CLICK FOLLOWING LINK FOR WHATSSAPP GROUP (CHOOSE ANY ONE OF THEM)
NAIGAON EAST • NAIGOAN WEST • VASAI EAST • VASAI WEST • NALAOPARA EAST • NALASOPARA WEST • VIRAR EAST • VIRAR WEST •
NAIGOAN EAST, NAIGOAN WEST
VASAI EAST, VASAI WEST
NALASOPARA EAST, NALASOPARA WEST
VIRAR EAST, VIRAR WEST
VASAI EAST, VASAI WEST
NALASOPARA EAST, NALASOPARA WEST
VIRAR EAST, VIRAR WEST
Whatsapp Faq From Madhukarji
QW/M/001/17.12.2017
Respected members, hav one question like if some of society members hold street dogs(dirty dogs) at thier door with mat and bowls of foods to serve them and also encourgae them to sit / sleep whole night and even in day, what action society can take as it disturbe other members. I know they are doing illegal work, but how to handle legaly,as i have objected many times.
Answer by Madhukarji
Santosh ji,
handling of pets or stray dogs is decided by animal welfare board and their rules do not leave any room for police complaint or legal action as feeding strays in housing society compound is very much permitted. I am enclosing AWBI circular for you. Only way out is to convince the member to feed the strays outside the premises so that children playing in society are safe.I am attaching the circular for your reference.
**********************************************************************************
QW/M/002/20.12.2017
Hello Everyone, I have one doubt about attending Annual General Meeting, can flat nominee attend the AGM, and express his/her opinion ? Bcoz in our society, committee allows only society flat owners (shareholders) only to attend the AGM.
Please send any law regarding this, so i can fight if such rule is there.
Also our committee charge rs. 200 as fine for those do not attend the AGM, is this right as per law?
Answer by Madhukarji
Deenesh ji,
Housing society is formed by members for members and works on principle of mutuality so there is no scope for anybody else attending society meetings except the member whose name appears first on the share certificate of the society. Bye laws 103 makes this point crystal clear. and bye law 104 specifies that only associate member can attend meeting in place of the member. Associate membership has some conditions attached to it and it is a separate subject all together.
As far as society charging Rs 200 to members who don't attend the meeting is concerned, bye law 66a(xvi) authorises the general body to collect any other charge as may be decided in the meeting so there is nothing illegal about this levy as it is decided in the interest of the society by the general body. This is one of the many points discussed in the general body meeting and that is why you should attend the meeting.
The managing committee members work voluntarily for the society, they also are busy like you and any other member. When they call the meeting to take some important decisions and find that members are not attending the meeting can you imagine their frustration?. You imagine yourself in secretary's shoes and you will know their feelings. Instead of fighting with them why don't you join them ? At least you will know their working and problems.
**********************************************************************************
QW/M/003/20.12.2017
If at AGM it will be passed ,so committee can charge the penalty for not attending AGM
Answer by Madhukarji
yes that is my opinion. There is no bye law for or against such a penalty but in the interest of the society the mc can formulate some specific bye laws within the framework of MCs act 1960 and rules 1961.
**********************************************************************************
QW/M/004/20.12.2017
Dear sir if 1/3 majority not attending the AGM that time committee can reschedule the meeting after 30 minute and AGM can be held and do the proceedings
Answer by Madhukarji
Correct. Does this mean society should work with only few members? What happens when you want to go for redevelopment ? Ultimately some decisions are society specific. I have also seen societies where attendance is 80 to 100% for almost all meetings. They discuss problems in a friendly way and enjoy it like a get together. Even they organise tea snacks etc which adds icing on the cake. It is the mindset that is important.
**********************************************************************************
QW/M/005/20.12.2017
Can any one suggest me.
In Virar area lots of builder are going for development and they ask a money from the tenant for redevelopment. Is there any law that builder can ask a money from tenant for the same
Answer by Madhukarji
It is other way round. Builder has to pay the tenants. Don't these societies have their consultants for guidance?
**********************************************************************************
QW/M/006/18.12.2017
Urgent question.
One of the members outstanding maintenance is 28000 and we have sent 1st 101 notice to him. Today we called him for payment of amount. But one of the other member who's having 118000 as outstanding came to interfere and both left the meeting.
He is encouraging not to pay the outstanding. Whats action can the society take against both of them. And what action should be taken on members who create problems in normal functions of the society.
Answer by Madhukarji
Dear members,
I am enclosing a document which gives detailed information about 4recovery under section 101.Go through it and if you still have problems then as Deepak ji has suggested contact the federation.
**********************************************************************************
QW/M/007/16.12.2017
Which are the Forms required to be submitted to the Society for getting the shares of a deceased member (single name) to the name of nominee (Son).
Please share the information. Thanks.
Answer by Madhukarji
Nair ji,
Procedure to follow for Transfer of flat when nomination is made by the flat owner
(1) The form of application for membership in Appendix-15, by the nominee/ nominees [ under Bye-law No. 34] with Rs100 entrance fee.
(2) If nominee has no independent income source, an undertaking on Rs100 Non-Judicial Stamp Paper, in Appendix-5 will be furnished by a person who is a close relative and an earning member and who is ready to discharge the liabilities of the prospective nominee-member to the Society. [ under Bye-law No.19(A) (v)]
(3) Undertaking on Rs100 Non-Judicial Stamp Paper to be submitted by the prospective nominee-member, in Appendix-4. [ under Bye-law No.17(b) and 19(A)(iv) ]
(4) Copy of the Nomination Form in Appendix-14, of the deceased member. [ under Bye-law no.34 ]
(5) Original or Attested Xerox copy of the Death Certificate of the deceased member. [ under Bye-law no.34 ]
(6) Xerox copy of the Share Certificate of the deceased member, with undertaking on the Xerox copy, that original share certificate will be produced by the member, as and when asked by the Secretary for making the name change by the Society.
(7) If the nominee already possesses another flat in the same society, then to hold an additional flat, an application in Appendix-28, has to be made by the nominee-member. [ under Bye-law No. 62 ]
(8) Nomination to be made by the nominee-member, in Appendix-14, in triplicate. [ under Bye-law No.32 ]
Above procedure is enough for society to transfer the flat in Son's name.
However this only makes the Son caretaker of the flat and he cannot sell/rent the flat. To get the title ownership of the flat he will have to get succession certificate from a competent court or get registered relinquishment deeds from other family members (his mother, other siblings ) who can stake claim to the flat based on succession laws.
**********************************************************************************
QW/M/008/17.12.2017
Can we put permanent shed on terrace
Is there any vvmc permission and structural audit is mandatory for shed work
Answer by Madhukarji
Nilesh ji,
If you cover terrace or even erect shade for car parking then VVCMC will consider it unauthorized construction, they will consider the covered area as additional FSI and increase property tax proportionately for the period the shed was erected and then demolition it. If you are thinking about rain shade then take permission from VVCMC (it takes lot of time,energy and money). If they allow then the shade will be very low so that terrace cannot be used for functions etc.
**********************************************************************************
QW/M/009/17.12.2017
Q.1
Provision in bylaws for paying to committee members as a honourarium मानधन is a Marathi word
Q.2
Can a state/central or semi government become a MC member or office bearer with honorarium
Answer by Madhukarji
Nilesh ji,
1) Chapter xiii bye law 149 b(ii) states "To pay honorarium to office-bearers of the society not exceeding 15 percent of the net profit to reward them for the sacrifice of their valuable time for the working of the society. However, the office bearer may take such amount of annual limit 15% or Rs.2000/-, whichever is less."
2) As per The Central Civil Services (Conduct) Rules, 1964, rule no 15, government servant (central or state) needs permission from respective higher authorities to become MC member or accept honorarium.
**********************************************************************************
QW/M/010/17.12.2017
Hello sir. Can you please let us know upto what amount can the chairman/secretary take decision to use in the society for any work including gutter cleaning or for any amount even Rs 200.00 do we need To call Managing committee meeting.
Answer By Madhukarji
Vikas ji,
You don't need advance MC approval for every small expense. Even though there is no specific bye law on this subject it is understood that each society will have it's own rule which is ratified by the general body. Small societies should allow petty expenses upto Rupees 700/800 to be spent on problems which need immediate attention. To keep the decision transparent, one of the office bearer along with one or two members should check the problem and take immediate action to spend money within the set limit to resolve the issue. MC can approve these expenses in their next meeting. It should be understood that choked drainage, non functional security lights, leaking water pipes etc need urgent attention.
**********************************************************************************
Q/MB/011/20.12.2017
I would like to ask one question regarding construction of gate in one society which was open as per the plan. Now new committee wants to construct a gate there. All shopkeepers and owners have object to construct the because of loosing business. How to tackle the situation. Can we complaint to the registrar?
Answer by Madhukarji
Santosh ji, You are not going to achieve anything by complaining to DDR or going to the court. This is a matter society members should resolve themselves. If you are erecting the gate for security purpose then may be you can fix sliding gate which can be open during day time and closed by late evening or some other compromise solution.
**********************************************************************************
Q/MB/012/20.12.2017
I don’t think so there is any section for penalty for members who are not attending AGM / SGM, only Society can mark their status as Inactive if they failed to attend single meeting since past 5 years.
But as mentioned by Madhukar Sir, AGM can pass the Resolution for such kind of penalties as per BYE LAW 66a(XVI).
Answer by Madhukarji
Sameer ji and Digesh ji,
As I mentioned earlier there is no bye law which specifies penalty for not attending general body meeting s. But there are certain provisions in the bye laws which leave some scope for a society to formulate rules specific to their society. So depending on the type of members you have you can use 66 a(xvi) to impose a nominal penalty so that the members will attend the meeting. There are societies who use this method, some societies instead of penalty organise snacks etc to encourage members to attend and some societies have enthusiastic members and they don't need penalty or incentive. So make rule suitable to your society. After all it is a question of roof on the head, more members attend the meetings better it is for the society it gives a chance to MC to put forward their proposals and pass them with real majority. One thing is definite when you attend these meetings there is a sense of involvement. So decision is entirely yours.
**********************************************************************************
Q/MB/013/22.12.2017
Dear Sir
I am interested in selling my property (flat) in a society.
I informed my society about the same.
now I got a client for my property (within 2-3 days).
I got a partial payment of my flat cost (around 15% along with he produced pre-saction Letter for home loan from Bank of India). And he (client) is asking Society NOC to submit it to his bank for Home loan approval and followed by the disbursement of it.
My society maintenance dues are cleared till Jan 2018.
When I approached My society MC they asked for various docs like
1) Resignation letter of membership by seller.
2) Copy of chain of agreements.
3) Declaration by seller on Rs. 100/- stamp paper.
4) Indemnity bond by seller on Rs. 500/- stamp paper.
5) Transfer fees of Rs. 25000/- + 500/- + 100/-
6) Transfer Set with Nomination form in triplicate.
7) KYC documents of owner & seller both.
8) Declaration / undertaking by purchaser on Rs. 100/- stamp paper.
9) Draft of NOC of bank / financial institution.
Also the society MC is asking all the documents in original copy and not photocopies. My documents are with my bank (Home loan).
My deal is not yet completed then is it advisable to sign the above mentioned documents ??
Please guide.....me
I think I need only NOC from my society at this stage.
The transfer process I wanna begin after the completion of my deal.
Please show me the way.....
Regards
Prasad S R.
Answer by Madhukarji
Prasad ji,
1) your society will not issue NOC to the buyer as you have taken NOC for your loan and society must have given undertaking not to permit creation of any third party rights on your flat untill loan is fully paid.
2) What you can do is inform your bank that you want to sell your flat and repay the bank loan. get a letter from the bank - usually called as foreclosure statement and/or document custody letter.Bank will give you list of documents in banks possession (for the property) and fore closure statement (how much balance one needs to pay to close the loan). This can be considered as banks NOC.
3) Ask buyer to get provisional NOC letter to be given by the society to the buyer's bank. The NOC format is provisional in which it must be mentioned that "Society will provide NOC after receiving existing loan closer letter from existing bank".
Buyer should submit fore closure statement (how much balance one needs to pay to close the loan), list of documents with seller's Bank, sale agreement which will indicate the value of flat, and provisional NOC to his bank. These documents should be enough for the bank to transfer loan amount due to the seller's bank, and seller's bank should issue loan closure letter.
4) You will now have to talk to your society's office bearers. Inform them that the buyer's bank is disbursing the loan on the basis of documents with the seller's bank. So society doesn't need any more documents. All the copies of chain agreements will be with the society without which they could not have recorded earlier flat sales in their records. Also all original documens about present seller are with his bank because of his bank loan.
5) probabely the mc members don't know what kyc they are talking about.If it is a matter of submitting pan and aadhaar copy, you can do that.
6) All other documents asked are routine forms, declarations, and cheques.
7) If you are still not able to convince the mc members then you can take them to the bank officer who will explain everything to them.( Travelling and lunch on your account)
8) Once the MC members are convinced about the documentation you can register the agreement and pay duty, registration fee.
9) If nothing works then last remedy is complain to DDR.
I am not an expert in financial matters. This information is gathered from my friends in this field. You should always cross check with your CA/Lawyer and decide.
**********************************************************************************
Q/MB/014/03.01.2018
Need some advice in one society matter
one flat is in the name of mother and younger daughter. Now mother wants to remove her name from agreement and want to add her elder daughter's name. she want to do gift deed.
Can u please advise how we should proceed being a secretary? What r the documents we should collect in this regard? is it valid if their brother object to society once gift deed done ?
Answer by Madhukarji
Yogesh ji,
If mother has invested her own hard earned money to buy her share in the flat, then during her lifetime she can gift the flat to anybody she wants and nobody can object. If she received her share of the property from her husband/parents then the children have a right on the property and her son can definitely object to the gift deed. In such transfer cases the MC must take a decision based on the facts presented by the member. Since secretary has a doubt that the member's son may object to the gift deed , he can ask the mother to submit no objection affidavit from her son. Aslo when the transfer goes through ensure that you take indemnity bond from the incoming member .
**********************************************************************************
Q/MB/015/23.12.2017
Hi!
A committee member sold her flat n rented a flat in the same society.
1. can she still remain a committee member?
2. Another member has not attended the mc meeting for 4 months.
3. How can we fill the two vacancy in the MC.
We just had our elections on Apr 17.
Does she hv to give her resignation.
Answer by Madhukarji
Elizabeth ji,
The lady in question should have resigned before selling her flat. Since she has not done it , she automatically ceases to be MC member once she has sold the flat. The Secretary should pass a resolution in the monthly meeting and remove her from the committee.
As per bye law no 118 a(ii), any mc member who remains absent from 3 consecutive mc meetings without leave of absence gets disqualified. I suggest check with the member if he has any problem before removing him from the mc.
To fill these vacancies co option is not allowed so you will have to inform election authority to conduct election to elect two new mc members. In the mean time remaining members will manage the work. .
**********************************************************************************
Q/MB/016/23.12.2017
Dear sir,
Can an owner give his flat to their extended family yo stay?
Without L&L agreement and PV copy
Answer by Madhukarji
Nitin ji,
Family Member means: Group of persons which includes Husband, Wife, Father, Mother, Sister, Brother, Son, Daughter, Son-in-Law, Brother-in-Law, Sister-in-Law, Daughter-in-Law, Grandson & Grand-Daughter.
