tag:blogger.com,1999:blog-20351033185021064332024-02-20T20:26:18.711+05:30Property And Land LawsProperty and Land Laws is a first-of-its-kind initiative in India, launched by Solicitor Gajanan Khergamker, aimed to educate and empower stakeholders and ensure the reach of Property and Land Laws affecting them, in principle and practice. Living in swiftly-growing metropolitan cities particularly in rental, leased or licensed premises entails dealing with a host of legal issues unique to homes and covered by pertinent state's laws on Redevelopment, Rules and general laws regarding Property.Unknownnoreply@blogger.comBlogger21125tag:blogger.com,1999:blog-2035103318502106433.post-51107554657774381652023-02-05T11:50:00.001+05:302023-02-05T11:50:12.985+05:30Tower on common terrace could jeopardise structural stability<p> <b><i>Legally Speaking - Property and Housing Laws | By Solicitor Gajanan Khergamker</i></b></p><table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjFrTQXfYF75IaXArBFq0bTJ5esWgzh7DLLQtvl1mjIhwv1TOdToMnmT2XQZcEupwEzwzAtmkuo4fzeaWSfH89n6ha3xTNYSaw-BGLyjBwJHabnK5mbwYaGifei_FtFbIT6PNUlYQEMqKVLzZJXQ4B2-cmfa4dAL7Q31GEbCoo-VkTMgxdIGEe5OOpe/s700/Mobile%20Tower%20on%20Society%20Terrace%20Law%20-%20The%20Draft%20News.jpg" style="margin-left: auto; margin-right: auto;"><img border="0" data-original-height="465" data-original-width="700" height="426" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEjFrTQXfYF75IaXArBFq0bTJ5esWgzh7DLLQtvl1mjIhwv1TOdToMnmT2XQZcEupwEzwzAtmkuo4fzeaWSfH89n6ha3xTNYSaw-BGLyjBwJHabnK5mbwYaGifei_FtFbIT6PNUlYQEMqKVLzZJXQ4B2-cmfa4dAL7Q31GEbCoo-VkTMgxdIGEe5OOpe/w640-h426/Mobile%20Tower%20on%20Society%20Terrace%20Law%20-%20The%20Draft%20News.jpg" width="640" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;"><i>Image is for representational purposes only</i></td></tr></tbody></table><div><br /></div><div><div><b>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?</b></div><div><i>- Suresh Mirchandani, Goregaon</i></div><div><br /></div><div>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. </div><div><br /></div><div>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.</div><div><br /></div><div><b><i>When Registering A POA Is Compulsary</i></b></div><div><br /></div><div><b>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?</b></div><div><i>- Sarendra Goyal, Bhandup</i></div><div><br /></div><div>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. </div><div><br /></div><div>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. </div><div><br /></div><div>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. </div><div><br /></div><div>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. </div><div><br /></div><div><b><i>Altering Illegally Is A Ground For Expulsion</i></b></div><div><br /></div><div><b>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.</b></div><div><i>- Mohit Jain, Fort</i></div><div><br /></div><div>Besides the BMC being in a position to demolish your illegal structure, your housing society can also expel you by law. </div><div><br /></div><div>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. </div><div><br /></div><div>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. </div><div><br /></div><div>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.</div><div><br /></div><div>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. </div><div><br /></div><div>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. </div><div><br /></div><div>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. </div><div><br /></div><div>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.</div><div><br /></div><div>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.</div><div><br /></div><div><b><i>This monthly legal column has been generated for The Draft News, Without Prejudice and In Good Faith. To book a Legal Consultation, Call 8080441593.</i></b></div><div><br /></div><div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgKNyWugAxkN6uXLTvNaLbXNAFbXruTfSi5jP-CVe4UZjOrfbIYz1C5Fm5ZE_cMsBP0pwC00GyG1ALPjWa9lvnVW88O31Sd6sEF-SHaHv5KO7ykH1qaIbLL0uIiAr8wFhPvS-L4ZKQ-mQv9Yl_JlKCbdZVmSlUDRhdYDbmXEbUjTrz_mppMqHskhqqT/s1000/Housing%20Society%20Laws%20and%20Issues%20-%20Legal%20Solution%20-%20The%20Draft%20News.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="646" data-original-width="1000" height="414" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEgKNyWugAxkN6uXLTvNaLbXNAFbXruTfSi5jP-CVe4UZjOrfbIYz1C5Fm5ZE_cMsBP0pwC00GyG1ALPjWa9lvnVW88O31Sd6sEF-SHaHv5KO7ykH1qaIbLL0uIiAr8wFhPvS-L4ZKQ-mQv9Yl_JlKCbdZVmSlUDRhdYDbmXEbUjTrz_mppMqHskhqqT/w640-h414/Housing%20Society%20Laws%20and%20Issues%20-%20Legal%20Solution%20-%20The%20Draft%20News.jpg" width="640" /></a></div><div><br /></div></div></div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-10934730353078600462023-01-15T11:45:00.000+05:302023-02-05T11:47:48.073+05:30Onus of Leakage Repairs Rests Squarely Upon CHS<div><i><b>Legally Speaking - Housing Laws | By Solicitor </b></i><i><b>Gajanan Khergamker</b></i></div><div><br /></div><div>For Cooperative Housing Societies across Maharashtra, particularly Mumbai, it’s the issue of water leakage that is usually the bone of contention. </div><div><br /></div><div>The Bombay High Court recently allowed a flat owner to recover over Rs. 46 lakhs from a cooperative housing society as expenses for repairing the building terrace which the society had neglected since 1992 placing the issue of the onus of terrace repairs and ensuing water leakages, squarely on the managing committee.</div><div><br /></div><table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto;"><tbody><tr><td style="text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhZyFnWKoiEWT4LY0sONseb54VBkkOkABOR_DzHr1-HCsyxY5ZsyAa9Wpgzj-iL88EEco2QP3fw9j7496Rs-EtwKZnnfmdlaL5H0al-MfMAGOsgih6-UZ-h_MaxPBUx6DvGQdaod3_1GA-eEQWJg32fj9zl-gUN2NXd_r5voX9V0U1ZBlD3C_mx0t5t/s700/Cooperative%20Housing%20Society%20Mumbai.jpg" style="margin-left: auto; margin-right: auto;"><img border="0" data-original-height="466" data-original-width="700" height="426" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEhZyFnWKoiEWT4LY0sONseb54VBkkOkABOR_DzHr1-HCsyxY5ZsyAa9Wpgzj-iL88EEco2QP3fw9j7496Rs-EtwKZnnfmdlaL5H0al-MfMAGOsgih6-UZ-h_MaxPBUx6DvGQdaod3_1GA-eEQWJg32fj9zl-gUN2NXd_r5voX9V0U1ZBlD3C_mx0t5t/w640-h426/Cooperative%20Housing%20Society%20Mumbai.jpg" width="640" /></a></td></tr><tr><td class="tr-caption" style="text-align: center;"><i>Image is for representational purpose only</i></td></tr></tbody></table><div>"Court is of the view, had the Society repaired and maintained overhead terrace on the 8th floor, Disputant (flat owner) would not have suffered over a period, since 1992 till date. Indisputably, acts and omissions of the Society call for interference in Disputant's rights to live peacefully and enjoy the flats...", it held. </div><div><br /></div><div>The court was tackling a society's writ petition challenging Maharashtra State Co-operative Appellate Tribunal's award to the flat owner for recovery of expense and damages. The court also imposed cost of Rs. 2 lakhs on the society payable to the flat owner who suffered due to leakage from the overhead terrace despite multiple complaints to the society.</div><div><br /></div><div>In 2021, while observing when a leakage is external, it is the responsibility of the co-operative housing society to fix it, a magistrate’s court convicted a society in Chembur and its chairman and secretary, directing them to pay a fine of Rs 10,000 each for ignoring a shop-owner’s request to repair the damage for almost a decade. </div><div><br /></div><div>The court said the leakage would have to be fixed within two months, failing which they would face action. Atul Cooperative Housing Society, its chairman Arun Baghchi and secretary Alok Sarkar were booked on a complaint from Purnachandra Dasgupta, a resident who owned three shops that suffered leakage. </div><div><br /></div><div>The court refuted the defence contention that since the accused were not the owners of the housing society, they were not liable to abate the leakages. </div><div><br /></div><div>When the defence contended the office-bearers were not the owners, the court held that the building is owned by the society. “After formation of the cooperative housing society, the office-bearers become responsible to take care of every issue relating to the premises of its members. It is well-known that if the leakages are from internal side, then it has to be taken care by the members themselves. However, if the leakages are from external side, then those have to be taken care by the society, that is, office-bearers of the society,” the magistrate’s court said. </div><div><br /></div><div>While the defence claimed that the court could only pronounce the sentence and only the cooperative court had the jurisdiction to give directions to fix the leakage, the magistrate’s court held it was not deciding any civil rights of the parties. </div><div><br /></div><div>“The object of any law is to protect the rights of citizens and administration of justice. It is unjustifiable that a citizen should run from forum to forum just to get basic reliefs, which often pertain to necessities. Therefore, I do not find any impediment to give directions regarding abatement of leakages,” the court said. The minimum fine amount prescribed by the act was Rs 2,000 and the maximum, Rs 10,000. Imposing the maximum fine, the court reasoned: “The evidence on record reveals that the shop owner is facing this issue of leakages since 2013-14.”</div><div><br /></div><div>The issue of ‘internal leaks,’ has been tackled by Bye-Law 67 of the Model Bye-Laws that details repairs and maintenance of the property of the Society that shall be carried out by the Society at its costs:</div><div>a. (i) All internal roads, (ii) Compound walls, (iii) External water pipelines, (iv) Water pumps, (v) Water storage tanks, (vi) Drainage lines, (vii) Septic tanks, (viii) Staircases, (ix) Terrace and parapet walls, (x) Structural repairs of roofs of all flats, (xi) Staircase lights, (xii) Street lights, (xiii) External walls of the building/ buildings, (xiv) All leakages of water including leakages due to rain water, and leakages due to external common pipeline and drainage line, (xv) Electric lines upto main switches in the flats (xvi) Lifts, (xvii) The damaged ceiling and plaster thereon in the top floor flats, on account of the leakage of the rain water through the terrace.