(.. 21 ..)
APARTMENT[1]
(Ss. 3 (a) 4 and 5)
QUESTION BANK
Q.1 Define ‘Apartment’ and explain various contents of Bye-laws annexed to the Deed of declaration.
Q.2 Define Apartment and explain provisions as to state and ownership of apartments.
Q.3. Define Apartment and state the difference between ‘flat’ and ‘apartment’.
SYNOPSIS
- Introduction of Maharashtra Apartment Ownership Act, 1970-
- Provisions as to Apartment-
1) Definition of ‘Apartment’ (S. 3 (a))-
2) Status of Apartment (S. 4)-
3) Ownership of Apartments (S. 5)-
4) Difference between ‘Flat’ and ‘Apartment’-
- i) Definitions-
- ii) Title of the property-
iii) Formation of Co-operative society or company-
- iv) Transfer of property-
I. Introduction of Maharashtra Apartment Ownership Act, 1970:-
The object of the Maharashtra Apartment Ownership Act, 1970 (henceforth for the sake of brevity called ‘the Act’) is to make provisions as to the ownership of an individual apartment in a building and to make such an apartment heritable and transferable property.
In fact, two Acts exist in the same field of flats and apartments. One Act is the Maharashtra Ownership Flats (Regulation of the Promotion of construction, sale, management and Transfer) Act. 1963, popularly called “MOFA”. As per MOFA, the builder has to form a Cooperative housing society of flat owners and hand over possession and ownership of the scheme to such society. According to the provisions of MOFA, it is incumbent on the builder to hand over the possession and ownership to society. However, the ownership of society gave undue advantages to the chairman and other office bearers of the society over actual flat owners. The chairman and other office bearers have no objection to certificates for transfer of the flat, for modification in the flat, for loan, etc., mandatory; therefore, they usually do corruption and adopt malpractices to get a flat for themselves or their near relatives. Thus, these provisions proved to be inadequate and insufficient for the protection of the interests of the true owner.
The Maharashtra Apartment Ownership Act of 1970 was passed by the Maharashtra legislature to avoid this pathetic situation of actual flat owners and give them complete possession and ownership (title) of the apartment.
Moreover, this Act applies only to property, the sole owner or all of the owners who submit the same to the provisions of this Act by duly executing and registering a declaration provided hereunder.
II. Provisions as to Apartment:-
In fact, the popular term in multi-storied buildings is ‘flat’, however, the same concept of the flat is treated as “Apartment’ under the Act, with only the difference in nature of the title. According to MOFA, the title of the whole scheme of construction is with the Society. In contrast, according to the provisions of the Act, the title of the individual apartment lies with the real owner or purchaser.
1) Definition of ‘Apartment’ (S. 3 (a)):-
‘Apartment’ means:-
“ (i) a part of the property, intended for any type of independent use, including one or more rooms or enclosed spaces located on one or more floors (or part or parts thereof) in a building,
(ii) intended to be used for residence, office, the practice of any profession, or for carrying on any occupation, trade or business or for any other type of independent use and
(iii) with a direct exit to a public street, road or highway or to a common area leading to such street, road or highway”.
The Act further defines ‘Building’ means a building containing five or more apartments or two or more buildings, each containing two or more apartments, with a total of five or more apartments for all such buildings, and comprising a part of the property (S. 3 (e)).
2) Status of Apartment (S. 4):-
Each apartment, together with its undivided interest in the common areas and facilities, appurtenant to such apartment shall, for all purposes, constitute heritable and transferable immovable property within the meaning of any law for the time being in force in the state.
An apartment owner may transfer his own apartment and the percentage of undivided interest in the common areas and facilities appurtenant to such apartment by way of sale, mortgage, lease, gift, exchange or in any of the manners whatsoever to the same extent and subject to the same rights, privileges, obligations, liabilities, investigations, legal proceedings, remedies and to penalty, forfeiture and punishment as any other immoveable property, or make a bequest of the same under the law applicable to the transfer and succession of immovable property.
In other words, S. 4 makes an apartment with its undivided interest in the common areas and facilities a heritable and transferable immovable property. For all purposes, the apartment would be treated as any other immovable property of complete ownership. Therefore, it has all the attributes of a complete marketable property without any limitations, unlike in flats under MOFA.
3) Ownership of Apartments (S. 5):-
“Apartment Owner” means the person or persons:-
(i) owning an apartment, and
(ii) undivided interest in the common areas and
(iii) facilities in the percentage specified and established in the Declaration (S. 2 (b))[2].
Each apartment owner shall be entitled to exclusive ownership and possession of his apartment. Such ownership and declaration are in accordance with the Declaration executed and registered as required by S. 2 of the Act. It is incumbent on each apartment owner to execute a Deed of Apartment in relation to his apartment in the manner prescribed for the purpose (S. 5).
4) Difference between ‘Flat’ and ‘Apartment’:-
In fact, the popular term in multi-storied buildings is ‘flat’, however, the same concept of the flat is treated as “Apartment’ under the Act, with only the difference in nature of the title.
We will discuss some differences between these two concepts as follows:-
i) Definitions:-
The concept of ‘flat’ is defined under the MOFA, whereas the concept of ‘apartment’ is defined under the Maharashtra Apartment Ownership Act 1970.
- 2 (a-1) of the MOFA defines ‘Flat’ means-
(i) a separate and self-contained set of premises,
(ii) used or intended to be used for residence, office, showroom or shop or godown or for carrying on any industry or business and includes a garage, the premises forming part of a building and includes an apartment.
Explanation:- Notwithstanding that provision is made for sanitary, washing, bathing or other conveniences as common to two or more sets of premises, the premises shall be deemed to be separate and self-contained.
‘Flat’ lacks the element of ownership. In fact, ownership of the flat lies with society. However, the apartment is exclusively owned and possessed by the apartment owner, unlike the flat owner.
ii) Title of the property:-
As per MOFA, the property belongs to the promoter (builder or owner) till it is conveyed to the Co-operative society or Company or association of flat owners. Thus, the individual purchaser of the flat does not become the owner, unlike the Apartments Act.
iii) Formation of a Cooperative society or company:-
By the provisions of MOFA, it is incumbent on the promoter to form a cooperative society or company of flat purchasers, whereas no such procedure is required under the Apartment Act.
iv) Transfer of property:-
Flat under MOFA cannot be transferred without permission of the cooperative society of flat purchasers, whereas under the Apartment Act, no such permission is required. It is because the title of a flat remains with the society, whereas, under the Apartment Act, the clear and marketable title is transferred to the purchaser.
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[1] सदनिका [किसी इमारत मे काम्ररोका समूह (फलँट)]
[2] “सदनिका धारक” का अर्थ है व्यक्ति या व्यक्ति जो
(i) एक अपार्टमेंट के मालिक हैं, और
(ii) जिसका सार्वजनिक क्षेत्रों में अविभाजित हित और
(iii) जिसको घोषणा में निर्दिष्ट और स्थापित प्रतिशत में सुविधाएं प्राप्त है।