Non-Occupancy Charges CANNOT be levied to the above family-members of the bonafide Member. However, intermittent joint-stay of other family members OR friends, will not attract Non-Occupancy Charges.
**********************************************************************************
Q/MB/017/02.01.2018
Cn any member give his vacant flat to other member of society without any LL agreement for 1-2 months as repairing work is going on in other members flat
*****
Answer by Madhukarji
Nilesh ji,
If you see Legally then the flat cannot be given on L&L without agreement and without paying NOC. On humanitarian ground, in my opinion,yes flat can be given to another member for a short period just to help him and his family.
**********************************************************************************
Q/MB/018/02.01.2018
The Special General Body Meeting had to be postponed twice for want of quorum. Even half the members were not present. What can be done to conduct the meeting
Answer by Madhukarji
Girish ji,
You don't have to keep on postponing sgm for want of quorum. The rule for postponing sgm is as under.
Holding Adjourned meeting - If within half an hour after the time appointed for general body meeting of the society there is no quorum, the meeting , if convened upon the requisition of the member shall be dissolved.
In any other case, It shall be adjourned to a later hour on the same day and at the same place, as may have been specified in the notice, calling the general body meeting of the society or to a subsequent date not earlier than 7 days and not later than 30 day and at such adjourned general body meeting, the business on the agenda of the original general body meeting shall be transacted, whether there is requisite quorum or not.
**********************************************************************************
Q/MB/019/02.01.2018
Does for NOC required for loan, Secretary signature compulsory or any two between Chairman / secretary / Treasurer ?
****
Answer by Madhukarj
Mandar ji,
Housing society documents should be signed by secretary and one of the remaining two office bearers. If member needs NOC urgently and secretary is not available then the remaining two office bearers can sign the document.
**********************************************************************************
Q/MB/020/02.01.2018
Which fund we can use for building repairing,painting ??
100℅ repairing fund/surplus funds or collection from all members and collection on sq.ft.basis or equally?
Answer by Madhukarji
Nilesh ji,
It is your general body which decides how to utilise the funds. You can use building repairs fund or keep it for future and ask members to contribute towards building repairs or you can use part of accumulated fund and raise balance by asking members to contribute. If expenditure is properly accounted for then there is no problem.
**********************************************************************************
Q/MB/021/02.01.2018
Hi all
If we send 101 notice on 1 dec and the members does not accept the notice by registered post and notice comes back to the society office on 7th dec. Then should be immediately send the second notice of 101 or should have a gap of specific days in between? Gap of how many days?
Answer by Madhukarji
Dear Member,
I am enclosing a write up on 101 recovery procedure. Go through and you will get answers to your questions.
**********************************************************************************
Q/MB/021/02.01.2018
Actions to be taken against defaulters
-- Our society is still facing a lot of problems because few members are so adamant as to not to pay their dues for years the total dues of the defaulter members are over 4.5 lacs and this is causing a lot of distress to other members of the society..we are applying an interest of 21% per.annum on total arrears and still they don't bother to pay as though they never want to pay their dues.
Can we take these actions
-- We are taking tanker water from a private water tanker service as we do not have BMC water as of yet and those tanker bills have to be paid every month and because of these defaulters their bills are delayed and the quality of water deteriorates can we stop the water supply to those flats with a 12 Day notice? I read somewhere that since we are using tanker water and we have to pay their bills monthly which is over 20,000/- a month..if we stop water to those flats our monthly cost will go down.
-- One member has a tenant in the flat who's Rental agreement has expired in October 2017, and they have not yet submitted the rental agreement copy to the society and no NOC has been taken can we take any action against this flat member who is not paying dues and over and above keeping tenant in the flat who is enjoying all the services? This member also happens to be an committee member who does not attend any meetings.
-- We had collected repair funds and many have paid that, but these handful defaulters have not paid and we are due to start our repairing but the ongoing expenses are becoming huge because these members are not paying, and other members who have paid are asking us when will we be starting the repairs so it is just an havoc here in the society.
I being the secretary am fed up and frustrated with all these issues and even after my repeated requests these inhuman members don't co-operate so we want to take strict action against these please experts advice as to what to do, please reply this is URGENT.
Thank You.
Answer by Madhukarji
Hefin ji, I can understand your frustration but many societies are facing similar problems. Recovery process is not going to be easy but that is the way it is.
You have 3 problems
1) You as secretary and the MC members have organised water supply to members but some members are not paying for this service.
2) Society's major repair work is stalled as these defaulters owe huge amount to the society.
3) one defaulter member who is also a committee member has given his flat on rent without informing the society and without submitting any documents.He also does not attend committee meetings.
In my opinion you can take following steps.
1) Since the MC is buying water for members, I don't think you can cut off water supply to some members.
2) Call SGM and inform members that repairing work cannot be started as these few members are not paying any money and if anything happens these defaulters will be responsible. Let this be recorded in the minutes. This way not only secretary but all members will be after the defaulters to pay the money.
3) any MC member who defaults on payment or does not attend 3 consecutive meetings without leave of absence gets automatically disqualified to be MC member. So you can pass a resolution to that effect in monthly meeting and then get general body approval by 3/4th of members present. Send letter to DDR office explaining this and request for election to elect a new MC member.
Through a notice inform the member that if within 15 days he does not submit all documents about L&L , society will complain to police about strangers staying in the society without any permission. Society will also complain to sub registrar and income tax authority about illegally renting his house.
Also send notice to all defaulters to pay outstanding within one month otherwise society will start recovery under act 101. If they pay it is fine otherwise take a lawyers help to start 101 recovery process by issuing the 1st notice as per the act.
On 22nd December on this group while answering another member's question, I have given procedure to recover outstanding amount under section 101 , you may please go through it. Remember you need patience and lawyer's help to recover the amount.
**********************************************************************************
Q/MB/022/02.01.2018
Dear Mr Viswanathan, we're in process of preparing new share certificate. In the old share certificate should we print " new share certificate issued in lieu of old share certificate no. Nos - to - which now stands cancelled / invalid " kindly suggest if fine or require changes.
Also inform if all transfers during the course of years have to be mentioned or the last transfer effected. Await your reply asap. Thanks Ronald Pais rose nagar naigaon (w)
Answer by Madhukarji
Ronald ji,
Format of share certificate is still the same as per appendix 1. So don't print anything additional,you can endorse whatever you want on the blank space at the top of the certificate and on the back of the counter foil and let the secretary and chairman sign it. You can even use a rubber stamp for endorsement signed by secretary and chairman.
You need to make all the entries at the back side of the share certificate right from the 1st transfer. You are going to take back the old original certificate and against it issue the new one.
Don't forget to make a detailed entry in the minutes of mc meeting just before issuing the new certificate.
Attached is appendix 1.
**********************************************************************************
Q/MB/023/02.01.2018
.
Dear Sir,
I have an query for Flat resale in case of First member death.
Case: Third person has claimed for the flat which is owned by Husband-wife jointly. Husband has expired few months back. Now wife wants to sale the flat but third person is claiming that he has given money to deceased member against this flat by cash against which deceased member given him same amount of cheque in case of cancellation. After death of the first member third person has deposited cheque but it got dishonoured. Now third person has complained in society not to give NOC for resale & sent notice through advocate. While investigation we came to know that there is no agreement or MOU available of this transaction. Also wife(2nd owner) is not aware & accepting this transaction. What shall society do in this case?
Answer by Madhukarji
Nishant ji,
I presume there is no will and even if there is nomination and the blood relatives have given their no objection, since there is 3rd party claim society can safely ask the incoming member to get succession certificate. This way the society will not be involved in legal hassles and the third party will have to go to the court to stake his claim. The honourable court will either issue succession certificate or give order on how to solve the dispute. In the mean time nominee will take care of the flat and society will take action as and when the honourable court delivers the judgement.
**********************************************************************************
Q/MB/024/02.01.2018
Your reply regarding section 149 b {ii }says to pay 15 % or Rs2000 whichever less.👆
But in the bye laws it is not mentioned anything regarding Rs2000. 👆
Answer by Madhukarji
Glen ji,
It is very much there. The bye law reads as follows.
(ii) To pay honorarium to office-bearers of the society not exceeding 15 percent of the net profit to reward them for the sacrifice of their valuable time for the working of the society. However, the office bearer may take such amount of annual limit 15% or Rs. 2000/-, whichever is less.
Figure Rs 2000 was added in one of the amendments. Housing societies are non profit making entities so the figure was added specifically for housing societies. Even in balance sheet the profit and loss account is replaced by income and expenditure account as housing societies have no profits.
**********************************************************************************
Q/MB/025/02.01.2018
Sir,
I need your suggestion in account opening of HSG society. While opening HSG Soc. account do we need to keep any deposits for funds like Sinking & Repair funds as per by law. If yes, kindly let me know the minimum deposit Amt. To be deposited while opening such account
Answer by Madhukarji
Nitesh ji,
You need to open one account with district co operative bank for sinking fund fds and another account in a co operative bank nearest to your society. For opening the account deposit minimum amount as per the individual bank's rules. Deposit sinking fund at regular intervals in long term fd. Use the bank nearest to you for day to day operation and other fds.
**********************************************************************************
Q/MB/026/02.01.2018
Hi all
If we send 101 notice on 1 dec and the members does not accept the notice by registered post and notice comes back to the society office on 7th dec. Then should be immediately send the second notice of 101 or should have a gap of specific days in between? Gap of how many days?
Answer by Madhukarji
Dear Member,
I am enclosing a write up on 101 recovery procedure. Go through and you will get answers to your questions.
**********************************************************************************
Q/MB/027/02.01.2018
Madhukar JI,is live & license agreement to be compulsorily registered as per Co-op bye laws & maharastra rent control act, even if the agreement period is less thn 1 yr or for 11 months ? Also if the rent amt is 5000 rs ?
Also wht action can be initiated against society member in case tenant is kept by him by paying subletting charges but refusing to give registered agreement?
Answer by Madhukarji
Ashutosh ji,
A signature is a form of expressing one’s identity and also it is a representation of one’s consent, approval, or acknowledgment of facts. However, the same signature will not be enough to present documents as admissible evidence in court. It is this obstacle that makes it imperative to register a Leave and License Agreement at a Registrar office.
What are the consequences of not registering a Leave and License Agreement?
Section 55 of the Maharashtra Rent Control Act, 1999, mandates the registration of a Tenancy or Leave and License Agreement. Failing to adhere the same can result in imprisonment up to three months and a penalty amounting to Rs. 5000.
Apart from what the law says, in my opinion it is advisable to register every L&L agreement so that if the tenant creates any problem you can join hands with the society to evict him/her .
Society cannot do much if a member gives his/her flat on rent without submitting the registered agreement, but you should write to the member asking him/her to submit the registered document within 10 days otherwise the managing committee will be compelled to inform police about the the unauthorised person living in the society, will also inform sub registrar and income tax department about the unregistered deal. This warning might work. If not then lodge complaint with the police station about unauthorised family living in the society and it is a security threat. Police may or may not take any action. You can also drag the member to court but you have to think of time and money to be spent there. Income tax and sub registrar is mentioned only to pressurise the member to fall in line. If the member is thick skinned he/she still maynot submit the documents but you have evidence that you have tried every thing humanly possible.
**********************************************************************************
Q/MB/028/23.12.2017
Hi,
Request to share information on below query.
What should be the procedure society should follow if a member wants to let out their flat?
Answer by Madhukarji
Rahul ji,
Inform your society, atleast one week in advance, about your intention to give your flat on L&L. Give reason why you want to do this (give any reason like you want to stay near work place/want to stay with parents etc)
Through your agent Register your agreement,pay stamp duty, apply for police verification.
Once you get above agreement and police verification done, submit the copies along with form 11 ( to be filled by tenant) and form 27 (to be filled by you. It is an intimation about renting your flat)
Every month pay 10% extra as non occupancy charges.
You are done.
**********************************************************************************
Q/MB/029/23.12.2017
I have one question related society.
Suppose say society had declared that more then 2 year can't extend the agreement on lease for the same family.
And owner wants to extend the agreement with the same tenant for more 2 years. Is this make any cross action by society?
Answer by Madhukarji
Prasad ji,
Society has no jurisdiction over who the tenant is and how many years he can stay. As long as the member submits the L&L agreement and police report, pays monthly maintenance and 10% NOC regularly, there is no illegal activity in the flat the society cannot take objection to anything. Same tenant can continue to stay as long as he and the flat owner want.
**********************************************************************************
Q/MB/030/23.12.2017
Sir
We have some problem like one of our committee member is having three children third child was born after 2014
Sir he is the most active member in society and having good knowledge of bye laws and honest
Sir we wish to be in the committee member of the society
Kindly advice can we put this matter in GBM and get pass with the vote of voice or voting
Please advise
Answer by Madhukarji
Meisuriah ji,
If 3rd child is born after September 2001 then the disqualification is automatic, passing a resolution in gbm will not help as this rule is applicable in all organisations except private sector.
If this particular member is active and knowledgeable then what can be done is he should resign membership of MC and then MC can co opt him as expert director. He cannot contest elections to MC and he will not have voting right in MC. I have checked everywhere and noticed that disqualification rules are applicable to elected committee members only. You can use this loophole to get your man on MC but in a different capacity.
**********************************************************************************
Q/MB/031/03.01.2018
Sir, after AGM we received copy of Minutes (after 3 months), in AGM all agree to do Structure Audit and as per society low 8th months time period to fulfil that work which they decided was in AGM, sir how we come to know the work process and 2) question is 8th months time period is time of start work process time or complete that work process time.3)Sir can I get any written rules for this AGM Decision process time,
Answer by Madhukarji
Sweta ji,
Structural auditor and repair is briefly covered in bye law 75.
Societies aged between 15 and 30 years should carry out structural audit once in 5 years and those above 30 years should carry it out once in 3 years.
Most of the societies carry out structural audit only after they receive legal notice from municipal corporation. To put it in simple language , within one month of receiving the notice, society must carry out structural audit through empaneled structural engineer and also submit the report to the municipal corporation.
The audit report should also be tabled and discussed in general body meeting. Since structural audit and repair is made mandatory by law, the general body has no authority whatsoever to refuse to carry out the repairs.
IF the building owner /society does not complete the repairs /restorations, as per the directions in the Structural Audit Report within 6 month of submission of Audit Report, THEN they are also liable to be punished and the managing committed can be criminally prosecuted.
So the society has 7 months to complete structural audit and repairs and submit completion report to the concerned authorities. I do not have the act under which VVCMC issues notice for structural audit but if your society has received the notice, it will spell out the act and the punishment.
**********************************************************************************
Q/MB/031/10.01.2018
Gud Morng Madhukarji.
A friend of mine had bought a flat on resale when the society wasn't formed. The builder asked him & the seller for 1 lakh each for transfer to which they refused.
He states that presently the society is formed and an ad hoc committee has been formed and is administering the affairs but the handover from builder hasn't taken place.
He submitted the relevant transfer documents for membership but the Chairman says he cannot be made a member till the builder handover.
My query is, If the society is already formed, why can't the managing committee endorse his membership & ratify at the AGM.
Yr advice shall b appreciated.
Answer by Madhukarji
Vasant ji,
Your friend has done the right thing by refusing to pay transfer fee to the builder. Your friend should have written to the builder to incorporate his name in the original flat owners list. In the absence of above letter and refusal to pay any money to the builder, he most probably will show the seller's name in the list of flat owners.