(xviii) Generators,(xvix) also…</div><div>b. All the repairs, not covered by the byelaw No. 158(a) shall be carried out by the Members at their cost. The expenditure of the internal leakage due to toilet, sink etc., should be borne by concerned flat holders, with intimation to the Society.</div><div><br /></div><div>Also, Bye-law No 158 that tackles repairs and maintenance of the property of the Society to be carried out by the Society at its costs includes the issue of leakages: </div><div>a. (i) All internal roads, (ii) Compound walls, (iii) External water pipelines, (iv) Water pumps,(v) Water storage tanks, (vi) Drainage lines, (vii) Septic tanks, (viii) Staircases, (ix) Terrace and parapet walls, (x) Structural repairs of roofs of all flats, (xi) Staircase lights, (xii) Street lights, (xiii) External walls of the building/ buildings, (xiv) All leakages of water including leakages due to rain water, and leakages due to external common pipeline and drainage line, (xv) Electric lines upto main switches in the flats (xvi) Lifts, (xvii) The damaged ceiling and plaster thereon in the top floor flats, on account of the leakage of the rain water through the terrace. (xviii) Generators, (xvix) Security Appliances (CCTV, Intercom, Group Mobile, Mass Data Sharing Devices, Siren Bell) (xx) Rain Water Harvesting,(xxi) Sewerage, Storm water Drain & Water Treatment Plant (xxii) Common areas not specifically allotted, Swimming Pool, Gym, Sauna Bath, Coffee House (xxiii) Common Parking Space (xxiv) Solar and alternate energy devices. (xxv) Garden (xxvi) Community hall (xxvii) Wi-fi setup of the Society </div><div>b. All the repairs, not covered by the bye-law No. 158 (a) shall be carried out by the Members at their cost. The expenditure of the internal leakage due to toilet, sink etc., should be borne by concerned flat holders, with the intimation to the Society.</div><div><br /></div><div>Internal Leakages as clearly laid down by the Bye-Laws include leakages within one’s home due to toilet, sink, etc., the onus of whose repairs rests entirely upon the individual user.</div><div><br /></div><div>Now, very often cooperative housing societies insist that repair costs for issues such as leakage need to be split between the parties involved; Such as the one whose home is affected due to leakages from another located directly above.</div><div><br /></div><div>By legislation, and decided too, the cooperative housing society is the service provider and the flat-owner is the consumer. The question of demanding a service or compensation for deficiency of service from another flat-owner does not arise as there is no service provider-consumer relation between the two. </div><div><br /></div><div>The onus of providing a service here, rests squarely upon the cooperative housing society and the flat-owner remains the member and the recipient of service who has the right to avail it and move court in case of deficiency or negligence.</div><div><br /></div><div><i>This monthly legal column has been generated, without prejudice and in good faith, answering queries on the issue of leakages in flats and damages raised by Ganeshan Vishwanathan, Borivali | Shirish Gaekwad, Girgaum | Milind Joshi, Pune | CHS Secretary Vasanti Goel, Kalamboli and CHS Chairman Vimla Shah, Kandivali. Queries, general in nature, may be addressed to <b><u><a href="mailto:legal@draftcraft.in">legal@draftcraft.in</a></u></b>.</i></div><div><i><br /></i></div><div><i>Visit <b><u><a href="http://www.thechamberpractice.com">www.thechamberpractice.com</a></u></b> for details on </i><i>Legal Consultation and Intervention.</i></div><div><br /></div><div class="separator" style="clear: both; text-align: center;"><a href="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi9fg7D4UW3XL5OU6j1SQks_XyURM2duAtLBe1rNS1YdTdx48bt-dA42txfZ69wzt-xlRJbpovo8HYaPfpdxzw1g694PTOSb-_-EDwTsGaK_SOOAjajuEI4GOMDn3HRUpz8ODi-Xultqh1tEqKe08lpaYdGA9m7NklJ4zbUuKBbi64C0Is6tOt4t5R3/s700/Legally%20Speaking-Housing-Laws-Gajanan-Khergamker.jpg" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="453" data-original-width="700" height="414" src="https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEi9fg7D4UW3XL5OU6j1SQks_XyURM2duAtLBe1rNS1YdTdx48bt-dA42txfZ69wzt-xlRJbpovo8HYaPfpdxzw1g694PTOSb-_-EDwTsGaK_SOOAjajuEI4GOMDn3HRUpz8ODi-Xultqh1tEqKe08lpaYdGA9m7NklJ4zbUuKBbi64C0Is6tOt4t5R3/w640-h414/Legally%20Speaking-Housing-Laws-Gajanan-Khergamker.jpg" width="640" /></a></div><div><br /></div>Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-60510389176700285352020-06-29T15:16:00.008+05:302023-02-05T12:06:21.089+05:30'Societies cannot bully, force members to stop meat business, it’s illegal, unconstitutional'<div dir="ltr" style="text-align: left;" trbidi="on">
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<b>Nobody can be forced to make ‘applications for change in business’ or prevented solely because it may involve meat. Such moves are violative of one’s fundamental freedom of trade and commerce as laid down in the Constitution of India through Article 19 (1)(g). Any law or rule ‘created’ by the society, to affect this right, is outright unconstitutional</b></div>
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<b><i>Sir,</i></b><br />
<b><i><br /></i></b>
<b><i>I am an owner of a commercial premises based at Colaba in Mumbai from where I ran my travel agency for long but have now had to close it down owing to the detrimental effect the global COVID-19 pandemic has dealt upon the tourism industry. I am in the process of converting my business to a packed frozen food distributorship.</i></b><br />
<b><i>> Do I need to take any permissions from the cooperative housing society where my premises stand?</i></b><br />
<b><i>> Also, can anybody from the society take objection to the nature of my work, frozen meat products in my case?</i></b><br />
<b><i>> I have been asked to seek 'permissions' for the same through my society. Is it necessary?</i></b><br />
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<b><i>Regards,</i></b><br />
<b style="font-style: italic;">Gulshan Harjani, Mumbai </b></div><div style="text-align: right;"><b><i><br /></i></b>
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Mr Harjani,</div>
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Your issue isn't unique but extends to many members like you in some old housing societies across Mumbai and in certain cities particularly among highly-polarised and opinionated members across India.<br />
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The choice of food either by way of consumption, distribution or sale is always put into question, challenged and bullied into submission or extinction by some all-vegetarian or vegetarian majority filled cooperative housing society.<br />
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All of this happens without the basis of law. Now, for the record, any property owned by an individual in a society, either in the form of residential or commercial premises, belong in all entirety to the share-holding owner member without the interference of anybody else in person or through a collective, however official, like a managing committee of a cooperative housing society.<br />
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You have the full and final rights over your premises and can exercise personal choice well within the limits as laid down by law.<br />
<blockquote class="tr_bq">
<b>No Managing Committee or another member can interfere with that right that is vested into you by the law of the land.</b></blockquote>
Your personal rights over your property must be within the ambit of the law - that is in accordance to the licensing processes as laid down by the industry in question such as the food authority in the case of the food industry, the local civic authority for the shop and establishment processes, police clearances for the purpose of non-resident/out-of-town workers’ identification and the more recent norms of physical distancing, limits to number of workers at workplace as laid down by the state government, wearing of masks and other such COVID-19 norms.<br />
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That apart, should your society's managing committee demand you seek permissions for the initiation of any new business or conversion to another, you must tell them to put it down in writing and immediately proceed to the Registrar, police and legal authorities making pertinent representations before them.<br />
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You are not compelled by, in your case, the Maharashtra Cooperative Societies Act or Maharashtra Cooperative Societies Rule or the Model Bye Laws, to submit such a demand. Nobody can act against your own interests with regard to your own property.<br />
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Any attempts to do so tantamount to a violation of your personal rights, fundamental freedoms and cooperative housing society laws.<br />
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<b>Often, a few high-handed Managing Committee members, spurred by their own food consumption patterns, attempt to force a few members - usually in minority - to fall in line and comply. </b></blockquote>
This they do by passing wrong and illegal representation to the authorities such as police and civic on falsified grounds of 'nuisance' and even show 'resolutions' towards this action. Any 'resolution' signed by any managing committee whether voted in majority or even in full, is illegal and must be ignored till it is ratified by the Registrar who is bound to act within the law.<br />
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No society can decide what its members eat and trade in, over and above the restrictions laid down by law.<br />
