Delay In Forming Apartment Associations Weaken Buyers' Rights; Occupying Flats Without OC Compounds Risks: Retd Justice Ashok Hinchigeri
Observing that delay in the formation of apartment owners' association takes away from the purchasers their bargaining strength against builders and civic authorities, former Karnataka High Court Judge Dr. Justice Ashok B. Hinchigeri has called for greater legal awareness among apartment dwellers while flagging critical issues ranging from taking possession without Occupancy Certificate to...
Observing that delay in the formation of apartment owners' association takes away from the purchasers their bargaining strength against builders and civic authorities, former Karnataka High Court Judge Dr. Justice Ashok B. Hinchigeri has called for greater legal awareness among apartment dwellers while flagging critical issues ranging from taking possession without Occupancy Certificate to the lack of practical experience among management committee members.
Speaking as the Chief Guest at 'Proprietas' 2.0, a legal awareness event focused on apartment living organised by the NLS Legal Aid Society in association with the Bangalore Apartments Federation (BAF), Justice Hinchigeri, who is also the Karnataka Law Commission Chairman, flagged four major issues that need elaborate deliberation for the benefit of apartment purchasers and residents:
Firstly, about the consequences of delay in formation of apartment owners association, Justice Hinchigeri said as follows:
"…More often than not, developers delay the formation and creation of apartment owners' association. Such a delay would invariably produce a consequence where apartment dwellers have no bargaining strength with the developer or civic authorities…”
He pointed out that developers often advertise premium amenities like hot water, swimming pools or other amenities but either fail to deliver or provide substandard facilities.
“…In the absence of apartment owners' association, the aggrieved individuals can only go before RERA or Consumer Forum…. So, the paramount need is to form the apartment association in complexes…”, he said.
Drawing from personal experience, the former judge also made an observation about the functioning of apartment management committees on the ground.
"…Members of management committee, some of them from a very good background, they are senior professionals in their chosen area with good intent but they may not be having the practical experience to run the affairs of the apartment”, he said.
He then suggested: "…So I am wondering whether we could organise a workshop for training the members of such management committee… that is also required in my opinion..”
Delving deeper into the other issues he had flagged, Justice Hinchigeri also deprecated the practice of builders handing over the possession of units without an occupancy certificate:
"…Some developers hand over possession to buyers without obtaining OC[Occupancy Certificate] or CC [Completion Certificate]. If you occupy in absence of OC or CC, your possession would be illegal, exposing you to penalties and potential eviction notices from the municipality or the corporation…”, the former judge told the group of apartment dwellers, developers, and association members gathered before him.
Thirdly, describing the issue as 'very common in Bangalore', he pointed to deviations from the building plan such as converting common places to commercial use, adding extra floors, or constructing additional units.
“…Such deviations would lead to demolition of the structure by municipalities and corporations. Such issues diminish the quality of life of apartment owners in addition to financial burdens on owners and builders…”, the judge opined.
Fourthly, Justice Hinchigeri also raised a question as to whether apartment complexes should have unitary management committees for each tower, or a federal structure with a single committee for all the towers, or a quasi-federal model with committees for each block feeding into a central agency.
Speaking further, Justice Hinchigeri stated that the statute confers upon each apartment owner an 'independent transferable title to a particular unit with an undivided share in the common areas'. However, he noted that common areas are handed over to the association only for the limited purpose of maintaining and managing them for the apartment owners as per the Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 (KOFA).
Addressing what he termed as a 'move to create a duality of ownership', as reported in newspapers, the former judge pointed out the fallacy in conveying the title of common areas to apartment associations:
“…In my objective and humble opinion, it's not legally feasible. The question of conveying title of the undivided common areas and facilities in favour of any cooperative society or welfare association does not arise at all”.
On another note, Justice Hinchigeri emphasised that the transaction of purchasing a flat carries deeper implications over and above the property agreement. He also went on to share his views on apartment dwelling as a form of 'community living'.
“…When we purchase a flat and enter into an agreement, we are not just buying a roof over our head, we are buying a promise- promise of what? Promise of community living, modern amenities, promise of shared security and hassle-free lifestyle…” he said.
He elaborated further: “…Apartment living is a social contract. A promise that a community of strangers will share walls, water, corridors, lifts, in a spirit of mutual respect and legal accountability. The law is just an instrument that keeps this promise enforceable."
Taking into account the changing nature of familial ties and co-living in India, the former judge noted that apartments have become 'inevitable' for nuclear families and senior citizens.
"…. Think of nuclear families or senior citizens who can't live by themselves. If they live in an apartment, immediately they can get the services of an electrician, plumber, security against the entry of outsiders till they get the approval from inmate…I personally feel if these days somebody can live in independent bungalows or houses, it's only where three generations are living together – grandparents, parents and children living together, they can afford it. Otherwise, living in an apartment becomes inevitable”, he explained in detail.
'Proprietas 2.0', hosted by NLS Legal Aid Society, is designed to bridge the knowledge gap for apartment dwellers in Bengaluru as per its organisers. The one-day event featured a series of speakers. MLA N.A. Haris, Chairman of the Bengaluru Development Authority, spoke at length on housing governance.
Rakesh Singh, IAS (Retd.), Chairman of K-RERA, elucidated further on real estate regulations.
Advocate Beena Pillai delivered the keynote address on the legal and the practical intersectionality of Karnataka Apartment Laws.
The event was followed by a live Q&A session on the Karnataka Apartment Owners Act, occupancy certificate and apartment governance.