Your friend need not worry because of this delay. His ownership is secured because
1. Purchase of Flat, from Builder is under the parameters of "Maharashtra Ownership Flat Act" and under the "Transfer of Property Act" and under the "Stamp Act" and under the "Registration Act".
2. When a agreement is registered AFTER compliance of the above Acts, then the "Title-Ownership", by "legal default", passes in the name of the Flat Purchaser, without any further reference to the Builder or the Society. Hence "NOC" of the Builder /Society is "NOT" required. 3. WHEN a Ownership-Flat, is sold (re-sale), then the agreement between the Old-Flat-Owner and the New Re-Flat-Purchaser, is done under the continuing parameters of the "Transfer of Property Act" and under the "Stamp Act" and under the "Registration Act".
4. Once the Flat Sale Agreement, is "duly" Executed & Registered (using point no. 3, above), the "Title-Ownership" of the Flat, by "legal default", automatically & irrevocably passes on to the New Flat-Purchaser.
The society is right in saying that they need builder handover before taking any action. Main thing the society wants is the list of flat owners as per the builder, Because if seller's name appears as flat owner then society will demand transfer premium and all relevant documents for transfer of shares.
**********************************************************************************
Q/MB/032/10.01.2018
Respected Sir
One of the shopkeepers is requested for resign from society membership
Please advise that
1) can any member request for resign from society membership
2) regarding recovery of maintenance like
Sinking funds, repair funds etc or not
3) Society rights
Answer by Madhukarji
Meisuriah ji,
What you are talking about is expulsion of housing society member. Many people may not be aware of this but it is an extreme step that can be taken against member who is not following the housing society rules and such member can be expelled from the society. Following are full details. Expulsion of a Member in Co-Operative Housing Society.
Expulsion of a Member in a Co-operative Housing Society is an extreme measure and most Societies consider it their last resort. When everything else fails to set things right, expulsion of the concerned Member is considered the only way out.
If extreme need arises for expulsion of a Member, the Law and Procedure be strictly followed as laid down in Section 35 of Maharashtra Co-operative Societies Act 1960, Rules 28, 29 of the Maharashtra Co-operative Societies Rule 1961 read with Bye-laws No.51 to 56 of Model Bye-laws.
A Housing Society can use this to their advantage by threatening members to pay up their dues. A provisional managing committee too has these powers.
Here is what the Society Bye – Laws say about the expulsion of a member from the society. Grounds of Expulsion of a Member:-
A Member may be expelled from the Membership of the Society, if such Member:
* The acts of the Member are detrimental to the interest or proper working of the Society
* Has persistently failed to pay the charges, dues to the Society
* Has willfully deceived the Society by giving false information,
* Has used his flat for immoral purposes or misused it for illegal purposes habitually,
* Has been in habit of committing breaches of any of the provisions of the Bye-Laws of the Society, which, in the opinion of the Committee are of serious nature,
* Has furnished false information or omitted to furnish the material information to the Registering Authority at the time of Registration of the Society.
A Society may, by Resolution passed [by a majority of not less than three-fourths] of the Members entitled to vote who are present at a General Body Meeting held for the purpose, expel a Member for acts ‘which are detrimental to the interest or proper working of the Society’. No Resolution shall be valid, unless the Member concerned is given an opportunity of representing his case to the General Body and no Resolution shall be effective unless it is approved by the Registrar.
Effect of Expulsion on Membership of the Society:-
The Member, duly expelled from Membership of the Society, shall cease to be the Member of the Society, with effect from the date on which the Resolution of expulsion from the Membership of the Society is approved by the Registrar of Co-op. Societies.
Handing Over of Flat:
The Member who has been duly expelled from the Membership of the Society, shall not be entitled to continue in occupation of his flat and he shall arrange to hand over peaceful and vacant possession of his flat to the Secretary of the Society within such period as the Managing Committee may allow. On his failure to do so, he shall be liable to be evicted from his flat.
Readmission to Membership:-
No Member of the Society, who has been expelled from the membership, shall be eligible for readmission to membership in the Society, until expiry of the period of one year from the date of his expulsion, provided that on the recommendation of the General Body of the Society, the expelled Member may be readmitted to its membership, as a special case before the expiry of the period of one year with the prior permission of the Registrar of Co-operative Societies.
Considering that the basic duty of a Cooperative Housing Society Member is to safeguard the interests of the Society and any Member whose actions are detrimental to the interests of the Society can be expelled.
The process of expulsion is a fair one, where both parties i.e. the Managing Committee and the Member likely to be affected, are given an opportunity to express their points of view. If the Managing Committee of a Cooperative Housing Society decides to expel a Member from the membership of the Society, a Resolution needs to be passed to that effect; the topic must be included in the Agenda of the next General Meeting.
The Member who is likely to be affected must be given a minimum one-month notice to remain present at the General Meeting or then make a written submission to Show-Cause why he should not be expelled. Only then can the General Body proceed to consider the Resolution for expulsion of the Member.
This Resolution, however, needs to be supported by not less than 3/4 of the Members entitled to vote and present at the General Meeting and once the Resolution is passed, it needs to be forwarded to the Registering Authority for approval.
While considering the Resolution, the Registrar examines whether the Society has complied with the necessary formalities. And then, whatever the Registrar’s decision – Approval or Refusal – is communicated to the Member and the Cooperative Housing Society.
Expulsion of the Member is the severest form of punishment and it often implies the Member’s way out from the Cooperative Housing Society for good.
**********************************************************************************
Q/MB/033/12.01.2018
Good Morning Sir,
A commite member resigned giving health reason. The co-owner of that flat wants to attend the committee meeting instead. Please advise
Answer by Madhukarji
Girish ji,
Since the co owner is a stake holder in the property, he can submit form 7 and form 10A to the society. Form 7 is application for associate membership and form 10A is authority given by member that in his absence the associate member can attend meetings and participate in elections .
Since the member resigned from committee his place on the managing committee will be filled only by electing a member Through election conducted by SCEA. The associate member can start attending meetings as ordinary member.
**********************************************************************************
Q/MB/034/12.01.2018
Sir please advice
How to take 21% interest ?
Rule passed in last agm that After 50 days member has to pay late payment interest of 21% on maintenance amount . But some of the members denied to pay they are saying it should be yearly means 21% /12. Please suggest .
*****
Answer by Madhukarji
Surve ji,
Yes 21% interest is per annum. If a member does not pay Rs 100 for 60 days then the interest to be charged is 60/365x21=Rs 3.45
Amount looks small but 21% interest rate is very high.
**********************************************************************************
Q/MB/035/12.01.2018
Can tuition/Classes conducted in any society by the owner????
Answer by Madhukarji
Nithya ji,
All activities are not Commercial activities
Activities such as yoga class, tuition class or service of Chartered Accountant, Doctor, lawyers are confused as commercial activities and this ends in raising complaints against apartment owners in association meeting. A commercial activity involves activity relating to purchase and sale of goods. According to source, business such as profession, service and teaching certain arts are permitted by apartment owners and association. The work done by professionals involves element of service and not an activity relating to purchase and sale of goods.
Case Law
•Yoga classes: In the case of Pant Nagar Anandlok CHS Ltd., at Ghatkopar, Mumbai, (Appeal No. 550 of 1985 decided on 24-11-1986 decided by the MSC Appellate Court) it was decided that carrying out activities like conducting yoga classes in a residential flat does not constitute breach of bye-laws of a Co-op Housing Society. The judge said, “The professional activity of teaching certain arts would not in itself become commercial even though some charges are levied in giving some performance.”
So your society should not object to your tution classes but at the same time you should ensure that other members are not put to any inconveniences. Better still, meet MC members and assure them that classes will be conducted in a systematic way without troubling anybody.
**********************************************************************************
Q/MB/036/15.01.2018
Madhukarji,
Need your valuable advice / guidance pertaining to Issue related to Shop.
Can materials / work like :
1. full time masala grinding, preparation and sealing and storing in packets in Shops and adjacent flats
2. Storage of powder of false ceiling in gunny bags
3. Storage of Tiles in shop and adjacent to flats.
Referred Flat has two access one from inside the complex (not being utilised) and other from inside the shops.
Can this activities be allowed legally in a residential complex.
Answer by Madhukarji
Sudhir ji,
If yours is a residential cum commercial society then the shop owners can store the materials mentioned by you , provided they have the necessary license from shops and establishment department.
Joining two units whether shops or flats cannot be carried out without permission from municipal authority. Also storing material in flats will be illegal as it will disturb other members and it is also a security risk.
I am not sure about the section applicable in Vasai Virar but following is the rule in Mumbai.
"Under section 347 (c) of the BMC Act, no alteration can be made to a residential building , plans for which have been approved by the corporation. Once a plan is sanctioned and flats built, any change—be it setting up a partition, demolishing walls, merging flats or using a residential apartment flat as a warehouse—require the permission of the civic body."
You need to talk to the member about this problem. It is fine if he is co operative otherwise society can lodge a complaint with the local municipal authority.
**********************************************************************************
Q/MB/037/15.01.2018
As per Form 5 , to be termed as an Associate member , my name needs to be inserted in the share certificate but since my name is already on the share certificate, do I still have to fill up and submit this Form with a fee of Rs. 100/- ?
Answer by Madhukarji
Clifford ji,
Form to be filled for associate membership is form no 7. If you bought the flat with the original member, your name appears as joint holder in the original sale agreement with the builder, and your name appears 2nd on the share certificate then you are already a member of the society and you are treated as associate member and need not pay Rs 100 with form 7 (I am assuming that you have given a joint declaration in writing to the society that the person whose name stands first in the share certificate shall have the right to vote and all the liabilities will be borne jointly and severally by both as provided in the Act, rules and bye-laws and have paid Rs 100 entrance fee) In the absence of this procedure you will have to pay Rs 100.
If your name was added in the share certificate at a later stage, either through sale deed or gift deed or any other way then you become a co owner and need to pay Rs 100 along with form 7, to become associate member. In any case if in the absence of the original member, the associate member wants to participate in society administration then noc from original member in form 10A also should be submitted to the society .
**********************************************************************************
Q/MB/038/13.01.2018
If I have completed the formalities of an Associate member , and both members attend the meeting , am I allowed to speak in the presence of the 1st member?
Answer by Madhukarji
Donna ji,
If you are associate member then you can attend meetings if the member whose name appears first on the share certificate is not attending the meeting. So only one of you can attend the meeting not both.
**********************************************************************************
Q/MB/039/13.01.2018
.
One of the member has sold his flat and has registered the property. He has sent all papers of registered transfer. Recd. a letter from him and also from the buyer to issue an N OC to Bassein CCBank for a jag loan and also answer a questionnaire. They have not submitted all transfer related forms and original transfer form. How to proceed in this case?
Also pl advise about transfer fees and transfer premium. How much to demand. Kindly advise and oblige. Thanks and regards.
Answer by Madhukarji
Narayanan ji,
The member has submitted these papers to the society so that the incoming member will get noc for bank loan, which in turn means that he will get the pending payment from the buyer's bank. If you still want to be very sure then ask the buyer to get a letter from the bank to the society requesting for noc and answers to questionnaire, also ensure that there are no outstanding dues to be paid to the society by the outgoing member and after that issue the noc.
Incoming member will pay Rs 100+Rs500 as membership fee and transfer fee. The outgoing member will pay maximum Rs 25000 (or amount as decided in general body) as transfer premium.
**********************************************************************************
Q/MB/040/15.01.2018
Hello, Can anyone help on the below query please. ?
Can we pay society security service charges without GST.
Our Contractor is ready to give bill in both way.
If we take bill without
GST is that an issue ?
Please advice.
Thanks in advance 🙏
Answer by Madhukarji
Hiren ji,
Billing cannot be in two formats. Either he will charge or he will not charge GST. It can't be as per what customer wants. Obviously he is doing it illegally.
Security guards provider is chargeable to 18% GST. If he doesn't charge you then the society may have to deduct from his bill and pay the GST under reverse service mechanism, which will be a headache. Consult your CA to reconfirm this and pay gst accordingly.
**********************************************************************************
Q/MB/041/24.01.2018
Sir
Please clarify is this the correct procedure?
There are some societies where even after completing the above said procedures , asking for succession certificate/ Hiership certificate etc though the 1 st owner as per the agreement is still alive and the share certificate stands in his name . Due to the death of joint owner the society has asked to submit release deed , affidavit, indemnity bond , paper notice etc from the bonafied member All the procedure completed as per their instructions.
Now they say that that is not enough to deal with the property.
As I regularly go through your updates /FAQ'S I hope the clarification given by you all are based on the rules laid down by the legal authority for such type of society matters.
Please clarify
Answer by Madhukarji
Vijay ji,
You can study section 30 of MCs act 1960, rule xxiv of MCs rules 1961 and bye laws 31 to 40 to get insight into nomination, transfer and transmission of flat.
In case of joint ownership, both can Separately file their own nomination form and, death of joint owner is treated separately based on his nomination form for his share in the property it has nothing to do with 1st member.
Transfer or transmission decision is taken by the society MC and to be extra cautious, sometimes, they may ask for more documents.
In case of any dispute with the society or doubts in your mind it is my opinion that a lawyer's services will be absolutely essential. They are in a better position to interpret law to your advantage.
**********************************************************************************
Q/MB/042/16.01.2018
.
साहेब सोसाइटी सिंकिंग फण्ड लिफ्ट खरीदी करता वापर करु शकतात के नाही??
मला उत्तर दया।
Answer by Madhukarji
Vadan ji,
With relaxation of rules regarding use of sinking fund, it can now be utilized for any major maintenance work. So answer is yes you can utilize sinking fund for buying new lift.
**********************************************************************************
Q/MB/043/23.01.2018
Sir,one of the flat owner sell his flat in the mnth of Dec 2017 & now New owner of the said flat demanding NOC (For Bank Loan)frm our society who takes handover soc frm builder in Jan 2018......sellers dues towards builder r also pending....pls guide how to tackle .....pls advise🙏
Answer by Madhukarji
Benke ji,
Handover by builder to society is very important. It contains list of flat owners. Builder will surely show the seller as the flat owner because of money owed to him by seller.
Society should inform the buyer that NOC for bank loan can be issued only after builder handover and NOC from the builder. This NOC from builder will ensure that the seller and builder don't have any other agreement because of dues. After getting these documents the buyer can apply for membership of society by additionally submitting sales deed, necessary forms and cheques for Rs 100,Rs 500 and Rs 25000.
Since the buyer has applied for membership and NOC for loan, he will have to submit these documents to the society.
He can get bank NOC after completing above procedure.
**********************************************************************************
Q/MB/043/24.01.2018
Good morning Sir,
Question..
Sir our society has one set amount for water charges per flat.. but is being observed few flat has say about 2-4 members and some like 15-16 per flat.. so we understand there water consumption will be high..
Is any law were we can charge higher members flat extra for there water consumption...
thank you..
Answer by Madhukarji
Sheetal ji,
Water charges are either per flat or per number of water inlets to the house. I have not seen per head water charges.
**********************************************************************************
Q/MB/044/16.01.2018
Dear Mr Madhukarji.
Thanks for the info. However I doubt the correctness of old share certificate issued earlier. In our first share certificate it is printed authorised share capital amount 2000000/-divided by 4000 shares each of rs. 50/- . But as per balance sheet share capital is RS 50000/- for 200 units @rs50 each for 5 shares
Now it will be 10shares @50/- each total 500 x200 units equal to 100000/- am I right
Answer by Madhukarji
Ronald ji.