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And, should any member or society feel that they are inconvenienced by the action of any such individual, they may adopt a legal route and file a case against the member after serving a legal notice.<br />
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Forcing a member to comply by sheer force of numbers or threats of complaints and action isn't just wrong but invites relevant action under the law.<br />
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You may approach the police for threats or imminent interference with your rights as a free owner, the court should you wish to file a suit against the society, the Registrar for harassment by the managing committee or any of its members or the Consumer Court for deficiency in service by the managing committee members and get an order for redress or compensation to loss of business as suffered.<br />
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Solicitor Gajanan Khergamker<br />
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<b><i>Opinion provided here is in good faith and Without Prejudice. Cooperative Housing Society members victimised by arbitrary rules and laws created by errant committees or Managing Committee members wishing to address issues created by offending members may send in their legal queries. To avail a legal service, an expert opinion or an appointment with Solicitor and Property Law Expert Gajanan Khergamker, call 8080441593 or contact <a href="https://propertyandlandlaws.blogspot.com/p/contact.html">here</a>.</i></b><br />
<b><i><br /></i></b>
<b><i>Visit: <a href="http://propertylaws.thechamberpractice.com">propertylaws.thechamberpractice.com</a></i></b><br />
<b><i><br /></i></b>
<i>Here goes a printer-friendly version of the expert column. The image may be downloaded and shared 'for public good', 'as is' and 'without prejudice'.</i><div class="separator" style="clear: both; text-align: center;">
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Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-46766996486223374742020-06-04T22:16:00.000+05:302020-06-29T08:36:16.015+05:30Making up rules in time of COVID-19<div dir="ltr" style="text-align: left;" trbidi="on">
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<b><i>By Gajanan Khergamker</i></b></div>
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The lockdown relaxations have led to a surge of residents returning to Pune back to their homes from other cities and towns. </div>
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Oddly, certain cooperative housing societies have, claiming to 'protect members' been insisting on NOCs from the police station even insist on self-imposed quarantine processes for residents follow.</div>
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Now this sort of legislating is outright illegal as the police have put nothing in place by way of NOCs for residents arriving from outside Pune, nor has any cooperative housing society any bonafide authority to instruct any resident to undertake quarantine by themselves.</div>
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The Pune police, on their part, have also made the position clear. Any society secretary or chairman indulging in these activities can be booked for harrassment and intimidation by the police.</div>
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Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-5892088485432314382020-05-13T11:49:00.000+05:302020-06-29T11:50:03.878+05:30Managing Committees Can't Create, Break Law In COVID Times<div dir="ltr" style="text-align: left;" trbidi="on">
<b><i>By Gajanan Khergamker</i></b><br />
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Cooperative Housing Societies across India are bound by the law of the state in which they are located. In particular, the Cooperative Laws of the state, the rules and the bye-laws. Housing societies, by law, are permitted to make bye-laws or amend the model bye-laws but only to further the existing law and within the parameters of the common law of the land. Which is why, any law ‘amended’ by a managing committee must be done so, for example, first through an Annual General Body Meeting and, concurrently, by ratification of the minutes detailing the same, by the pertinent Registrar.<br />
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<table align="center" cellpadding="0" cellspacing="0" class="tr-caption-container" style="margin-left: auto; margin-right: auto; text-align: center;"><tbody>
<tr><td style="text-align: center;"><a href="https://1.bp.blogspot.com/-ttm0zP7tftw/XrvBkSBpRII/AAAAAAAACZo/VNWvr1bGF7wzWiF7pvhQReVZH19m8i8sQCLcBGAsYHQ/s1600/MD.jpeg" imageanchor="1" style="margin-left: auto; margin-right: auto;"><img border="0" data-original-height="394" data-original-width="700" height="360" src="https://1.bp.blogspot.com/-ttm0zP7tftw/XrvBkSBpRII/AAAAAAAACZo/VNWvr1bGF7wzWiF7pvhQReVZH19m8i8sQCLcBGAsYHQ/s640/MD.jpeg" width="640" /></a></td></tr>
<tr><td class="tr-caption" style="text-align: center;">A police personnel on duty during the lockdown at Mumbai's Marine Drive</td></tr>
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Any rules or laws that are arbitrary, discretionary or in violation of the larger law in question – such as the Maharashtra Cooperative Societies Act/Rules or Bye-Laws of say Maharashtra – could be struck down for being discretionary, ultra vires even malafide in common law or be acted upon by the police should it be a cognisable offence as per the Indian Penal Code. For example: A managing committee’s act of defaming a member through notices, paperwork or publication could be treated as a civil or a criminal offence apart from being a society law irregularity.<br />
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That said, in the time of COVID-19 and the lockdown, cooperative housing societies have been making rules that often seem excessive and violate the common law itself. These rules – like the ones permitting use of common spaces like the terrace by members during lockdown - can be struck down easily by complaining to the local authorities such as police, local civic authority, Registrar or a pertinent Court of Law as the case may warrant. The police can, in such cases, summon the ‘law-making’ managing committee and penalise them for such acts in contravention of Disaster Management Act and Lockdown rules of social distancing, even arrest them for the same.<br />
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Managing Committee members are bound by the law of the land and cannot be allowed to make their own laws without being questioned. Members must be on the vigil for such excesses and counter them legally as and when the need arises. Yet, managing committees creating rules well within legal framework and for public good must not be countered mischievously as a rule. The greater good must be taken into consideration, at all times while never compromising on basic human rights.<br />
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<b>(Cooperative Housing Society members victimised by arbitrary rules and laws created by errant committees or Managing Committee members wishing to address issues created by </b><b>offending </b><b>members may send in their legal queries to Solicitor Gajanan Khergamker. For details, click <a href="https://societymattersindia.blogspot.com/p/contact.html" target="_blank">here</a>)</b></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-19566559710956401082020-05-01T12:13:00.000+05:302020-06-29T13:04:23.011+05:30CHS bye-laws do not have force of law<div dir="ltr" style="text-align: left;" trbidi="on">
<b><i>By Gajanan Khergamker</i></b><br />
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Under the Maharashtra Cooperative Societies Rules 1961, a Registrar may direct a society to make bye-laws in respect of all or any of the matters referred in Rule 8 of the Co-operative Societies Rules. However, the bye-laws of the co-operative societies do not have force of law.<br />
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In the case of <i>Co-operative Central Bank Ltd. v. Additional Industrial Tribunal</i>, Andhra Pradesh, Hyderabad, the Supreme Court observed the bye-laws that are contemplated by the Act can be merely those which govern the internal management, business or administration of a society. The laws so framed or adopted by the Society are binding on the society and the members but not on the non-members of the society and bye-laws cannot claim force of Statute even though they are framed under rule 8(a).<br />
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In the case of housing societies, bye-laws cannot claim force of law so as to bind stranger non-members such as licensees. In <i>Sardar Ajit Singh v. Saibaba Co-operative Housing Society Ltd</i>, it was held that a licence by member without previous written consent as per bye-laws cannot make the licence illegal.<br />
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Where the appointment of office bearer of a society is concerned, the definition of the word ‘officer’ specifically includes the Chairman and Vice-Chairman, a member of the committee and any other person elected or appointed under the Act, the Rules, the Bye-laws to give directions in regards to the business of the society.<br />
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If clause (o) of the rules 8(1) of the Rules is read with the definition of the word ‘officer’, the mode of appointment of the Chairman and Vice-Chairman is thus clearly covered by clause (o) of rule 8(1).<br />
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In <i>Wasudeo Gulabrao Deshmukh v. State of Maharashtra</i>, 1995, it was held that the society is competent to make or Registrar can direct the Society to make Bye-laws upon the said question of appointment of the Chairman and Vice-Chairman.<br />
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When a society has been registered the bye-laws of the society as approved and registered by the Registrar shall be the bye-laws of the society.<br />
