument which creates a right or interest in the rents, profits, benefits and income from an immovable property, is a document, which is compulsorily registrable. 

A document creating an assignment of a debt will not require registration, but a document assigning rents will require registration. If the Power-of-Attorney in question is to be treated as creating an equitable assignment of rents, it requires registration and if not registered will be void and unenforceable. 

In other words, where the power-of-attorney does not merely authorize the donee of the power to act as the principal’s Agent to perform the acts stated therein, but creates, declares, assigns, limits or extinguishes any right, title or interest in immovable property of the value of one hundred rupees and upwards in favour of the donee of the power, it is compulsorily registrable. 

So, if the Power-of-Attorney in question creates an equitable assignment of rents, it requires registration and if not registered, will be void and unenforceable. 

Altering Illegally Is A Ground For Expulsion

I have a huge balcony which isn’t being used at all. I plan to break down the wall separating the balcony from a bedroom and include it within the bedroom to make it larger. My society’s managing committee members have been warning me against doing so saying that I will have to face the consequences if I alter my premises. They have gone to the extent of saying that I can even be expelled for doing so. Is it possible for a society to expel a member for altering his own home? Please advise.

- Mohit Jain, Fort

Besides the BMC being in a position to demolish your illegal structure, your housing society can also expel you by law. 

A member of a housing society must obtain prior permission of the society and Municipal Corporation before constructing any permanent structure in his apartment or making any permanent alteration to the existing structure. 

If a member violates these provisions, the society can get the structure demolished by complaining to Municipal Corporation. Besides, the society can also take action against the member for violating the society’s Bye-Laws. 

For instance, the society can pass a resolution demanding compensation for the inconvenience caused to the other members or even expel the member for breach of Bye-Laws.

But then, all this can easily be avoided, provided the member who want to make some structural changes in his/her apartment, seeks pre-requisite permission from the society and Municipal Corporation. The rationale is to ensure that the structural changes made – both external and internal - do not hamper the structural stability of the building. 

The correspondence must state the exact details of the changes that you wish to make to your apartment. That apart, other relevant information must also be provided. 

For instance, the name, qualifications and area of specialisation of the structural engineer who’ll carry out the changes; an undertaking that the adjoining apartments will not be damaged and no inconvenience shall be caused to the other members. And, if at all there’re some damages, you will be obliged to compensate. 

Though the basic procedure to go about making structural changes within one’s apartment is the same, there may be some minor differences vis-à-vis the internal management of every housing society. You may need to obtain the necessary permission from your housing society as well as the BMC to make the requisite changes.

Executing structural changes in one’s apartment is a long-term decision and it’s essential to keep all the paper work in order, get all the required permission so that the entire process is as smooth-sailing as possible, not just for you but also for the other members of the housing society.

This monthly legal column has been generated for The Draft News, Without Prejudice and In Good Faith. To book a Legal Consultation, Call 8080441593.