Authorised share capital can be much higher than paid up capital. These figures were decided at the time of society registration. There is no issue If your Authorised share capital is Rs 2000000/- and paid up is Rs 50000/- for 200 units. Only paid up capital will reflect in the balance sheet. Now as you rightly said the paid up capital is increased to Rs 100000 for 200 units at 10 shares of Rs 50 each/unit. Next balance sheet will reflect this figure.
So your authorised share capital remains Rs 2000000 and paid up capital becomes Rs 100000 .
I am enclosing appendix 1, share certificate of housing society. You will notice that all the figures are to be filled by hand and that is how we should keep it. These are standard share certificates available in good stationary store.
**********************************************************************************
Q/MB/045/15.01.2018
Sir,
Have some query, pls guide us.
A member in our society has requested to convert his existing windows to French window including kitchen window.
Can v allow this request ?
Pls reply.
Answer by Madhukarji
Mukesh ji,
Yes, you can permit it provided the work will not tamper with any beams or columns.
**********************************************************************************
Q/MB/046/15.01.2018
Dear sir,
While carrying out major repairs / restoration work of Society buildings, Public Liability insurance is mandatory along with Workmen’s Compensation insurance, please suggest.
Answer by Madhukarji
Sameer ji,
Yes, it is necessary for the contractor to take these insurance policies and not the society. Society should only ask for the copies of policies to check the validity.
**********************************************************************************
Q/MB/047/15.01.2018
Dear sir ,
Landlord letting out shop for veg.chinese restaurant, should society ask for any - municipal or Fda or any other licence copy ?
Answer by Madhukarji
Jeevan ji,
Yes , apart from rent agreement and police verification report the society should ask for copy of license issued by shops and establishment department of local municipal authority and, due to safety reasons, copy of clearance from fire officer.
**********************************************************************************
Q/MB/048/19.01.2018
In the society flat is owned jointly by husband and wife Husband dies without submitting nomination form to society can wife be total owner of the flat or to do what is procedure to follow
Answer by Madhukarji
Lewis ji,
If the deceased has not left behind nomination or will, his property will be divided equally among his wife, children and mother. So to transfer the flat in wife's name, she will need relinquishment deeds from her mother in law and adult children. If children are minor then wife is their natural guardian and no deed required from them.
**********************************************************************************
Q/MB/049/19.01.2018
Sir, In the society flat is owned jointly by husband and wife and during the filling up nomination form, what is the procedure to fill the same, the wife should be co-owner or declared as first nominee, because both ( Husband & Wife) names are already written in the owner's column. Pls. reply sir as soon ad possible....
Answer by Madhukarji
Ravi ji,
If their names appear on the sale agreement as well as on the share certificate then they are joint owners and each one can file a separate nomination and nominate anybody they want.
**********************************************************************************
Q/MB/050/21.01.2018
Respected sirs,
Need your help in d following case..
Can any of the society member ask information / documents under Right To Information Act from the Society Committee such as audit report, monthly expenses, vendor appointment letter, society bank passbook prints etc. Also can he ask personal information of committee members such as how any children member hv and their DOB etc. Is it mandatory for committee to provide such type of information to individual member.
As all the account related documents ,audit report was already approved in AGM and copy of the same along with MoM of society was already distributed to all members.
Pls note that the said member has done illegal work in his flat keeping society in dark and society has issued him a notice.. In response to that notice he is asking the above information under the right to information act.. also Pls let me know, does any of the committee member comes under the definition of 'information officer'. He has addressed the letter to ' माहिती अधिकारी' of the society.
Kindly reply.
Answer by Madhukarji
Siddhesh ji,
Yes co operative housing societies are covered by RTI, since housing societies are private bodies so any information sought from housing society must be directed to them through DDR.
Following are the details for you.
With the enactment of the 97th amendment to the Constitution of India and its inclusion in Article 19 of the Constitution, formation of co-operative societies has become one of the fundamental rights of an Indian citizen. Besides, they have also been given the status of local self-government like rural and urban municipal bodies in Part 9 of the Constitution. Cooperative societies now have thus come under the ambit of the Right to Information Act, 2005 and under the scope of “public authority” defined under Section 2 (h) of the RTI Act, 2005.
Section 2(f) of Right to Information Act, 2005 states that " information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force. As per Section 2(f) information can be accessed by a Public Authority from a private body. Hence in this scenario, co-operative housing society is a private body and the Registrar of Co-operative Societies is a public authority.
Co-operative Housing Societies are not directly covered under Right to Information Act, 2005. But, as per section 2 (f), stated hereinabove they are indirectly covered through the office of Deputy Registrar of Co-operative Societies. The same can be done by making an RTI application to Deputy Registrar of the ward in the format prescribed under Maharashtra RTI Rules “Annexure A” with Rs 10/- court fee stamp or Indian Postal Order.
The Deputy Registrar, using his powers under Section 77 and Section 78 of the Maharashtra Co-operative Societies Act, 1960 will forward this application to the Chairman/ Secretary of the society and the said Chairman/ Secretary will have to provide information to the Registrar, who will in turn pass on the information to the concerned member applicant. However in some cases, the Registrar may direct the Chairman/ Secretary to provide required information directly to the concerned member applicant. If the information is not provided within 30 days, the concerned member can invoke two legal mechanisms by filing an appeal with the First Appellate Authority i.e. deputy registrar herein under section 19 (1) of RTI Act, 2005 or by invoking Section 148A of MCS Act, 1960 under the context of Contempt of Co-operative Courts.
**********************************************************************************
Q/MB/051/21.01.2018
Can society impose penalty to members who do not submit L&L agreement in Society on time and how much?
Answer by Madhukarji
Lokesh ji,
These penalties are to be decided by the society and should be approved by the general body. In my opinion the penalty should not be more than Rs 5000/-. Even registrar cannot impose penalty more than Rs 5000/- in a year on a society who fails to comply with statutory requirements.
**********************************************************************************
Q/MB/052/21.01.2018
Secretary has two flats in the building & taken portion of one flat into the other after the OC. Permission from BMC/ Registrar is not taken. Now
she wants the society to give a letter to them as to the areas of two flats. Is Society in a position to certify the areas of their flats ?
When society refused they are blackmailing the members saying that they have covered their duct areas which is illegal & they will go & complain to the BMC.
Please tell me what is the solution.
Answer by Madhukarji
Uma ji,
Society cannot certify area of flat other than what is on the approved plan, submitted by builder to BMC and, is also attached to conveyance deed. Altered flat is illegal.
Altering a flat is a serious offence compared to covering duct. You can inform the secretary that the members will also complain against her to BMC about joining of flats/altering area. If BMC staff visits your place they will remove illegal construction and also take legal action against the secretary.
Ask her not to threaten you, if a member complains against her Action will be taken against her under following BMC rules.
As per Section 342 of BMC Act, 1988 (amended till date), The "tenantable repairs" shall NOT include the following:
• Replacing or removal of any structure members of load bearing walls.
• Change in horizontal or vertical existing dimensions of the structure.
• Lowering of plinth, foundations or floors.
• Addition or extension of mezzanine floor or loft.
• Flattening of roof or repairing roof with different material
• No merger of tenancies by removal or opening of any walls in between two or more tenancies.
• Changing location of bathroom/WC/kitchen sink, in a way that can cause leakage to residents below.
• Increasing the internal height of the structure.
BMC Notices
Notice issued by BMC under Section 354 is a STOP Work Notice if it feels ongoing work is unlawful. If there is unauthorised construction then BMC can issue a Show-Cause Notice under Section 351. This is NOT a Stop Work Notice – it is issued when work is completed and persons are utilizing the said premises. If the officer is not satisfied with the documents produced, then he has to give them an opportunity to revert the property back to the original legal status after which, the BMC can initiate demolition under Section 488.
**********************************************************************************
Q/MB/053/21.01.2018
Sir, mein J27-31 society, global city Virar se hu. Kal members ne chairman aur secretary ko chairman ke naam letter diya. Chairman aur secretary ne letter acknowledge karke dene se mana kiya. Chairman samne rahte hue bhi letter watchman Se acknowledge karake diye. Sir ye kitna Sahi hai. Letter niche post kar raha hu.
Answer by Madhukarji
Anil ji,
It looks like, yours is a comparatively new society and the MC members are not well versed with bye laws.
Your chairman is not happy with your letter so he has sent acknowledgement through watchman. It is ok as long as you have the acknowledgement. He should know that acknowledgement of letter does not mean acceptance of the contents.
Your AGM was on 24th Sept 2017, and you have raised your objections after almost 5 months. Is this delay because draft minutes were not circulated among members?
Bye law 109 says
"Society MC should finalize GB meeting minutes within 3 months of the date of the meeting & Circulate it to all society members within a 15 day from the date of approval in MC meeting."
If minutes were not circulated among members then every resolution passed in that meeting can be questioned. On the other hand if draft minutes were circulated and you did not raise objections within 15 days of receiving them, then MC can go ahead and finalise the minutes, obviously you can't expect them to wait indefinitely for finalisation of minutes.
Check above point and also make a suggestion to video shoot the general body meetings so that objections raised can be cross checked.
**********************************************************************************
Q/MB/054/21.01.2018
Hello sir, i have one query regarding NOC.... I m committee member of the society so one my flat owner need NOC for loan transfer purpose but that owner having Home loan in other bank but now flat owner needs to transfer the loan from other bank so that purpose flat owner wants NOC ...so kindly guide me what is the process and which documents should required for society ....
Answer by Madhukarji
Sudir ji,
Seller of the flat should collect from his bank and give to society copy of loan foreclosure (how much loan is balance) and list of documents with the bank(regarding the flat) .This is also considered as NOC from his bank for transfer of loan .He should also submit copy of agreement to sale deed(it indicates value of the flat and other financial conditions).
The buyer of the flat should write a letter to the society about his intention to buy the subject flat with bank loan, he should also enclose a letter from his bank to the society requesting for NOC to transfer loan from sellers bank to buyers bank.
Society can now issue provisional NOC for transfer of loan from one bank to another (or from seller to buyer) and, final NOC can be given after society gets letter from sellers bank informing about closure of sellers loan and transfer of the same to buyer's bank. This way there will be only one NOC issued by society for mortgage /loan against the flat.
You should also consult your CA to ensure that you are taking the right step.
**********************************************************************************
Q/MB/055/27.02.2018
Dear Sir's
Mother (First name) & Son (Second name) is the owner of the flat and residing in the flat. Now Mother wants to gift her share of the flat to the Co-owner (Son) so that he become the sole owner of the flat. Loan has been availed by the Co-owner. Share Certificate is lying with the Society. Further , mother has one more son (to our knowledge) who visits them but not residing with them.
Should Society insist on the following prior to affecting the name change in the ownership and in the Share Certificate :
1. Gift deed to be duly registered and not just on stamp paper.
2. Clearance from Bank to be obtained for ownership changes.
3. NOC from blood relations i.e. Brother / Sister.
4. Whether the changes to be noted in the monthly management committee meeting and in AGM too as henceforth Son would be the sole owner and authorised to attend Annual General Meetings hereon.
Kindly advise / guide / correct steps to be taken to avoid legal complications and anything amiss from our side in this matter.
Answer by Madhukarji
Documents listed by you are correct but in my opinion take following precautions
1) Gift deed must be registered and receipts for registration fee paid and stamp duty paid should be attached with the deed
2) Apart from other forms the incoming member should indemnity society for, from and against any law suit/expenses that may arise due to this transfer.
3)If Mother has purchased the flat herself then she is free to gift it to anybody without noc from blood relatives. But if they are willing to give you that noc from her second son then take it for society records.
4) if son taken loan then noc from bank is necessary. I am only wondering how the share certificate is already with the society.
5) Decision on transfer can be taken in monthly meeting and decision ratified in next AGM.
DISCLAIMER: I am providing this information as a public service. I try to make it accurate as of the date noted in the materials. Sometimes the laws change. I cannot promise that this information is always up-to-date and correct. You should consult your lawyer or contact your legal advisers and get into greater detail before taking any action.
**********************************************************************************
Q/MB/056/27.02.2018
Is there any rule according to bylaw, Sir can secretary regularly move out of india for his officials for more than 1 month per visit
Answer by
Madhukar
Sonali ji,
There is no bye law which prevents any office bearer from staying away from society for longer period of time. If Secretary is away then Chairman should take over Secretary's responsibilities.
However bye law 118 a(ii) says that a committee member is automatically disqualified if he/she remains absent for 3 consecutive MC meetings.
**********************************************************************************
Q/MB/057/27.02.2018
Dear sir, my query is regarding Festival fund. Hsg society wants to create Festival fund for various cultural activities. It wants to collect some amount on monthly basis from members and wants to include the same in monthly maintenance bill under separate head as Festival fund. Can society can do so after passing resolution? Whether members can voluntary contribute to this fund over and above their monthly contribution?
****
Answer by
Madhukar
Umesh ji,
As per bye law 64 (xvii) society can collect any other charges in monthly collection from members, so you can consider festival fund collection under this heading and get the resolution passed in the general body meeting.
Also as per bye law 7e, voluntary donations can be accepted from members and bye law 12 a(vi) says that if this donation is for specific purpose then it can be utilised accordingly instead of adding it to reserve fund. So answer to both your questions is yes.
**********************************************************************************
Q/MB/058/27.02.2018
One question that in residential flat 2 owners are there, can both owner file nomination?? Separately??
Answer by
Madhukar
Vadan ji,
Yes joint owners can file nomination separately and in my opinion this is what they should do. Nomination comes into picture only on death of the member. Joint nomination will come into effect only after death of both the members which may create legal problems after death of one member.
Q/MB/058/27.02.2018
We are redeveloped society and some additional members are there. My query is that we are undertaking process of issue of new share certificate and can we issue it directly in the name of current owner or it has to be done in accordance with chain of agreement
****
Answer by
Madhukar
Rahul ji,
In my opinion ,For new members ( additional flats sold by builder) the share certificate will be in the name of the additional member, for old members the chain of transfers should be recorded. Share certificate in housing society is acceptable document to show chain of ownership as per the society's records.
**********************************************************************************
Q/MB/059/27.02.2018
If the jointly flat owner first name appear in share certificate dead after that the second owner want to sell the flat
What is the procedure?
Which papers required by society
Kindly advice
****
Answer by
Madhukar
Ramesh ji,
Before selling the the flat, the joint holder should become a rightful owner and member of the society. You have to see if the first owner has filed nomination papers with the society.
You have not mentioned who the joint owner is. I presume it to be his wife.
Transfer of flat in such cases is covered by bye laws 33 and 34.
If there is a nominee or nominees and they along with other blood relatives (husband, wife, children, mother, wife of deceased son) have no objection and are willing to relinquish their right in the property in favour of the wife then she should apply to the society to become some member of that flat, attach all relinquishment deeds, indemnity bond, death certificate, original share certificate and necessary society forms. She can sell the flat only after society transfers the flat in her name.
If there is no nomination then apart from above procedure, society will also advertise in two local newspapers, inviting any claim on the property ( this is at intending member's cost). If there are no other claims then society will transfer the flat in her name. If there is any doubt in the minds of society committee members or there are disputes among the relatives then MC will ask her to obtain succession certificate ( bye law 34). After completing this procedure, she will become rightful owner of the flat and only then she can sell the flat.