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In <i>Wasudeo Gulabrao Deshmukh v. State of Maharashtra</i>, 1995, it was observed that the bye laws must be constructed in manner so as to reflect intentions of its framers as also to make them effective and workable.<br />
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In <i>A.I. Umarani v. Saraswat Subarban Co-op. Housing Society Ltd. 1985</i>, it was held that it is well settled law that over the Bye-laws, the Rules will have precedence and over the Rules, the Act will have precedence for binding effect and no bye-laws can be adopted contrary to the provisions of either Act or the Rules.<br />
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<i style="font-weight: 700;">To avail a legal service, an expert opinion or an appointment with Solicitor and Property Law Expert Gajanan Khergamker, call 8080441593</i></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-56187216649965964972020-04-22T12:24:00.000+05:302020-06-29T12:24:32.914+05:30Illegal for Secretary, Manager to ‘cut off’ essential supplies <div dir="ltr" style="text-align: left;" trbidi="on">
<b><i>By Gajanan Khergamker</i></b><br />
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One hears about it happening all the time. However, the law on the issue of cutting out essential supplies is clear. No person, who is a promoter or a management in-charge or connected with the management of a block or building of flats, whether as member of a managing committee, director, secretary or otherwise or is responsible for the maintenance thereof (hereinafter this section referred to as “the manager”), shall, without just and sufficient cause, either by himself or through any person, cut off, withhold, or in any manner curtail or reduce, any essential supply or service enjoyed by the person who has taken a flat (or by any person in occupation thereof through or under him) in respect of the flat taken or agreed to be taken by him.<br />
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The person who has taken or agreed to take the flat or the occupier may, if the manager has contravened the provision of sub-section (1), make an application to the Court for a direction to restore such supply or service.<br />
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On enquiry, if the Court finds that the application or the person through or under whom he is in occupation has been in enjoyment of the essential supply or service, and that it was cut off or withheld or curtailed or reduced by the manager without “just and sufficient cause,” the Court shall make an order directing the manager to restore such supply or service before a date to be specified in the order.<br />
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The manager who fails to restore the supply or service before the date so specified shall, for each day during which the default continues thereafter, be liable upon a further direction by the Court to that effect, to fine which may extend to one hundred rupees.<br />
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Notwithstanding anything contained in any law for the time being in force –<br />
(a)<span style="white-space: pre;"> </span>In Greater Bombay, the court of Small Causes, Bombay,<br />
(b)<span style="white-space: pre;"> </span>In any area for which a Court of Small Causes is established under the Provincial Small Cause Courts Act 1887, such court, and<br />
(c)<span style="white-space: pre;"> </span>Elsewhere, the Court of the Civil Judge (Senior Division),<br />
Shall have jurisdiction to decide any application made under sub-section (2), and no other court shall have jurisdiction to entertain such application; but in Greater Bombay a bench of two judges of the Court or Small Causes, Bombay, which shall not include the judge who make such order, and elsewhere the District Court, may for the purposely of satisfying itself that the order made was according to the law, call for the case in which such order was made and the Bench or Court aforesaid or the District Judge or any judge to which the case may be referred by the District Judge, shall pass such order with respect thereto as it or he thinks fit.<br />
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Any manager who contravenes the provisions of sub-section (1) shall, on conviction, be punished with imprisonment for a term which may extend to three months, or with fine or with both.<br />
The offence under sub-section (6) shall be cognisable, and shall not be triable by any Court inferior to that of a (Metropolitan Magistrate, or a Judicial Magistrate of the First Class.)<br />
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For the purpose of this section, essential supply or service includes the supply of water, electricity, lights in passages and on staircases and lifts and conservancy or sanitary service.<br />
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Also, “withholding any essential supply or service” shall include acts or omissions attributable to the manager on account of which the essential supply or service is cut off by the local authority or any other competent authority.<br />
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<b><i>To avail a legal service, an expert opinion or an appointment with Solicitor and Property Law Expert Gajanan Khergamker, call 8080441593</i></b></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-71110117160220478962020-04-15T12:45:00.000+05:302020-06-29T12:45:52.219+05:30For Redevelopment, Permanent Alternative Accommodation Agreement Is Must<div dir="ltr" style="text-align: left;" trbidi="on">
<b><i>By Gajanan Khergamker</i></b><br />
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In the case of redevelopment, a development agreement is executed between the society and the developer on the land owned by the society by using available FSI, TDR, etc. The deal usually includes provision of new flats with additional area to the existing members at no cost. The consideration for redevelopment of the plot of land may also include rent, corpus, shifting charges.<br />
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The benefits of transfer of development rights move from the society to the developer through this instrument which records the transaction too.<br />
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Now, in turn for the transfer of development rights, the developer pays monetary consideration by way of cheques for rent and a corpus as well as in kind by way of a flat with free additional area to the members. As the cheque is a movable item, it needs no additional documents or registration processes by law.<br />
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However, with regard to the immovable property by way of new houses in the new project provided by the builder to the existing members as laid in the Development Agreement, a separate agreement - a ‘Permanent Alternative Accommodation Agreement’ - has to be executed. And, as per the Bombay<br />
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Stamp Act, Stamp Duty for the same has to be paid for the agreement which is also registered. Stamp Duty and Registration of the instrument is inevitable as the new flat will have a new number, new area and completely different floor space details as provided by the developer.<br />
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The property constructed by the developer as per the Development Agreement is transferred to the existing members. And, in order to establish the legal title of the new entity, a fresh and separate agreement in respect of the new flat has to be provided by the builder. Also, by law, any transaction of an immovable property exceeding Rs 100 needs to be in writing and has to be registered as required under the Registration Act, 1908.<br />
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The agreement for ‘Permanent Alternative Accommodation’ has to be mandatorily executed between the builders and the existing members failing which, the members the members will not have a clear and legal ‘title’ which will prevent them from selling their flats nor mortgage them or raise any loans.<br />
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It would be interesting to note, as per the amendment in Article 25(d) of the Schedule 1 of the Bombay Stamp Act 1958, even if the society gives an allotment letter in respect of the new flat in the new building, the same will be treated as an agreement and applicable stamp duty will have to be paid. It is, hence, mandatory to get the agreement executed for the new flat with the builder.<br />
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The Permanent Alternative Accommodation Agreement provides the much-needed legal standing to the flat purchaser that the new flat number, area, etc., is identified. Also, in the case of the developer failing to fulfill his commitment or breach of sorts, flat purchasers can initiate necessary legal actions against the builder under Maharashtra Ownership Flats Act, 1963.</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-24999716819573347232020-04-08T12:25:00.000+05:302020-06-29T12:25:21.274+05:30Verify title before investing in property<div dir="ltr" style="text-align: left;" trbidi="on">
<b><i>By Gajanan Khergamker</i></b><br />
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Before investing in property, it is advisable to appoint a legal consultant to inspect the original title documents of the property being purchased. If the title is not clear, there may be a huge number of complications arising in future. Firstly, no bank would provide a loan against a property without a clear title. It may be difficult to transfer share certificate of the society to your name and selling of property will not be simple either. Here goes a check list of documents that you should verify before buying a property<br />
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Firstly, you need to have the Conveyance Deed or Sales Deed in place. This is a deed document by which the title of the property is conveyed by the seller to the purchaser. Conveyance is the act of transferring ownership of the property from a seller to the buyer. This document will help you ascertain whether the property which you are buying is on land belonging to the society/builder/development authority in which the property is located.<br />