DISCLAIMER: I am providing this information as a public service. I try to make it accurate as of the date noted in the materials. Sometimes the laws change. I cannot promise that this information is always up-to-date and correct. You should consult your lawyer or contact your legal advisers and get into greater detail before taking any action.
**********************************************************************************
Respected members, hav one question like if some of society members hold street dogs(dirty dogs) at thier door with mat and bowls of foods to serve them and also encourgae them to sit / sleep whole night and even in day, what action society can take as it disturbe other members. I know they are doing illegal work, but how to handle legaly,as i have objected many times.
Answer by Madhukarji
Santosh ji,
handling of pets or stray dogs is decided by animal welfare board and their rules do not leave any room for police complaint or legal action as feeding strays in housing society compound is very much permitted. I am enclosing AWBI circular for you. Only way out is to convince the member to feed the strays outside the premises so that children playing in society are safe.I am attaching the circular for your reference.
**********************************************************************************
QW/M/002/20.12.2017
Hello Everyone, I have one doubt about attending Annual General Meeting, can flat nominee attend the AGM, and express his/her opinion ? Bcoz in our society, committee allows only society flat owners (shareholders) only to attend the AGM.
Please send any law regarding this, so i can fight if such rule is there.
Also our committee charge rs. 200 as fine for those do not attend the AGM, is this right as per law?
Answer by Madhukarji
Deenesh ji,
Housing society is formed by members for members and works on principle of mutuality so there is no scope for anybody else attending society meetings except the member whose name appears first on the share certificate of the society. Bye laws 103 makes this point crystal clear. and bye law 104 specifies that only associate member can attend meeting in place of the member. Associate membership has some conditions attached to it and it is a separate subject all together.
As far as society charging Rs 200 to members who don't attend the meeting is concerned, bye law 66a(xvi) authorises the general body to collect any other charge as may be decided in the meeting so there is nothing illegal about this levy as it is decided in the interest of the society by the general body. This is one of the many points discussed in the general body meeting and that is why you should attend the meeting.
The managing committee members work voluntarily for the society, they also are busy like you and any other member. When they call the meeting to take some important decisions and find that members are not attending the meeting can you imagine their frustration?. You imagine yourself in secretary's shoes and you will know their feelings. Instead of fighting with them why don't you join them ? At least you will know their working and problems.
**********************************************************************************
QW/M/003/20.12.2017
If at AGM it will be passed ,so committee can charge the penalty for not attending AGM
Answer by Madhukarji
yes that is my opinion. There is no bye law for or against such a penalty but in the interest of the society the mc can formulate some specific bye laws within the framework of MCs act 1960 and rules 1961.
**********************************************************************************
QW/M/004/20.12.2017
Dear sir if 1/3 majority not attending the AGM that time committee can reschedule the meeting after 30 minute and AGM can be held and do the proceedings
Answer by Madhukarji
Correct. Does this mean society should work with only few members? What happens when you want to go for redevelopment ? Ultimately some decisions are society specific. I have also seen societies where attendance is 80 to 100% for almost all meetings. They discuss problems in a friendly way and enjoy it like a get together. Even they organise tea snacks etc which adds icing on the cake. It is the mindset that is important.
**********************************************************************************
QW/M/005/20.12.2017
Can any one suggest me.
In Virar area lots of builder are going for development and they ask a money from the tenant for redevelopment. Is there any law that builder can ask a money from tenant for the same
Answer by Madhukarji
It is other way round. Builder has to pay the tenants. Don't these societies have their consultants for guidance?
**********************************************************************************
QW/M/006/18.12.2017
Urgent question.
One of the members outstanding maintenance is 28000 and we have sent 1st 101 notice to him. Today we called him for payment of amount. But one of the other member who's having 118000 as outstanding came to interfere and both left the meeting.
He is encouraging not to pay the outstanding. Whats action can the society take against both of them. And what action should be taken on members who create problems in normal functions of the society.
Answer by Madhukarji
Dear members,
I am enclosing a document which gives detailed information about 4recovery under section 101.Go through it and if you still have problems then as Deepak ji has suggested contact the federation.
**********************************************************************************
QW/M/007/16.12.2017
Which are the Forms required to be submitted to the Society for getting the shares of a deceased member (single name) to the name of nominee (Son).
Please share the information. Thanks.
Answer by Madhukarji
Nair ji,
Procedure to follow for Transfer of flat when nomination is made by the flat owner
(1) The form of application for membership in Appendix-15, by the nominee/ nominees [ under Bye-law No. 34] with Rs100 entrance fee.
(2) If nominee has no independent income source, an undertaking on Rs100 Non-Judicial Stamp Paper, in Appendix-5 will be furnished by a person who is a close relative and an earning member and who is ready to discharge the liabilities of the prospective nominee-member to the Society. [ under Bye-law No.19(A) (v)]
(3) Undertaking on Rs100 Non-Judicial Stamp Paper to be submitted by the prospective nominee-member, in Appendix-4. [ under Bye-law No.17(b) and 19(A)(iv) ]
(4) Copy of the Nomination Form in Appendix-14, of the deceased member. [ under Bye-law no.34 ]
(5) Original or Attested Xerox copy of the Death Certificate of the deceased member. [ under Bye-law no.34 ]
(6) Xerox copy of the Share Certificate of the deceased member, with undertaking on the Xerox copy, that original share certificate will be produced by the member, as and when asked by the Secretary for making the name change by the Society.
(7) If the nominee already possesses another flat in the same society, then to hold an additional flat, an application in Appendix-28, has to be made by the nominee-member. [ under Bye-law No. 62 ]
(8) Nomination to be made by the nominee-member, in Appendix-14, in triplicate. [ under Bye-law No.32 ]
Above procedure is enough for society to transfer the flat in Son's name.
However this only makes the Son caretaker of the flat and he cannot sell/rent the flat. To get the title ownership of the flat he will have to get succession certificate from a competent court or get registered relinquishment deeds from other family members (his mother, other siblings ) who can stake claim to the flat based on succession laws.
**********************************************************************************
QW/M/008/17.12.2017
Can we put permanent shed on terrace
Is there any vvmc permission and structural audit is mandatory for shed work
Answer by Madhukarji
Nilesh ji,
If you cover terrace or even erect shade for car parking then VVCMC will consider it unauthorized construction, they will consider the covered area as additional FSI and increase property tax proportionately for the period the shed was erected and then demolition it. If you are thinking about rain shade then take permission from VVCMC (it takes lot of time,energy and money). If they allow then the shade will be very low so that terrace cannot be used for functions etc.
**********************************************************************************
QW/M/009/17.12.2017
Q.1
Provision in bylaws for paying to committee members as a honourarium मानधन is a Marathi word
Q.2
Can a state/central or semi government become a MC member or office bearer with honorarium
Answer by Madhukarji
Nilesh ji,
1) Chapter xiii bye law 149 b(ii) states "To pay honorarium to office-bearers of the society not exceeding 15 percent of the net profit to reward them for the sacrifice of their valuable time for the working of the society. However, the office bearer may take such amount of annual limit 15% or Rs.2000/-, whichever is less."
2) As per The Central Civil Services (Conduct) Rules, 1964, rule no 15, government servant (central or state) needs permission from respective higher authorities to become MC member or accept honorarium.
**********************************************************************************
QW/M/010/17.12.2017
Hello sir. Can you please let us know upto what amount can the chairman/secretary take decision to use in the society for any work including gutter cleaning or for any amount even Rs 200.00 do we need To call Managing committee meeting.
Answer By Madhukarji
Vikas ji,
You don't need advance MC approval for every small expense. Even though there is no specific bye law on this subject it is understood that each society will have it's own rule which is ratified by the general body. Small societies should allow petty expenses upto Rupees 700/800 to be spent on problems which need immediate attention. To keep the decision transparent, one of the office bearer along with one or two members should check the problem and take immediate action to spend money within the set limit to resolve the issue. MC can approve these expenses in their next meeting. It should be understood that choked drainage, non functional security lights, leaking water pipes etc need urgent attention.
**********************************************************************************
Q/MB/011/20.12.2017
I would like to ask one question regarding construction of gate in one society which was open as per the plan. Now new committee wants to construct a gate there. All shopkeepers and owners have object to construct the because of loosing business. How to tackle the situation. Can we complaint to the registrar?
Answer by Madhukarji
Santosh ji, You are not going to achieve anything by complaining to DDR or going to the court. This is a matter society members should resolve themselves. If you are erecting the gate for security purpose then may be you can fix sliding gate which can be open during day time and closed by late evening or some other compromise solution.
**********************************************************************************
Q/MB/012/20.12.2017
I don’t think so there is any section for penalty for members who are not attending AGM / SGM, only Society can mark their status as Inactive if they failed to attend single meeting since past 5 years.
But as mentioned by Madhukar Sir, AGM can pass the Resolution for such kind of penalties as per BYE LAW 66a(XVI).
Answer by Madhukarji
Sameer ji and Digesh ji,
As I mentioned earlier there is no bye law which specifies penalty for not attending general body meeting s. But there are certain provisions in the bye laws which leave some scope for a society to formulate rules specific to their society. So depending on the type of members you have you can use 66 a(xvi) to impose a nominal penalty so that the members will attend the meeting. There are societies who use this method, some societies instead of penalty organise snacks etc to encourage members to attend and some societies have enthusiastic members and they don't need penalty or incentive. So make rule suitable to your society. After all it is a question of roof on the head, more members attend the meetings better it is for the society it gives a chance to MC to put forward their proposals and pass them with real majority. One thing is definite when you attend these meetings there is a sense of involvement. So decision is entirely yours.
**********************************************************************************
Q/MB/013/22.12.2017
Dear Sir
I am interested in selling my property (flat) in a society.
I informed my society about the same.
now I got a client for my property (within 2-3 days).
I got a partial payment of my flat cost (around 15% along with he produced pre-saction Letter for home loan from Bank of India). And he (client) is asking Society NOC to submit it to his bank for Home loan approval and followed by the disbursement of it.
My society maintenance dues are cleared till Jan 2018.
When I approached My society MC they asked for various docs like
1) Resignation letter of membership by seller.
2) Copy of chain of agreements.
3) Declaration by seller on Rs. 100/- stamp paper.
4) Indemnity bond by seller on Rs. 500/- stamp paper.
5) Transfer fees of Rs. 25000/- + 500/- + 100/-
6) Transfer Set with Nomination form in triplicate.
7) KYC documents of owner & seller both.
8) Declaration / undertaking by purchaser on Rs. 100/- stamp paper.
9) Draft of NOC of bank / financial institution.
Also the society MC is asking all the documents in original copy and not photocopies. My documents are with my bank (Home loan).
My deal is not yet completed then is it advisable to sign the above mentioned documents ??
Please guide.....me
I think I need only NOC from my society at this stage.
The transfer process I wanna begin after the completion of my deal.
Please show me the way.....
Regards
Prasad S R.
Answer by Madhukarji
Prasad ji,
1) your society will not issue NOC to the buyer as you have taken NOC for your loan and society must have given undertaking not to permit creation of any third party rights on your flat untill loan is fully paid.
2) What you can do is inform your bank that you want to sell your flat and repay the bank loan. get a letter from the bank - usually called as foreclosure statement and/or document custody letter.Bank will give you list of documents in banks possession (for the property) and fore closure statement (how much balance one needs to pay to close the loan). This can be considered as banks NOC.
3) Ask buyer to get provisional NOC letter to be given by the society to the buyer's bank. The NOC format is provisional in which it must be mentioned that "Society will provide NOC after receiving existing loan closer letter from existing bank".
Buyer should submit fore closure statement (how much balance one needs to pay to close the loan), list of documents with seller's Bank, sale agreement which will indicate the value of flat, and provisional NOC to his bank. These documents should be enough for the bank to transfer loan amount due to the seller's bank, and seller's bank should issue loan closure letter.
4) You will now have to talk to your society's office bearers. Inform them that the buyer's bank is disbursing the loan on the basis of documents with the seller's bank. So society doesn't need any more documents. All the copies of chain agreements will be with the society without which they could not have recorded earlier flat sales in their records. Also all original documens about present seller are with his bank because of his bank loan.
5) probabely the mc members don't know what kyc they are talking about.If it is a matter of submitting pan and aadhaar copy, you can do that.
6) All other documents asked are routine forms, declarations, and cheques.
7) If you are still not able to convince the mc members then you can take them to the bank officer who will explain everything to them.( Travelling and lunch on your account)
8) Once the MC members are convinced about the documentation you can register the agreement and pay duty, registration fee.
9) If nothing works then last remedy is complain to DDR.
I am not an expert in financial matters. This information is gathered from my friends in this field. You should always cross check with your CA/Lawyer and decide.
**********************************************************************************
Q/MB/014/03.01.2018
Need some advice in one society matter
one flat is in the name of mother and younger daughter. Now mother wants to remove her name from agreement and want to add her elder daughter's name. she want to do gift deed.
Can u please advise how we should proceed being a secretary? What r the documents we should collect in this regard? is it valid if their brother object to society once gift deed done ?
Answer by Madhukarji
Yogesh ji,
If mother has invested her own hard earned money to buy her share in the flat, then during her lifetime she can gift the flat to anybody she wants and nobody can object. If she received her share of the property from her husband/parents then the children have a right on the property and her son can definitely object to the gift deed. In such transfer cases the MC must take a decision based on the facts presented by the member. Since secretary has a doubt that the member's son may object to the gift deed , he can ask the mother to submit no objection affidavit from her son. Aslo when the transfer goes through ensure that you take indemnity bond from the incoming member .
**********************************************************************************
Q/MB/015/23.12.2017
Hi!
A committee member sold her flat n rented a flat in the same society.
1. can she still remain a committee member?
2. Another member has not attended the mc meeting for 4 months.
3. How can we fill the two vacancy in the MC.
We just had our elections on Apr 17.
Does she hv to give her resignation.
Answer by Madhukarji
Elizabeth ji,
The lady in question should have resigned before selling her flat. Since she has not done it , she automatically ceases to be MC member once she has sold the flat. The Secretary should pass a resolution in the monthly meeting and remove her from the committee.
As per bye law no 118 a(ii), any mc member who remains absent from 3 consecutive mc meetings without leave of absence gets disqualified. I suggest check with the member if he has any problem before removing him from the mc.
To fill these vacancies co option is not allowed so you will have to inform election authority to conduct election to elect two new mc members. In the mean time remaining members will manage the work. .
**********************************************************************************
Q/MB/016/23.12.2017
Dear sir,
Can an owner give his flat to their extended family yo stay?
Without L&L agreement and PV copy
Answer by Madhukarji
Nitin ji,
Family Member means: Group of persons which includes Husband, Wife, Father, Mother, Sister, Brother, Son, Daughter, Son-in-Law, Brother-in-Law, Sister-in-Law, Daughter-in-Law, Grandson & Grand-Daughter.
Non-Occupancy Charges CANNOT be levied to the above family-members of the bonafide Member. However, intermittent joint-stay of other family members OR friends, will not attract Non-Occupancy Charges.
**********************************************************************************
Q/MB/017/02.01.2018
Cn any member give his vacant flat to other member of society without any LL agreement for 1-2 months as repairing work is going on in other members flat
*****
Answer by Madhukarji
Nilesh ji,
If you see Legally then the flat cannot be given on L&L without agreement and without paying NOC. On humanitarian ground, in my opinion,yes flat can be given to another member for a short period just to help him and his family.