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And then, there’s the 7/12 extract which is a document issued by the Tehsildar or the concerned land authorities giving details such as the survey numbers, area, date from which current owner is registered as owner.<br />
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There’s also the Index II - a document issued by the office of the Sub-Registrar of Assurances which mentions the name of the seller and purchaser of a property for which the document is registered.<br />
The buyer may need to get a Search Report, which is a search of the title of the property is taken for a period of the last 30 years. This search report and title certificate can be obtained from one’s own advocate or if the search has already been conducted by the current owner then one can have his/her advocate inspect these reports to ascertain the title of the property.<br />
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If the land under consideration is agricultural and if one intends to develop the said land for residential / commercial / industrial use, then such agricultural land has to be converted to non-agricultural land and a Non Agricultural Order has to be obtained from the Collector of the District where the property is located.<br />
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With this, one needs to take the latest receipts evidencing the payment of Non Agricultural Tax. In cases done within the stipulated period then, there should be an order from the concerned authority extending the period.<br />
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Apart from these, you need to get a few more documents pertaining to the project / building in place.<br />
You need to get a Development Agreement in place. This is an agreement entered into by the builder with the landowner. It contains details regarding the terms and conditions on which the landowner has permitted development of his property. This is where the landowner engages a third party (i.e. the developer/builder) to develop and build on their plot of land. This agreement is generally accompanied by a Power of Attorney in favour of the Developer/builder.<br />
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An Approved Building Plan made by the Developer/builder needs to be approved by the Municipal Corporation or the concerned authority. The approved building plans need to be checked necessarily.<br />
There’s also the Intimation of Disapproval (IOD) issued by the local municipal corporation or any other local authority pertaining to any city or district to the developer/builder intimating that the proposed plan submitted by the developer/builder is disapproved to the extent of details mentioned in the said IOD.<br />
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This Commencement Certificate is given by the municipal corporation permitting the developer/builder to begin construction. This is done once the plans have been approved. This Completion/Occupation Certificate is given by the concerned authorities to the developer/builder once the said building is complete in all respects and fit for occupation.<br />
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<b><i>To avail a legal service, an expert opinion or an appointment with Solicitor and Property Law Expert Gajanan Khergamker, call 8080441593</i></b></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-13173468228269623982020-03-24T12:25:00.000+05:302020-06-29T12:26:12.975+05:30Documents needed to effect transfer of flat<div dir="ltr" style="text-align: left;" trbidi="on">
<b><i>By Gajanan Khergamker</i></b><br />
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In these cases, it is preferable to draft a will stating one's wishes and registering it. In these cases, either party can do without paying stamp duty. The benefit of the flat passes on to the heir who may be a beneficiary only after the demise of the person making the will.<br />
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After the demise of any member, his\her legal heir or heirs who want to have the flat transferred in their name should submit some relevant documents to the society so that it can transfer the flat from the name of the deceased member to the name of his heir.<br />
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Before beginning the procedure, the heirs should find out whether the deceased member has filed a nomination. In cases of no nominations, the applicant should issue a public notice in two local newspapers at his own expense. Only after doing so, an applicant should start the proceedings to transfer the flat in his / her name.<br />
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The applicant should submit the following documents to the society:<br />
(a)<span style="white-space: pre;"> </span>Along with an entrance fee, an application for membership in the prescribed form;<br />
(b)<span style="white-space: pre;"> </span>A certified true copy of the deceased member’s death certificate.<br />
(c)<span style="white-space: pre;"> </span>The original share certificate.<br />
(d)<span style="white-space: pre;"> </span>An undertaking from the applicant that s/he will use flats only for the purpose for which it has been allotted and no further change of user will be made unless he procures a writer permission of the managing committee.<br />
(e)<span style="white-space: pre;"> </span>An indemnity bond claiming to indemnifying the Society and its office bearers against any claim / suit or other legal proceeding by any other lawful and equitable heir/heirs of the deceased member of the society.<br />
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It is permissible in these cases for a society to insist on a list of legal heirs as well as an affidavit from the applicant which states that other legal heirs do not object to the transfer of the flat in the name of the applicant.<br />
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The society could also ask for a succession certificate which is issued by a civil court to the legal heirs of a deceased person. If a person dies without leaving a will, a succession certificate can be granted by the court to realise the debts and securities of the deceased.<br />
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<b><i>To avail a legal service, an expert opinion or an appointment with Solicitor and Property Law Expert Gajanan Khergamker, call 8080441593</i></b></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-73788898112218110702020-03-11T12:43:00.000+05:302020-06-29T12:43:54.175+05:30Understanding The Pagdi System<div dir="ltr" style="text-align: left;" trbidi="on">
<i><b>By Gajanan Khergamker</b></i><br />
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Where redevelopment is concerned, very often, in the island city particularly in olden parts, there’s reference to pagdi properties. The consideration paid to a landlord as a fine, premium or consideration (pagdi) has been legalised by Section 56 of Rent Control Act, 1999.<br />
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It is now also lawful for a tenant to receive any amount in consideration of the relinquishment or transfer of his tenancy. Incidentally, in the Rent Act, 1974 giving or receiving pagdi in cash was held ‘illegal’ hence there was extensive use of black money. Now too, in cities like Mumbai, for the transfer of tenancy, 33 per cent of the amount in transaction is paid in cash to the landlord to effect the transfer of tenancy or assignment.<br />
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If one wants to sell his home for Rs nine lakhs, he will have to pay Rs three lakh of the amount to the landlord. The purchaser of land in a pagdi system is said to be a tenant and has limited rights because a very nominal rent is collected by the landlord and receipt given accordingly. However, when there is redevelopment of the said property, the landlord usually makes a deal with the developer and stakes his claim of his 33 per cent and accordingly takes profit out of the property permanently.<br />
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Those who are in accommodation or in possession of the said property after redevelopment become the sole owners of the said premises. Section 56 of the Maharashtra Rent Control Act, 1999 reads as follows:<br />
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Sec. 56: Rights of Tenant and Landlord to receive lawful charges – Notwithstanding anything contained in this Act, it shall be lawful for<br />
1) The tenant or any person acting or purporting to act on behalf of the tenant to claim or receive an sum or any consideration, as a condition of the relinquishment, transfer or assignment of his tenancy or any premises;<br />
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2) The landlord or any person acting or purporting to act on behalf of the landlord to receive any fine, premium or other like sum deposit or any consideration on respect of the grant, or renewal of a lease of any premises, or for giving his consent to the transfer of a lease to any other person.</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-91448974110681987812020-03-03T12:27:00.000+05:302020-06-29T12:28:04.298+05:30Leave and license agreement must be in writing<div dir="ltr" style="text-align: left;" trbidi="on">
<b><i>By Gajanan Khergamker</i></b><br />
<br />
According to legal terminology, the term Leave and License is considered as a right to do or continue to do in or upon the immovable property of a grantor something, which would in the absence of such a right, be unlawful, and such right does not amount to an easement or an interest in the property. Before giving a premises on a leave and license basis, property owners should follow a number of precautions to safeguard their interests in the said property.<br />
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Firstly, they should make sure that the stamp paper should be in the name of the party to the agreement. The agreement should be drafted in writing referring to the particulars of the area of the premises, period of license, amount of compensation payable, amount of deposit if any and other particulars after which it should be countersigned by two witnesses. Under the Bombay Stamp Act, 1958, it has been stated that every agreement for leave and license or letting of the premises between a landlord and a tenant or the licensee should be in writing and should be registered.<br />
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After the commencement of the Act, there cannot be an oral agreement for tenancy or leave and license premises. The non obstante clause – ‘notwithstanding anything contained in this Act or any other law’ – gives an overriding effect to this provision and therefore it overrides the Transfer of Property Act, 1882, the Registration Act, 1908 and the Easements Act, 1882.<br />
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In order to maintain control over the premises, exclusive possession should not be given and only a duplicate key should be given. The original key should be kept safely with the licensor stating that under no circumstances should the key of the premises be changed. The licensor should also keep an affidavit of the licensee that discloses his full name and permanent address. The affidavit should clearly state that the licensee will vacate the premises unconditionally after the expiry period of the license and if he fails to do so, the licensor can get rid of his personal belongings with the help of the police.<br />
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The affidavit should also state that in the event the licensee prolongs his departure after the expiry of his license, the deposit amount given to the licensor by the licensee will also be forfeited and the licensee will be treated as a trespasser. Accordingly, he will also be liable to pay damages and compensation which will be more than two times of the agreed compensation with a penal interest at the rate of 18 percent or more.<br />
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<i style="font-weight: 700;">To avail a legal service, an expert opinion or an appointment with Solicitor and Property Law Expert Gajanan Khergamker, call 8080441593</i></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-42664799074258576412020-02-27T12:44:00.000+05:302020-06-29T12:44:28.787+05:30A Gift Of Property Invites Stamp Duty <div dir="ltr" style="text-align: left;" trbidi="on">
<b><i>By Gajanan Khergamker</i></b><br />
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Very often,a property is transferred by way of a gift and it is very vital to understand the significance of the transaction,as it stands starkly opposed to a sale or a lease.Under the Transfer of Property Act, 1882, a gift is defined as the transfer of a certain moveable or immovable property, made voluntarily and without consideration,by one person called the donor, to another, called the donee and accepted by or on behalf of the donee.<br />
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For a property to be categorised as a gift, it is important that it is a voluntary transfer by a donor to the donee; it should be an existing, movable or immovable property; there should be no consideration involved and it should be accepted by the donee. In the absence of any one or more of these requirements, the transaction fails to categorise as a gift.<br />
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The transfer of the gift has to be a voluntary action,which means that the consent of the donor should be free in nature and not forced. Section 11 of the Indian Contract Act maintains that a consent is not free, if it is procured by coercion, misrepresentation, mistake, force, fraud or undue influence.<br />
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A property transfer, made in consideration of an expectation of moral and spiritual benefit, or in consideration of natural love and affection, is a valid gift. In a particular case (<i>Munni Devi versus Chhoti)</i>, a gift deed of the property was executed by a mother in favour of her sole daughter, as she had promised to look after and maintain the mother throughout her life. The court held that the daughters promise to look after and maintain her mother was not enforceable in law,as such. This gift was made on account of natural love and affection and not in consideration of the assurance or promise of maintenance, by the daughter.<br />
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In case of a gift of an immovable property, it has to be a written instrument, duly signed by the donor and attested by at least two witnesses and duly registered. Although non-registration of the gift does not render the gift as void, it cannot be produced as evidence in the court, when it comes to the enforcement of the terms and conditions of the deed. Incidentally,the stamp duty levied on a gift of an immovable property is the same as that of conveyance and is levied on the market value of the property.<br />
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Where a gift comprises the donors whole property, the donee is personally liable for all the debts and liabilities of the donor at the time of the gift of the property, provided the donee accepts the gift. If the gift is in the form of two or more separate and independent transfers to the same person for several things, the donee has the liberty to accept one of them and refuse others, although the former may be beneficial and the latter, onerous.</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-19444778099565991162020-02-19T12:28:00.000+05:302020-06-29T12:28:41.615+05:30Defective construction and liabilities<div dir="ltr" style="text-align: left;" trbidi="on">
<b><i>By Gajanan Khergamker</i></b><br />
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At the time of taking possession of a building, it just isn’t practical to detect the latent defects in the construction of the structure. Such defects surface in due course of time after one starts living in the house. However, it must be realised that the liability of the builder continues, even after the delivery of possession by the builder, if on a later date, deficiency in construction work is detected.<br />
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In <i>Pushpa Pathania v. Rajasthan Housing Board, Kota</i>, cracks had developed after five years of construction of building, the National Commission agreed with the claimant that while taking possession, it would not have been possible for him to make out defects and deficiency in the construction of the house. Several defects might not be materially viable at the time of inspection and it is only after one starts living in a house that one finds out such defects and deficiency.<br />
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It was observed by the National Commission in <i>Megna P. Ltd. v. Salil Kumar Ghosh</i> that there was serious deficiency in services where the construction suffered from serious defects that were bound to aggravate with passage of time on exposure to sun, wind and rain. Similarly, incomplete construction and defects such as leakage of water and cracks in the walls were considered as deficiency in service on the part of the promoter-builder in <i>Anuradha Nivas Flat Owners’ Association v. Anuradha Estates</i>.<br />
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<b><i>To avail a legal service, an expert opinion or an appointment with Solicitor and Property Law Expert Gajanan Khergamker, call 8080441593</i></b></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-9447788616388546222020-02-12T12:44:00.000+05:302020-07-01T07:40:15.788+05:30Duty To Disclose Material Defect In The Property Or Title<div dir="ltr" style="text-align: left;" trbidi="on">
<b><i>By Gajanan Khergamker</i></b><br />
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It is generally the prerogative of the buyer to find out the defects in a property before buying it and also to make the seller rectify such defects.<br />
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However, the rights of the buyer to seek reasonable clarification and raise reasonable doubts have been statutorily recognised by section 55 (1)(a) to (c) of the Transfer of Property Act (TOPA).<br />
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It is statutory duty of the seller to disclose to the buyer about the material defect in the property of title.<br />
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The defects are of two types, patent defect and latent defect.<br />
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Patent defect is one which is apparent and can be discovered by the purchaser with ordinary care. For example, dilapidated condition of the property, use of right of way by the third party etc.<br />
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Generally, the patent defects, which are within the knowledge or without the knowledge of seller, are covered by the maxim caveat emptor, and it is for the buyer to know such defects.<br />
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Latent defects are those which the purchaser cannot discover with ordinary care. The seller is duty bound to disclose such defects to the buyer. For ex: underground drainage, pipelines laid for public drainage/water supply etc.<br />
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Material defect in one which is known by the purchaser he general would not prefer to buy the property or something which is never intended to be brought from the seller in terms of nature of the contract.<br />
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What defect constitute a material defect is a question of fact and depends on the facts and circumstances of each case. (Sec 55 (1) (a) of the TOPA).</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-50691565886725588272020-02-03T12:29:00.000+05:302020-06-29T12:29:54.060+05:30Valuating, transferring shares as per MCS Rules <div dir="ltr" style="text-align: left;" trbidi="on">