**********************************************************************************
Q/MB/018/02.01.2018
The Special General Body Meeting had to be postponed twice for want of quorum. Even half the members were not present. What can be done to conduct the meeting
Answer by Madhukarji
Girish ji,
You don't have to keep on postponing sgm for want of quorum. The rule for postponing sgm is as under.
Holding Adjourned meeting - If within half an hour after the time appointed for general body meeting of the society there is no quorum, the meeting , if convened upon the requisition of the member shall be dissolved.
In any other case, It shall be adjourned to a later hour on the same day and at the same place, as may have been specified in the notice, calling the general body meeting of the society or to a subsequent date not earlier than 7 days and not later than 30 day and at such adjourned general body meeting, the business on the agenda of the original general body meeting shall be transacted, whether there is requisite quorum or not.
**********************************************************************************
Q/MB/019/02.01.2018
Does for NOC required for loan, Secretary signature compulsory or any two between Chairman / secretary / Treasurer ?
****
Answer by Madhukarj
Mandar ji,
Housing society documents should be signed by secretary and one of the remaining two office bearers. If member needs NOC urgently and secretary is not available then the remaining two office bearers can sign the document.
**********************************************************************************
Q/MB/020/02.01.2018
Which fund we can use for building repairing,painting ??
100℅ repairing fund/surplus funds or collection from all members and collection on sq.ft.basis or equally?
Answer by Madhukarji
Nilesh ji,
It is your general body which decides how to utilise the funds. You can use building repairs fund or keep it for future and ask members to contribute towards building repairs or you can use part of accumulated fund and raise balance by asking members to contribute. If expenditure is properly accounted for then there is no problem.
**********************************************************************************
Q/MB/021/02.01.2018
Hi all
If we send 101 notice on 1 dec and the members does not accept the notice by registered post and notice comes back to the society office on 7th dec. Then should be immediately send the second notice of 101 or should have a gap of specific days in between? Gap of how many days?
Answer by Madhukarji
Dear Member,
I am enclosing a write up on 101 recovery procedure. Go through and you will get answers to your questions.
**********************************************************************************
Q/MB/021/02.01.2018
Actions to be taken against defaulters
-- Our society is still facing a lot of problems because few members are so adamant as to not to pay their dues for years the total dues of the defaulter members are over 4.5 lacs and this is causing a lot of distress to other members of the society..we are applying an interest of 21% per.annum on total arrears and still they don't bother to pay as though they never want to pay their dues.
Can we take these actions
-- We are taking tanker water from a private water tanker service as we do not have BMC water as of yet and those tanker bills have to be paid every month and because of these defaulters their bills are delayed and the quality of water deteriorates can we stop the water supply to those flats with a 12 Day notice? I read somewhere that since we are using tanker water and we have to pay their bills monthly which is over 20,000/- a month..if we stop water to those flats our monthly cost will go down.
-- One member has a tenant in the flat who's Rental agreement has expired in October 2017, and they have not yet submitted the rental agreement copy to the society and no NOC has been taken can we take any action against this flat member who is not paying dues and over and above keeping tenant in the flat who is enjoying all the services? This member also happens to be an committee member who does not attend any meetings.
-- We had collected repair funds and many have paid that, but these handful defaulters have not paid and we are due to start our repairing but the ongoing expenses are becoming huge because these members are not paying, and other members who have paid are asking us when will we be starting the repairs so it is just an havoc here in the society.
I being the secretary am fed up and frustrated with all these issues and even after my repeated requests these inhuman members don't co-operate so we want to take strict action against these please experts advice as to what to do, please reply this is URGENT.
Thank You.
Answer by Madhukarji
Hefin ji, I can understand your frustration but many societies are facing similar problems. Recovery process is not going to be easy but that is the way it is.
You have 3 problems
1) You as secretary and the MC members have organised water supply to members but some members are not paying for this service.
2) Society's major repair work is stalled as these defaulters owe huge amount to the society.
3) one defaulter member who is also a committee member has given his flat on rent without informing the society and without submitting any documents.He also does not attend committee meetings.
In my opinion you can take following steps.
1) Since the MC is buying water for members, I don't think you can cut off water supply to some members.
2) Call SGM and inform members that repairing work cannot be started as these few members are not paying any money and if anything happens these defaulters will be responsible. Let this be recorded in the minutes. This way not only secretary but all members will be after the defaulters to pay the money.
3) any MC member who defaults on payment or does not attend 3 consecutive meetings without leave of absence gets automatically disqualified to be MC member. So you can pass a resolution to that effect in monthly meeting and then get general body approval by 3/4th of members present. Send letter to DDR office explaining this and request for election to elect a new MC member.
Through a notice inform the member that if within 15 days he does not submit all documents about L&L , society will complain to police about strangers staying in the society without any permission. Society will also complain to sub registrar and income tax authority about illegally renting his house.
Also send notice to all defaulters to pay outstanding within one month otherwise society will start recovery under act 101. If they pay it is fine otherwise take a lawyers help to start 101 recovery process by issuing the 1st notice as per the act.
On 22nd December on this group while answering another member's question, I have given procedure to recover outstanding amount under section 101 , you may please go through it. Remember you need patience and lawyer's help to recover the amount.
**********************************************************************************
Q/MB/022/02.01.2018
Dear Mr Viswanathan, we're in process of preparing new share certificate. In the old share certificate should we print " new share certificate issued in lieu of old share certificate no. Nos - to - which now stands cancelled / invalid " kindly suggest if fine or require changes.
Also inform if all transfers during the course of years have to be mentioned or the last transfer effected. Await your reply asap. Thanks Ronald Pais rose nagar naigaon (w)
Answer by Madhukarji
Ronald ji,
Format of share certificate is still the same as per appendix 1. So don't print anything additional,you can endorse whatever you want on the blank space at the top of the certificate and on the back of the counter foil and let the secretary and chairman sign it. You can even use a rubber stamp for endorsement signed by secretary and chairman.
You need to make all the entries at the back side of the share certificate right from the 1st transfer. You are going to take back the old original certificate and against it issue the new one.
Don't forget to make a detailed entry in the minutes of mc meeting just before issuing the new certificate.
Attached is appendix 1.
**********************************************************************************
Q/MB/023/02.01.2018
.
Dear Sir,
I have an query for Flat resale in case of First member death.
Case: Third person has claimed for the flat which is owned by Husband-wife jointly. Husband has expired few months back. Now wife wants to sale the flat but third person is claiming that he has given money to deceased member against this flat by cash against which deceased member given him same amount of cheque in case of cancellation. After death of the first member third person has deposited cheque but it got dishonoured. Now third person has complained in society not to give NOC for resale & sent notice through advocate. While investigation we came to know that there is no agreement or MOU available of this transaction. Also wife(2nd owner) is not aware & accepting this transaction. What shall society do in this case?
Answer by Madhukarji
Nishant ji,
I presume there is no will and even if there is nomination and the blood relatives have given their no objection, since there is 3rd party claim society can safely ask the incoming member to get succession certificate. This way the society will not be involved in legal hassles and the third party will have to go to the court to stake his claim. The honourable court will either issue succession certificate or give order on how to solve the dispute. In the mean time nominee will take care of the flat and society will take action as and when the honourable court delivers the judgement.
**********************************************************************************
Q/MB/024/02.01.2018
Your reply regarding section 149 b {ii }says to pay 15 % or Rs2000 whichever less.👆
But in the bye laws it is not mentioned anything regarding Rs2000. 👆
Answer by Madhukarji
Glen ji,
It is very much there. The bye law reads as follows.
(ii) To pay honorarium to office-bearers of the society not exceeding 15 percent of the net profit to reward them for the sacrifice of their valuable time for the working of the society. However, the office bearer may take such amount of annual limit 15% or Rs. 2000/-, whichever is less.
Figure Rs 2000 was added in one of the amendments. Housing societies are non profit making entities so the figure was added specifically for housing societies. Even in balance sheet the profit and loss account is replaced by income and expenditure account as housing societies have no profits.
**********************************************************************************
Q/MB/025/02.01.2018
Sir,
I need your suggestion in account opening of HSG society. While opening HSG Soc. account do we need to keep any deposits for funds like Sinking & Repair funds as per by law. If yes, kindly let me know the minimum deposit Amt. To be deposited while opening such account
Answer by Madhukarji
Nitesh ji,
You need to open one account with district co operative bank for sinking fund fds and another account in a co operative bank nearest to your society. For opening the account deposit minimum amount as per the individual bank's rules. Deposit sinking fund at regular intervals in long term fd. Use the bank nearest to you for day to day operation and other fds.
**********************************************************************************
Q/MB/026/02.01.2018
Hi all
If we send 101 notice on 1 dec and the members does not accept the notice by registered post and notice comes back to the society office on 7th dec. Then should be immediately send the second notice of 101 or should have a gap of specific days in between? Gap of how many days?
Answer by Madhukarji
Dear Member,
I am enclosing a write up on 101 recovery procedure. Go through and you will get answers to your questions.
**********************************************************************************
Q/MB/027/02.01.2018
Madhukar JI,is live & license agreement to be compulsorily registered as per Co-op bye laws & maharastra rent control act, even if the agreement period is less thn 1 yr or for 11 months ? Also if the rent amt is 5000 rs ?
Also wht action can be initiated against society member in case tenant is kept by him by paying subletting charges but refusing to give registered agreement?
Answer by Madhukarji
Ashutosh ji,
A signature is a form of expressing one’s identity and also it is a representation of one’s consent, approval, or acknowledgment of facts. However, the same signature will not be enough to present documents as admissible evidence in court. It is this obstacle that makes it imperative to register a Leave and License Agreement at a Registrar office.
What are the consequences of not registering a Leave and License Agreement?
Section 55 of the Maharashtra Rent Control Act, 1999, mandates the registration of a Tenancy or Leave and License Agreement. Failing to adhere the same can result in imprisonment up to three months and a penalty amounting to Rs. 5000.
Apart from what the law says, in my opinion it is advisable to register every L&L agreement so that if the tenant creates any problem you can join hands with the society to evict him/her .
Society cannot do much if a member gives his/her flat on rent without submitting the registered agreement, but you should write to the member asking him/her to submit the registered document within 10 days otherwise the managing committee will be compelled to inform police about the the unauthorised person living in the society, will also inform sub registrar and income tax department about the unregistered deal. This warning might work. If not then lodge complaint with the police station about unauthorised family living in the society and it is a security threat. Police may or may not take any action. You can also drag the member to court but you have to think of time and money to be spent there. Income tax and sub registrar is mentioned only to pressurise the member to fall in line. If the member is thick skinned he/she still maynot submit the documents but you have evidence that you have tried every thing humanly possible.
**********************************************************************************
Q/MB/028/23.12.2017
Hi,
Request to share information on below query.
What should be the procedure society should follow if a member wants to let out their flat?
Answer by Madhukarji
Rahul ji,
Inform your society, atleast one week in advance, about your intention to give your flat on L&L. Give reason why you want to do this (give any reason like you want to stay near work place/want to stay with parents etc)
Through your agent Register your agreement,pay stamp duty, apply for police verification.
Once you get above agreement and police verification done, submit the copies along with form 11 ( to be filled by tenant) and form 27 (to be filled by you. It is an intimation about renting your flat)
Every month pay 10% extra as non occupancy charges.
You are done.
**********************************************************************************
Q/MB/029/23.12.2017
I have one question related society.
Suppose say society had declared that more then 2 year can't extend the agreement on lease for the same family.
And owner wants to extend the agreement with the same tenant for more 2 years. Is this make any cross action by society?
Answer by Madhukarji
Prasad ji,
Society has no jurisdiction over who the tenant is and how many years he can stay. As long as the member submits the L&L agreement and police report, pays monthly maintenance and 10% NOC regularly, there is no illegal activity in the flat the society cannot take objection to anything. Same tenant can continue to stay as long as he and the flat owner want.
**********************************************************************************
Q/MB/030/23.12.2017
Sir
We have some problem like one of our committee member is having three children third child was born after 2014
Sir he is the most active member in society and having good knowledge of bye laws and honest
Sir we wish to be in the committee member of the society
Kindly advice can we put this matter in GBM and get pass with the vote of voice or voting
Please advise
Answer by Madhukarji
Meisuriah ji,
If 3rd child is born after September 2001 then the disqualification is automatic, passing a resolution in gbm will not help as this rule is applicable in all organisations except private sector.
If this particular member is active and knowledgeable then what can be done is he should resign membership of MC and then MC can co opt him as expert director. He cannot contest elections to MC and he will not have voting right in MC. I have checked everywhere and noticed that disqualification rules are applicable to elected committee members only. You can use this loophole to get your man on MC but in a different capacity.
**********************************************************************************
Q/MB/031/03.01.2018
Sir, after AGM we received copy of Minutes (after 3 months), in AGM all agree to do Structure Audit and as per society low 8th months time period to fulfil that work which they decided was in AGM, sir how we come to know the work process and 2) question is 8th months time period is time of start work process time or complete that work process time.3)Sir can I get any written rules for this AGM Decision process time,
Answer by Madhukarji
Sweta ji,
Structural auditor and repair is briefly covered in bye law 75.
Societies aged between 15 and 30 years should carry out structural audit once in 5 years and those above 30 years should carry it out once in 3 years.
Most of the societies carry out structural audit only after they receive legal notice from municipal corporation. To put it in simple language , within one month of receiving the notice, society must carry out structural audit through empaneled structural engineer and also submit the report to the municipal corporation.
The audit report should also be tabled and discussed in general body meeting. Since structural audit and repair is made mandatory by law, the general body has no authority whatsoever to refuse to carry out the repairs.
IF the building owner /society does not complete the repairs /restorations, as per the directions in the Structural Audit Report within 6 month of submission of Audit Report, THEN they are also liable to be punished and the managing committed can be criminally prosecuted.
So the society has 7 months to complete structural audit and repairs and submit completion report to the concerned authorities. I do not have the act under which VVCMC issues notice for structural audit but if your society has received the notice, it will spell out the act and the punishment.
**********************************************************************************
Q/MB/031/10.01.2018
Gud Morng Madhukarji.
A friend of mine had bought a flat on resale when the society wasn't formed. The builder asked him & the seller for 1 lakh each for transfer to which they refused.
He states that presently the society is formed and an ad hoc committee has been formed and is administering the affairs but the handover from builder hasn't taken place.
He submitted the relevant transfer documents for membership but the Chairman says he cannot be made a member till the builder handover.
My query is, If the society is already formed, why can't the managing committee endorse his membership & ratify at the AGM.
Yr advice shall b appreciated.
Answer by Madhukarji
Vasant ji,
Your friend has done the right thing by refusing to pay transfer fee to the builder. Your friend should have written to the builder to incorporate his name in the original flat owners list. In the absence of above letter and refusal to pay any money to the builder, he most probably will show the seller's name in the list of flat owners.
Your friend need not worry because of this delay. His ownership is secured because
1. Purchase of Flat, from Builder is under the parameters of "Maharashtra Ownership Flat Act" and under the "Transfer of Property Act" and under the "Stamp Act" and under the "Registration Act".