<i><b>By Gajanan Khergamker</b></i><br />
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The procedure to valuate a share is laid down in Maharashtra Cooperative Society Rule 23, according to which:<br />
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(1) Where a member of society ceases to be a member thereof, the sum representing the value of his share or interest in the share capital of the society to be paid to him or his nominee, heir or legal representative, as the case may be, shall be ascertained in the following manner namely:<br />
(i) In the case of society with unlimited liability, it shall be the actual amount received by the society in respect of such share or interest;<br />
(ii) In the case of a society with limited liability, it shall be the amount arrived at by a valuation based on the financial position of the society as shown in the last audited balance sheet preceding the cessation of membership:<br />
Provided that the amount so ascertained shall not exceed the actual amount received by the society in respect of such share or interest.<br />
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(2) Where a person is allotted a share by a society, the payment required to be made therefor shall not exceed the face value of the share notwithstanding anything contained in the bye-laws of the society.<br />
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(3) When a share is transferred by a member to another member duly admitted as a member of a society, the transferee shall not be required to pay anything in excess of the value of the share determined in accordance with sub-rule (1).<br />
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Rule 24 lays down the procedure to transfer shares. Accordingly:<br />
(1) No transfer of shares shall be effective unless, -<br />
(a) It is made in accordance with the provisions of the bye-laws;<br />
(b) A clear fifteen days’ notice in writing is given to the society indicating therein the name of the proposed transferee, his consent his application for membership, where necessary and the value proposed to be paid by the transferee;<br />
(c) All liabilities of the transferor due to the society are discharged; and<br />
(d) The transfer is registered in the books of the society<br />
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(2) Any changes in favour of the society on the share so transferred will continue unless discharged otherwise.<br />
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<b><i>To avail a legal service, an expert opinion or an appointment with Solicitor and Property Law Expert Gajanan Khergamker, call 8080441593</i></b></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-1360075062756290082020-01-22T12:32:00.000+05:302020-06-29T12:32:54.869+05:30Society member has every right to inspect books of accounts<div dir="ltr" style="text-align: left;" trbidi="on">
<b><i>By Gajanan Khergamker</i></b><br />
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Every member of a cooperative housing society shall be entitled to inspect at no cost too, at the cooperative housing society’s office during office hours, or any time fixed for the purpose by the society, a copy of the Act, the rules and the bye-laws, the last audited annual balance sheet, the profit and loss account, a list of the members of the committee, a register of members, the minutes of general meeting, minutes of committee meetings and those portion of the books and records in which his transaction with the society have been recorded.<br />
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Moreover, a cooperative housing society is bound to furnish to a member, in request in writing and on payment of such fees as may be prescribed thereof, a copy of any of the documents mentioned in the foregoing sub-section within one month from the date of payment of such fees.<br />
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In <i>Saijad v. Ismail Abad Co-operative Housing Society 1966</i>, it was held that when an application is made under this section for inspection of certain documents, the housing society is bound to give inspection of certain other documents besides these which are mentioned in this Section, but those documents which are referred to the case or claim made or disputed.<br />
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In <i>Janata Sahakari Bank v. Dhansukhalal </i>1978, it was held that this section conflicts with the provisions of Section 34 of the Banking Regulation Act, 1949 under which a co-operative bank can refuse to produce documents of confidential nature. Therefore, it has been held that the Registrar cannot order a bank to give inspection of such documents which are confidential.<br />
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<b><i>To avail a legal service, an expert opinion or an appointment with Solicitor and Property Law Expert Gajanan Khergamker, call 8080441593</i></b></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-35324245929599978952020-01-20T12:31:00.000+05:302020-06-29T12:31:58.013+05:30‘Interested’ non-member can move court for intervention<div dir="ltr" style="text-align: left;" trbidi="on">
<b><i>By Gajanan Khergamker</i></b><br />
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For a dispute in the Cooperative Court being of a civil nature, any aggrieved party though not a party to the suit may apply for intervention. If any party feels that both the parties to the dispute have either in collusion or in any other way affected his rights, then he can move to cooperative court independently to allow his intervention. There is no need that such intervener should be a member of the society in the dispute application.<br />
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Under section 94 (3) sub-section (a) a party feels that he is an interested party through a member or directly he may apply to the Cooperative Court to allow his intervention in the dispute application. He may apply for intervention either in the capacity of Disputant or Opponents nomenclature is to be decided on the basis of his pleading whether he should be a disputant or opponent is the matter of finding of the Court.<br />
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Sometimes in collusion the disputes are filed in the Cooperative Court to seek certain orders. Even though initially it is not seen by the Court that there is no collusion or conspiracy but finally there is a likelihood of affecting third party by the said judgement and orders. In case any party comes to conclusion by the fact of the dispute, he may intervene in the dispute by placing such application.<br />
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The application is to be decided by the Court after hearing other parties of the dispute. If the intervener’s application is allowed then he has every right to put forthwith his claim as a disputant or can defend as opponent in the same manner. The Court may permit the claim or defence as is deemed fit. The judgement if any is definitely binding on the intervener depending upon the nature of the fact and circumstances.<br />
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The parties can also file a good number of interlocutory applications under section 95 (4) of MCS Act 1960 and other sections too. Interlocutory applications are a must in every proceeding before the Cooperative Court in changing circumstances of the matter. Interlocutory applications are a must to achieve the final object of the law. Interlocutory applications are as integral part of disputes before the Cooperative Court.<br />
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From time to time of institution of dispute, till its disposal, several interlocutory applications need to be filed to meet the aims of justice. Sometimes interlocutory applications naturally delay the final disposal of the matter but at the same time we cannot ignore that they are very essential for proper and judicious disposal of the disputes before the Cooperative Court.<br />
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It is also pertinent to note here, that every interlocutory application including intervention application should be accompanied by an affidavit of applicant / petitioner. To be filed in the Cooperative Court must be attested by a competent advocate to this effect. Like other judicial courts, the Cooperative Courts are not provided with competent and trained staff to scrutinise the affidavit. In Mumbai alone the post of Registrar of Cooperative Appellate Court is established having power to administer the oath and sign the affidavit of the party concerned.<br />
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Every interlocutory application must be supported by an affidavit of the party concerned. Disputants or opponents can file an interlocutory application. Every affidavit of deponent should consist of brief facts of the dispute and the circumstances of filing such application.<br />
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It would be suggested not to club more than one relief in the petition but at times, for example in a dispute for intervention party may pray orders and appointment of Court Commissioner or Receiver. There is no necessity to file affidavit of all the parties concerned placing interlocutory application. Any of them can swear an affidavit on behalf of other applicants.<br />
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<i style="font-weight: 700;">To avail a legal service, an expert opinion or an appointment with Solicitor and Property Law Expert Gajanan Khergamker, call 8080441593</i></div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-82615962831639979672020-01-01T12:38:00.000+05:302020-06-29T12:39:05.367+05:30Exercise Caution Before Selling Your Home<div dir="ltr" style="text-align: left;" trbidi="on">
<b><i>By Gajanan Khergamker</i></b><br />
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If you’re looking to sell your home and are strapped for cash, it’s always a better idea to sell your existing home before committing on a new one, especially now when the property market is at a lull.<br />