2. When a agreement is registered AFTER compliance of the above Acts, then the "Title-Ownership", by "legal default", passes in the name of the Flat Purchaser, without any further reference to the Builder or the Society. Hence "NOC" of the Builder /Society is "NOT" required. 3. WHEN a Ownership-Flat, is sold (re-sale), then the agreement between the Old-Flat-Owner and the New Re-Flat-Purchaser, is done under the continuing parameters of the "Transfer of Property Act" and under the "Stamp Act" and under the "Registration Act".
4. Once the Flat Sale Agreement, is "duly" Executed & Registered (using point no. 3, above), the "Title-Ownership" of the Flat, by "legal default", automatically & irrevocably passes on to the New Flat-Purchaser.
The society is right in saying that they need builder handover before taking any action. Main thing the society wants is the list of flat owners as per the builder, Because if seller's name appears as flat owner then society will demand transfer premium and all relevant documents for transfer of shares.
**********************************************************************************
Q/MB/032/10.01.2018
Respected Sir
One of the shopkeepers is requested for resign from society membership
Please advise that
1) can any member request for resign from society membership
2) regarding recovery of maintenance like
Sinking funds, repair funds etc or not
3) Society rights
Answer by Madhukarji
Meisuriah ji,
What you are talking about is expulsion of housing society member. Many people may not be aware of this but it is an extreme step that can be taken against member who is not following the housing society rules and such member can be expelled from the society. Following are full details. Expulsion of a Member in Co-Operative Housing Society.
Expulsion of a Member in a Co-operative Housing Society is an extreme measure and most Societies consider it their last resort. When everything else fails to set things right, expulsion of the concerned Member is considered the only way out.
If extreme need arises for expulsion of a Member, the Law and Procedure be strictly followed as laid down in Section 35 of Maharashtra Co-operative Societies Act 1960, Rules 28, 29 of the Maharashtra Co-operative Societies Rule 1961 read with Bye-laws No.51 to 56 of Model Bye-laws.
A Housing Society can use this to their advantage by threatening members to pay up their dues. A provisional managing committee too has these powers.
Here is what the Society Bye – Laws say about the expulsion of a member from the society. Grounds of Expulsion of a Member:-
A Member may be expelled from the Membership of the Society, if such Member:
* The acts of the Member are detrimental to the interest or proper working of the Society
* Has persistently failed to pay the charges, dues to the Society
* Has willfully deceived the Society by giving false information,
* Has used his flat for immoral purposes or misused it for illegal purposes habitually,
* Has been in habit of committing breaches of any of the provisions of the Bye-Laws of the Society, which, in the opinion of the Committee are of serious nature,
* Has furnished false information or omitted to furnish the material information to the Registering Authority at the time of Registration of the Society.
A Society may, by Resolution passed [by a majority of not less than three-fourths] of the Members entitled to vote who are present at a General Body Meeting held for the purpose, expel a Member for acts ‘which are detrimental to the interest or proper working of the Society’. No Resolution shall be valid, unless the Member concerned is given an opportunity of representing his case to the General Body and no Resolution shall be effective unless it is approved by the Registrar.
Effect of Expulsion on Membership of the Society:-
The Member, duly expelled from Membership of the Society, shall cease to be the Member of the Society, with effect from the date on which the Resolution of expulsion from the Membership of the Society is approved by the Registrar of Co-op. Societies.
Handing Over of Flat:
The Member who has been duly expelled from the Membership of the Society, shall not be entitled to continue in occupation of his flat and he shall arrange to hand over peaceful and vacant possession of his flat to the Secretary of the Society within such period as the Managing Committee may allow. On his failure to do so, he shall be liable to be evicted from his flat.
Readmission to Membership:-
No Member of the Society, who has been expelled from the membership, shall be eligible for readmission to membership in the Society, until expiry of the period of one year from the date of his expulsion, provided that on the recommendation of the General Body of the Society, the expelled Member may be readmitted to its membership, as a special case before the expiry of the period of one year with the prior permission of the Registrar of Co-operative Societies.
Considering that the basic duty of a Cooperative Housing Society Member is to safeguard the interests of the Society and any Member whose actions are detrimental to the interests of the Society can be expelled.
The process of expulsion is a fair one, where both parties i.e. the Managing Committee and the Member likely to be affected, are given an opportunity to express their points of view. If the Managing Committee of a Cooperative Housing Society decides to expel a Member from the membership of the Society, a Resolution needs to be passed to that effect; the topic must be included in the Agenda of the next General Meeting.
The Member who is likely to be affected must be given a minimum one-month notice to remain present at the General Meeting or then make a written submission to Show-Cause why he should not be expelled. Only then can the General Body proceed to consider the Resolution for expulsion of the Member.
This Resolution, however, needs to be supported by not less than 3/4 of the Members entitled to vote and present at the General Meeting and once the Resolution is passed, it needs to be forwarded to the Registering Authority for approval.
While considering the Resolution, the Registrar examines whether the Society has complied with the necessary formalities. And then, whatever the Registrar’s decision – Approval or Refusal – is communicated to the Member and the Cooperative Housing Society.
Expulsion of the Member is the severest form of punishment and it often implies the Member’s way out from the Cooperative Housing Society for good.
**********************************************************************************
Q/MB/033/12.01.2018
Good Morning Sir,
A commite member resigned giving health reason. The co-owner of that flat wants to attend the committee meeting instead. Please advise
Answer by Madhukarji
Girish ji,
Since the co owner is a stake holder in the property, he can submit form 7 and form 10A to the society. Form 7 is application for associate membership and form 10A is authority given by member that in his absence the associate member can attend meetings and participate in elections .
Since the member resigned from committee his place on the managing committee will be filled only by electing a member Through election conducted by SCEA. The associate member can start attending meetings as ordinary member.
**********************************************************************************
Q/MB/034/12.01.2018
Sir please advice
How to take 21% interest ?
Rule passed in last agm that After 50 days member has to pay late payment interest of 21% on maintenance amount . But some of the members denied to pay they are saying it should be yearly means 21% /12. Please suggest .
*****
Answer by Madhukarji
Surve ji,
Yes 21% interest is per annum. If a member does not pay Rs 100 for 60 days then the interest to be charged is 60/365x21=Rs 3.45
Amount looks small but 21% interest rate is very high.
**********************************************************************************
Q/MB/035/12.01.2018
Can tuition/Classes conducted in any society by the owner????
Answer by Madhukarji
Nithya ji,
All activities are not Commercial activities
Activities such as yoga class, tuition class or service of Chartered Accountant, Doctor, lawyers are confused as commercial activities and this ends in raising complaints against apartment owners in association meeting. A commercial activity involves activity relating to purchase and sale of goods. According to source, business such as profession, service and teaching certain arts are permitted by apartment owners and association. The work done by professionals involves element of service and not an activity relating to purchase and sale of goods.
Case Law
•Yoga classes: In the case of Pant Nagar Anandlok CHS Ltd., at Ghatkopar, Mumbai, (Appeal No. 550 of 1985 decided on 24-11-1986 decided by the MSC Appellate Court) it was decided that carrying out activities like conducting yoga classes in a residential flat does not constitute breach of bye-laws of a Co-op Housing Society. The judge said, “The professional activity of teaching certain arts would not in itself become commercial even though some charges are levied in giving some performance.”
So your society should not object to your tution classes but at the same time you should ensure that other members are not put to any inconveniences. Better still, meet MC members and assure them that classes will be conducted in a systematic way without troubling anybody.
**********************************************************************************
Q/MB/036/15.01.2018
Madhukarji,
Need your valuable advice / guidance pertaining to Issue related to Shop.
Can materials / work like :
1. full time masala grinding, preparation and sealing and storing in packets in Shops and adjacent flats
2. Storage of powder of false ceiling in gunny bags
3. Storage of Tiles in shop and adjacent to flats.
Referred Flat has two access one from inside the complex (not being utilised) and other from inside the shops.
Can this activities be allowed legally in a residential complex.
Answer by Madhukarji
Sudhir ji,
If yours is a residential cum commercial society then the shop owners can store the materials mentioned by you , provided they have the necessary license from shops and establishment department.
Joining two units whether shops or flats cannot be carried out without permission from municipal authority. Also storing material in flats will be illegal as it will disturb other members and it is also a security risk.
I am not sure about the section applicable in Vasai Virar but following is the rule in Mumbai.
"Under section 347 (c) of the BMC Act, no alteration can be made to a residential building , plans for which have been approved by the corporation. Once a plan is sanctioned and flats built, any change—be it setting up a partition, demolishing walls, merging flats or using a residential apartment flat as a warehouse—require the permission of the civic body."
You need to talk to the member about this problem. It is fine if he is co operative otherwise society can lodge a complaint with the local municipal authority.
**********************************************************************************
Q/MB/037/15.01.2018
As per Form 5 , to be termed as an Associate member , my name needs to be inserted in the share certificate but since my name is already on the share certificate, do I still have to fill up and submit this Form with a fee of Rs. 100/- ?
Answer by Madhukarji
Clifford ji,
Form to be filled for associate membership is form no 7. If you bought the flat with the original member, your name appears as joint holder in the original sale agreement with the builder, and your name appears 2nd on the share certificate then you are already a member of the society and you are treated as associate member and need not pay Rs 100 with form 7 (I am assuming that you have given a joint declaration in writing to the society that the person whose name stands first in the share certificate shall have the right to vote and all the liabilities will be borne jointly and severally by both as provided in the Act, rules and bye-laws and have paid Rs 100 entrance fee) In the absence of this procedure you will have to pay Rs 100.
If your name was added in the share certificate at a later stage, either through sale deed or gift deed or any other way then you become a co owner and need to pay Rs 100 along with form 7, to become associate member. In any case if in the absence of the original member, the associate member wants to participate in society administration then noc from original member in form 10A also should be submitted to the society .
**********************************************************************************
Q/MB/038/13.01.2018
If I have completed the formalities of an Associate member , and both members attend the meeting , am I allowed to speak in the presence of the 1st member?
Answer by Madhukarji
Donna ji,
If you are associate member then you can attend meetings if the member whose name appears first on the share certificate is not attending the meeting. So only one of you can attend the meeting not both.
**********************************************************************************
Q/MB/039/13.01.2018
.
One of the member has sold his flat and has registered the property. He has sent all papers of registered transfer. Recd. a letter from him and also from the buyer to issue an N OC to Bassein CCBank for a jag loan and also answer a questionnaire. They have not submitted all transfer related forms and original transfer form. How to proceed in this case?
Also pl advise about transfer fees and transfer premium. How much to demand. Kindly advise and oblige. Thanks and regards.
Answer by Madhukarji
Narayanan ji,
The member has submitted these papers to the society so that the incoming member will get noc for bank loan, which in turn means that he will get the pending payment from the buyer's bank. If you still want to be very sure then ask the buyer to get a letter from the bank to the society requesting for noc and answers to questionnaire, also ensure that there are no outstanding dues to be paid to the society by the outgoing member and after that issue the noc.
Incoming member will pay Rs 100+Rs500 as membership fee and transfer fee. The outgoing member will pay maximum Rs 25000 (or amount as decided in general body) as transfer premium.
**********************************************************************************
Q/MB/040/15.01.2018
Hello, Can anyone help on the below query please. ?
Can we pay society security service charges without GST.
Our Contractor is ready to give bill in both way.
If we take bill without
GST is that an issue ?
Please advice.
Thanks in advance 🙏
Answer by Madhukarji
Hiren ji,
Billing cannot be in two formats. Either he will charge or he will not charge GST. It can't be as per what customer wants. Obviously he is doing it illegally.
Security guards provider is chargeable to 18% GST. If he doesn't charge you then the society may have to deduct from his bill and pay the GST under reverse service mechanism, which will be a headache. Consult your CA to reconfirm this and pay gst accordingly.
**********************************************************************************
Q/MB/041/24.01.2018
Sir
Please clarify is this the correct procedure?
There are some societies where even after completing the above said procedures , asking for succession certificate/ Hiership certificate etc though the 1 st owner as per the agreement is still alive and the share certificate stands in his name . Due to the death of joint owner the society has asked to submit release deed , affidavit, indemnity bond , paper notice etc from the bonafied member All the procedure completed as per their instructions.
Now they say that that is not enough to deal with the property.
As I regularly go through your updates /FAQ'S I hope the clarification given by you all are based on the rules laid down by the legal authority for such type of society matters.
Please clarify
Answer by Madhukarji
Vijay ji,
You can study section 30 of MCs act 1960, rule xxiv of MCs rules 1961 and bye laws 31 to 40 to get insight into nomination, transfer and transmission of flat.
In case of joint ownership, both can Separately file their own nomination form and, death of joint owner is treated separately based on his nomination form for his share in the property it has nothing to do with 1st member.
Transfer or transmission decision is taken by the society MC and to be extra cautious, sometimes, they may ask for more documents.
In case of any dispute with the society or doubts in your mind it is my opinion that a lawyer's services will be absolutely essential. They are in a better position to interpret law to your advantage.
**********************************************************************************
Q/MB/042/16.01.2018
.
साहेब सोसाइटी सिंकिंग फण्ड लिफ्ट खरीदी करता वापर करु शकतात के नाही??
मला उत्तर दया।
Answer by Madhukarji
Vadan ji,
With relaxation of rules regarding use of sinking fund, it can now be utilized for any major maintenance work. So answer is yes you can utilize sinking fund for buying new lift.
**********************************************************************************
Q/MB/043/23.01.2018
Sir,one of the flat owner sell his flat in the mnth of Dec 2017 & now New owner of the said flat demanding NOC (For Bank Loan)frm our society who takes handover soc frm builder in Jan 2018......sellers dues towards builder r also pending....pls guide how to tackle .....pls advise🙏
Answer by Madhukarji
Benke ji,
Handover by builder to society is very important. It contains list of flat owners. Builder will surely show the seller as the flat owner because of money owed to him by seller.
Society should inform the buyer that NOC for bank loan can be issued only after builder handover and NOC from the builder. This NOC from builder will ensure that the seller and builder don't have any other agreement because of dues. After getting these documents the buyer can apply for membership of society by additionally submitting sales deed, necessary forms and cheques for Rs 100,Rs 500 and Rs 25000.
Since the buyer has applied for membership and NOC for loan, he will have to submit these documents to the society.
He can get bank NOC after completing above procedure.
**********************************************************************************
Q/MB/043/24.01.2018
Good morning Sir,
Question..
Sir our society has one set amount for water charges per flat.. but is being observed few flat has say about 2-4 members and some like 15-16 per flat.. so we understand there water consumption will be high..
Is any law were we can charge higher members flat extra for there water consumption...
thank you..
Answer by Madhukarji
Sheetal ji,
Water charges are either per flat or per number of water inlets to the house. I have not seen per head water charges.
**********************************************************************************
Q/MB/044/16.01.2018
Dear Mr Madhukarji.
Thanks for the info. However I doubt the correctness of old share certificate issued earlier. In our first share certificate it is printed authorised share capital amount 2000000/-divided by 4000 shares each of rs. 50/- . But as per balance sheet share capital is RS 50000/- for 200 units @rs50 each for 5 shares
Now it will be 10shares @50/- each total 500 x200 units equal to 100000/- am I right
Answer by Madhukarji
Ronald ji.
Authorised share capital can be much higher than paid up capital. These figures were decided at the time of society registration. There is no issue If your Authorised share capital is Rs 2000000/- and paid up is Rs 50000/- for 200 units. Only paid up capital will reflect in the balance sheet. Now as you rightly said the paid up capital is increased to Rs 100000 for 200 units at 10 shares of Rs 50 each/unit. Next balance sheet will reflect this figure.