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The strict lending standards adopted by Housing Finance Companies (HFCs) in recent times can make it harder for you to find immediate potential buyers.<br />
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Moreover, paying off a home loan for two properties at a time could cause unnecessary strain.<br />
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Listed below are a few more things you should be aware of if you’re looking to sell your home:<br />
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- Hiring a good real estate broker is one of the most important steps to getting a good price for your home. Ask your friends and acquaintances for recommendations and preferably get an agent who knows your neighbourhood well.<br />
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- As a seller, you should be aware of the accurate real market value of your home especially if you’re looking to buy a new one. This helps because it also indicates a budget for your new home. You’ll know you’ve made a mistake within the first two weeks after putting up the property on the market. Once you’ve realised that you’ve overpriced it, adjust it accordingly.<br />
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- Make a flexible strategy plan. Think about your initial asking price, how long can you stick to it before reduction? How low a price will you accept? Having a plan will help you react quickly and help you sell your home faster.<br />
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- Before showing a home to prospective buyers get rid of the clutter and to make it appear open and fresh.<br />
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- Don’t look too eager to sell. If prospective buyers think that you are desperate to sell, they will try their best to make you accept a bargain. If you are in a hurry to sell, offer an incentive to your broker such as a higher commission for a speedy sale.<br />
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- In these tough times, buyers always have more negotiating power but if you think the price being offered is too low than you expected, either make a counter offer, wait until the next buyer or till the market value increases.<br />
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- Don’t jump onto any deal just because you’re desperate for a sale. If you’re running out of time and are unable to sell it for whatever reasons, consider renting it out. The incoming rent will help you stay abridge your existing home loan. Notify the renters that the home will always be accessible for showings to potential buyers.</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-67022112773939004802019-12-31T12:59:00.000+05:302020-06-29T12:59:49.463+05:30Pay Heed To Details In Development Agreement<div dir="ltr" style="text-align: left;" trbidi="on">
<i><b>By Gajanan Khergamker</b></i><br />
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A cooperative housing society should enter into an agreement with the developer, as finalised, but only in accordance with terms and conditions as approved by General Body Meeting. Also, the society has to act under the guidance of the architect/project management consultant and consider the points suggested by the architect/ project management consultant as appointed by the society. Here go a few issues that any party entering into a redevelopment agreement with a developer should ensure are covered:<br />
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• For one, it’s imperative that the period for completing the redevelopment project of the society does not exceed two years. In exceptional cases, it should not exceed three years.<br />
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• The carpet area to be allotted to members must be clearly mentioned in the agreement.<br />
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• The developer should give a bank guarantee for an amount equal to a fifth - 20 per cent - of the project cost.<br />
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• More importantly, during the period of redevelopment, the developer will make available said members alternative accommodation in the same area as far as possible; arrange to pay monthly rent and deposit as acceptable to members or make available transit camp accommodation.<br />
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• The said agreement will be registered under the Registration Act, 1908.<br />
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• Once the redeveloped project is complete, new members will need prior approval of the society’s General Body Meeting before admission.<br />
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• It should be clearly stated that only after all legal approvals are received for the redevelopment of the building will members vacate their premises.<br />
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• Rights of those in possession of the flats will remain unaffected.<br />
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• Should any dispute arise during the process of redevelopment, provision should be made in the agreement to resolve the same.<br />
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• Care should be taken to ensure that no committee member of office-bearer of the society is the developer or related to the developer. This should ensure that there is no conflict of interest.<br />
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• Building plans sanctioned by the Municipal Corporation/ competent authority should be placed before the General Body Meeting for information.<br />
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If any member wants copies of the approved documents, he should submit an application for the same to the society and it will be binding on the committee to furnish the information by charging the necessary fee.<br />
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• After receipt of Occupation Certificate, flats in the redeveloped building should be allotted as per present conditions floor-wise. If necessary to allot flats by drawing lots, on completion of construction the developer should make arrangements for drawing lots. At that time, flats should be allotted in the presence of Registrar’s representative and this process should be videotaped too.</div>
Unknownnoreply@blogger.com0tag:blogger.com,1999:blog-2035103318502106433.post-62888881923720322902019-11-19T13:01:00.000+05:302020-06-29T13:01:23.541+05:30Read The Fine-Print Carefully Before Signing Up<div dir="ltr" style="text-align: left;" trbidi="on">
<b><i>By Gajanan Khergamker</i></b><br />
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If you take the claims made by a developer in a brochure or on a website seriously, you could be in for some serious trouble. Every developer makes claims of providing amenities that are world class and simply the best in the business. The onus of checking out his credentials rests upon you.As an astute buyer, you need to double check assurances of swimming pools, shopping options, gymnasiums, malls in the vicinity and the works as promised in brochures and on websites. It makes sense to take tall claims of amenities with a pinch of salt and be ready for contingencies wherein there’s scope of redress for non-performance.<br />
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You may not have an issue with renowned developers have a reputation to protect and almost always deliver whatever has been assured during the stage of construction with the exception of a few ‘luxuries’ that are ‘adjusted’ against freshly provided others with the buyers’ knowledge and consent. There are, however, several occasions when a few shady developers fail to deliver some very basic amenities to buyers despite promising the same.<br />
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A buyer must take his time to ensure that the promises made, before a deal, are delivered. Or else, the issues that arise later while attempting to get an errant developer to cough up damages or deliver as assured can be a huge cause of worry.<br />
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The one issue that affects most home buyers is water. On completion of the building, developers are supposed to apply for an occupancy certificate only after which can flat-owners obtain water from civic authorities. Just in case the occupation certificate is not provided, home-owners are left with little option but to pay up a fortune for water fetched through tankers or through the BMC at market prices.<br />
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Within six months of completion of a minimum of 12 flats, a builder has to form a society by law. The developer is also bound by the Maharashtra Ownership of Flats Act to convey the property in the name of the society but unscrupulous builders conveniently delay the process, leaving bonafide buyers in a lurch.<br />
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There is the option of either approaching a co-operative court, civil court or criminal court in case of any transgression by the builder. If a building hasn’t been registered as a co-operative society, he could approach a criminal court and file a suit under Section 420 of the Indian Penal Code for cheating against the builder.<br />
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Sadly, since more often than not, legal procedures are lengthy and can cost a fortune; most home-owners prefer to avoid moving court and instead opt for a settlement. A buyer needs to ensure they study the fine print in sale deeds and documents instead of mulling over trivia to ensure he doesn’t land in a mess. Often, most ‘luxury’ amenities offered by developers come with riders that are very smartly concealed by the use of legal jargon. Also, most home-owners don’t stand a chance of pulling up shady builders who’re adept at the business and leave little that can hold any ground against them in a court of law.</div>
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