So your authorised share capital remains Rs 2000000 and paid up capital becomes Rs 100000 .
I am enclosing appendix 1, share certificate of housing society. You will notice that all the figures are to be filled by hand and that is how we should keep it. These are standard share certificates available in good stationary store.
**********************************************************************************
Q/MB/045/15.01.2018
Sir,
Have some query, pls guide us.
A member in our society has requested to convert his existing windows to French window including kitchen window.
Can v allow this request ?
Pls reply.
Answer by Madhukarji
Mukesh ji,
Yes, you can permit it provided the work will not tamper with any beams or columns.
**********************************************************************************
Q/MB/046/15.01.2018
Dear sir,
While carrying out major repairs / restoration work of Society buildings, Public Liability insurance is mandatory along with Workmen’s Compensation insurance, please suggest.
Answer by Madhukarji
Sameer ji,
Yes, it is necessary for the contractor to take these insurance policies and not the society. Society should only ask for the copies of policies to check the validity.
**********************************************************************************
Q/MB/047/15.01.2018
Dear sir ,
Landlord letting out shop for veg.chinese restaurant, should society ask for any - municipal or Fda or any other licence copy ?
Answer by Madhukarji
Jeevan ji,
Yes , apart from rent agreement and police verification report the society should ask for copy of license issued by shops and establishment department of local municipal authority and, due to safety reasons, copy of clearance from fire officer.
**********************************************************************************
Q/MB/048/19.01.2018
In the society flat is owned jointly by husband and wife Husband dies without submitting nomination form to society can wife be total owner of the flat or to do what is procedure to follow
Answer by Madhukarji
Lewis ji,
If the deceased has not left behind nomination or will, his property will be divided equally among his wife, children and mother. So to transfer the flat in wife's name, she will need relinquishment deeds from her mother in law and adult children. If children are minor then wife is their natural guardian and no deed required from them.
**********************************************************************************
Q/MB/049/19.01.2018
Sir, In the society flat is owned jointly by husband and wife and during the filling up nomination form, what is the procedure to fill the same, the wife should be co-owner or declared as first nominee, because both ( Husband & Wife) names are already written in the owner's column. Pls. reply sir as soon ad possible....
Answer by Madhukarji
Ravi ji,
If their names appear on the sale agreement as well as on the share certificate then they are joint owners and each one can file a separate nomination and nominate anybody they want.
**********************************************************************************
Q/MB/050/21.01.2018
Respected sirs,
Need your help in d following case..
Can any of the society member ask information / documents under Right To Information Act from the Society Committee such as audit report, monthly expenses, vendor appointment letter, society bank passbook prints etc. Also can he ask personal information of committee members such as how any children member hv and their DOB etc. Is it mandatory for committee to provide such type of information to individual member.
As all the account related documents ,audit report was already approved in AGM and copy of the same along with MoM of society was already distributed to all members.
Pls note that the said member has done illegal work in his flat keeping society in dark and society has issued him a notice.. In response to that notice he is asking the above information under the right to information act.. also Pls let me know, does any of the committee member comes under the definition of 'information officer'. He has addressed the letter to ' माहिती अधिकारी' of the society.
Kindly reply.
Answer by Madhukarji
Siddhesh ji,
Yes co operative housing societies are covered by RTI, since housing societies are private bodies so any information sought from housing society must be directed to them through DDR.
Following are the details for you.
With the enactment of the 97th amendment to the Constitution of India and its inclusion in Article 19 of the Constitution, formation of co-operative societies has become one of the fundamental rights of an Indian citizen. Besides, they have also been given the status of local self-government like rural and urban municipal bodies in Part 9 of the Constitution. Cooperative societies now have thus come under the ambit of the Right to Information Act, 2005 and under the scope of “public authority” defined under Section 2 (h) of the RTI Act, 2005.
Section 2(f) of Right to Information Act, 2005 states that " information" means any material in any form, including records, documents, memos, e- mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accessed by a public authority under any other law for the time being in force. As per Section 2(f) information can be accessed by a Public Authority from a private body. Hence in this scenario, co-operative housing society is a private body and the Registrar of Co-operative Societies is a public authority.
Co-operative Housing Societies are not directly covered under Right to Information Act, 2005. But, as per section 2 (f), stated hereinabove they are indirectly covered through the office of Deputy Registrar of Co-operative Societies. The same can be done by making an RTI application to Deputy Registrar of the ward in the format prescribed under Maharashtra RTI Rules “Annexure A” with Rs 10/- court fee stamp or Indian Postal Order.
The Deputy Registrar, using his powers under Section 77 and Section 78 of the Maharashtra Co-operative Societies Act, 1960 will forward this application to the Chairman/ Secretary of the society and the said Chairman/ Secretary will have to provide information to the Registrar, who will in turn pass on the information to the concerned member applicant. However in some cases, the Registrar may direct the Chairman/ Secretary to provide required information directly to the concerned member applicant. If the information is not provided within 30 days, the concerned member can invoke two legal mechanisms by filing an appeal with the First Appellate Authority i.e. deputy registrar herein under section 19 (1) of RTI Act, 2005 or by invoking Section 148A of MCS Act, 1960 under the context of Contempt of Co-operative Courts.
**********************************************************************************
Q/MB/051/21.01.2018
Can society impose penalty to members who do not submit L&L agreement in Society on time and how much?
Answer by Madhukarji
Lokesh ji,
These penalties are to be decided by the society and should be approved by the general body. In my opinion the penalty should not be more than Rs 5000/-. Even registrar cannot impose penalty more than Rs 5000/- in a year on a society who fails to comply with statutory requirements.
**********************************************************************************
Q/MB/052/21.01.2018
Secretary has two flats in the building & taken portion of one flat into the other after the OC. Permission from BMC/ Registrar is not taken. Now
she wants the society to give a letter to them as to the areas of two flats. Is Society in a position to certify the areas of their flats ?
When society refused they are blackmailing the members saying that they have covered their duct areas which is illegal & they will go & complain to the BMC.
Please tell me what is the solution.
Answer by Madhukarji
Uma ji,
Society cannot certify area of flat other than what is on the approved plan, submitted by builder to BMC and, is also attached to conveyance deed. Altered flat is illegal.
Altering a flat is a serious offence compared to covering duct. You can inform the secretary that the members will also complain against her to BMC about joining of flats/altering area. If BMC staff visits your place they will remove illegal construction and also take legal action against the secretary.
Ask her not to threaten you, if a member complains against her Action will be taken against her under following BMC rules.
As per Section 342 of BMC Act, 1988 (amended till date), The "tenantable repairs" shall NOT include the following:
• Replacing or removal of any structure members of load bearing walls.
• Change in horizontal or vertical existing dimensions of the structure.
• Lowering of plinth, foundations or floors.
• Addition or extension of mezzanine floor or loft.
• Flattening of roof or repairing roof with different material
• No merger of tenancies by removal or opening of any walls in between two or more tenancies.
• Changing location of bathroom/WC/kitchen sink, in a way that can cause leakage to residents below.
• Increasing the internal height of the structure.
BMC Notices
Notice issued by BMC under Section 354 is a STOP Work Notice if it feels ongoing work is unlawful. If there is unauthorised construction then BMC can issue a Show-Cause Notice under Section 351. This is NOT a Stop Work Notice – it is issued when work is completed and persons are utilizing the said premises. If the officer is not satisfied with the documents produced, then he has to give them an opportunity to revert the property back to the original legal status after which, the BMC can initiate demolition under Section 488.
**********************************************************************************
Q/MB/053/21.01.2018
Sir, mein J27-31 society, global city Virar se hu. Kal members ne chairman aur secretary ko chairman ke naam letter diya. Chairman aur secretary ne letter acknowledge karke dene se mana kiya. Chairman samne rahte hue bhi letter watchman Se acknowledge karake diye. Sir ye kitna Sahi hai. Letter niche post kar raha hu.
Answer by Madhukarji
Anil ji,
It looks like, yours is a comparatively new society and the MC members are not well versed with bye laws.
Your chairman is not happy with your letter so he has sent acknowledgement through watchman. It is ok as long as you have the acknowledgement. He should know that acknowledgement of letter does not mean acceptance of the contents.
Your AGM was on 24th Sept 2017, and you have raised your objections after almost 5 months. Is this delay because draft minutes were not circulated among members?
Bye law 109 says
"Society MC should finalize GB meeting minutes within 3 months of the date of the meeting & Circulate it to all society members within a 15 day from the date of approval in MC meeting."
If minutes were not circulated among members then every resolution passed in that meeting can be questioned. On the other hand if draft minutes were circulated and you did not raise objections within 15 days of receiving them, then MC can go ahead and finalise the minutes, obviously you can't expect them to wait indefinitely for finalisation of minutes.
Check above point and also make a suggestion to video shoot the general body meetings so that objections raised can be cross checked.
**********************************************************************************
Q/MB/054/21.01.2018
Hello sir, i have one query regarding NOC.... I m committee member of the society so one my flat owner need NOC for loan transfer purpose but that owner having Home loan in other bank but now flat owner needs to transfer the loan from other bank so that purpose flat owner wants NOC ...so kindly guide me what is the process and which documents should required for society ....
Answer by Madhukarji
Sudir ji,
Seller of the flat should collect from his bank and give to society copy of loan foreclosure (how much loan is balance) and list of documents with the bank(regarding the flat) .This is also considered as NOC from his bank for transfer of loan .He should also submit copy of agreement to sale deed(it indicates value of the flat and other financial conditions).
The buyer of the flat should write a letter to the society about his intention to buy the subject flat with bank loan, he should also enclose a letter from his bank to the society requesting for NOC to transfer loan from sellers bank to buyers bank.
Society can now issue provisional NOC for transfer of loan from one bank to another (or from seller to buyer) and, final NOC can be given after society gets letter from sellers bank informing about closure of sellers loan and transfer of the same to buyer's bank. This way there will be only one NOC issued by society for mortgage /loan against the flat.
You should also consult your CA to ensure that you are taking the right step.
**********************************************************************************
Q/MB/055/27.02.2018
Dear Sir's
Mother (First name) & Son (Second name) is the owner of the flat and residing in the flat. Now Mother wants to gift her share of the flat to the Co-owner (Son) so that he become the sole owner of the flat. Loan has been availed by the Co-owner. Share Certificate is lying with the Society. Further , mother has one more son (to our knowledge) who visits them but not residing with them.
Should Society insist on the following prior to affecting the name change in the ownership and in the Share Certificate :
1. Gift deed to be duly registered and not just on stamp paper.
2. Clearance from Bank to be obtained for ownership changes.
3. NOC from blood relations i.e. Brother / Sister.
4. Whether the changes to be noted in the monthly management committee meeting and in AGM too as henceforth Son would be the sole owner and authorised to attend Annual General Meetings hereon.
Kindly advise / guide / correct steps to be taken to avoid legal complications and anything amiss from our side in this matter.
Answer by Madhukarji
Documents listed by you are correct but in my opinion take following precautions
1) Gift deed must be registered and receipts for registration fee paid and stamp duty paid should be attached with the deed
2) Apart from other forms the incoming member should indemnity society for, from and against any law suit/expenses that may arise due to this transfer.
3)If Mother has purchased the flat herself then she is free to gift it to anybody without noc from blood relatives. But if they are willing to give you that noc from her second son then take it for society records.
4) if son taken loan then noc from bank is necessary. I am only wondering how the share certificate is already with the society.
5) Decision on transfer can be taken in monthly meeting and decision ratified in next AGM.
DISCLAIMER: I am providing this information as a public service. I try to make it accurate as of the date noted in the materials. Sometimes the laws change. I cannot promise that this information is always up-to-date and correct. You should consult your lawyer or contact your legal advisers and get into greater detail before taking any action.
**********************************************************************************
Q/MB/056/27.02.2018
Is there any rule according to bylaw, Sir can secretary regularly move out of india for his officials for more than 1 month per visit
Answer by
Madhukar
Sonali ji,
There is no bye law which prevents any office bearer from staying away from society for longer period of time. If Secretary is away then Chairman should take over Secretary's responsibilities.
However bye law 118 a(ii) says that a committee member is automatically disqualified if he/she remains absent for 3 consecutive MC meetings.
**********************************************************************************
Q/MB/057/27.02.2018
Dear sir, my query is regarding Festival fund. Hsg society wants to create Festival fund for various cultural activities. It wants to collect some amount on monthly basis from members and wants to include the same in monthly maintenance bill under separate head as Festival fund. Can society can do so after passing resolution? Whether members can voluntary contribute to this fund over and above their monthly contribution?
****
Answer by
Madhukar
Umesh ji,
As per bye law 64 (xvii) society can collect any other charges in monthly collection from members, so you can consider festival fund collection under this heading and get the resolution passed in the general body meeting.
Also as per bye law 7e, voluntary donations can be accepted from members and bye law 12 a(vi) says that if this donation is for specific purpose then it can be utilised accordingly instead of adding it to reserve fund. So answer to both your questions is yes.
**********************************************************************************
Q/MB/058/27.02.2018
One question that in residential flat 2 owners are there, can both owner file nomination?? Separately??
Answer by
Madhukar
Vadan ji,
Yes joint owners can file nomination separately and in my opinion this is what they should do. Nomination comes into picture only on death of the member. Joint nomination will come into effect only after death of both the members which may create legal problems after death of one member.
Q/MB/058/27.02.2018
We are redeveloped society and some additional members are there. My query is that we are undertaking process of issue of new share certificate and can we issue it directly in the name of current owner or it has to be done in accordance with chain of agreement
****
Answer by
Madhukar
Rahul ji,
In my opinion ,For new members ( additional flats sold by builder) the share certificate will be in the name of the additional member, for old members the chain of transfers should be recorded. Share certificate in housing society is acceptable document to show chain of ownership as per the society's records.
**********************************************************************************
Q/MB/059/27.02.2018
If the jointly flat owner first name appear in share certificate dead after that the second owner want to sell the flat
What is the procedure?
Which papers required by society
Kindly advice
****
Answer by
Madhukar
Ramesh ji,
Before selling the the flat, the joint holder should become a rightful owner and member of the society. You have to see if the first owner has filed nomination papers with the society.
You have not mentioned who the joint owner is. I presume it to be his wife.
Transfer of flat in such cases is covered by bye laws 33 and 34.
If there is a nominee or nominees and they along with other blood relatives (husband, wife, children, mother, wife of deceased son) have no objection and are willing to relinquish their right in the property in favour of the wife then she should apply to the society to become some member of that flat, attach all relinquishment deeds, indemnity bond, death certificate, original share certificate and necessary society forms. She can sell the flat only after society transfers the flat in her name.
If there is no nomination then apart from above procedure, society will also advertise in two local newspapers, inviting any claim on the property ( this is at intending member's cost). If there are no other claims then society will transfer the flat in her name. If there is any doubt in the minds of society committee members or there are disputes among the relatives then MC will ask her to obtain succession certificate ( bye law 34). After completing this procedure, she will become rightful owner of the flat and only then she can sell the flat.
DISCLAIMER: I am providing this information as a public service. I try to make it accurate as of the date noted in the materials. Sometimes the laws change. I cannot promise that this information is always up-to-date and correct. You should consult your lawyer or contact your legal advisers and get into greater detail before taking any action.
**********************************************************************************