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DEED OF APARTMENT, DEED OF DECLARATION, BY LAWS

Table of Contents

(Ss. 11, 13 and 16)

QUESTION BANK

Q.1 Define ‘Apartment’ and explain various contents of Bye-laws annexed to the Deed of declaration.

Q.2 Explain the contents of ‘Deed of Apartment’ and state the effect of registration of Deed of apartment.

Short Notes

Deed of Apartment.

SYNOPSIS

Deed of Declaration
Contents of Declaration (S. 11)-

II Declarations, Deeds of Apartments and copies of floor plans to be registered (S. 13)-

Deed of Apartments-

Types of Deed of Apartments-

First Deed of Apartment-

Second or subsequent types of Deed of Apartment-

The second or subsequent types of Deed of Apartment shall include (S.12),

Effect of declaration and its registration –

1) Act becomes binding (S. 24)-

2) Action by Board (S. 23)-

3) Exemption of stamp duty (S. 24 A)-

Bye-laws (S. 16)-

A. Deed of declaration[1]:-

A deed of declaration has to be made by the sole owner or all of the owners of the property, submitting the same to the provisions of the Maharashtra Apartment Ownership Act, 1970. S. 2. Provides that the Act applies only to property, the sole owner or all of the owners of which submit the same to the provisions of this Act by duly executing and registering a Declaration as hereafter provided. In other words, to make provisions of the Act applicable to the property, it is necessary to make a declaration submitting the property to the Act.

3 (j) defines the term ‘Declaration’ means ‘the instrument by which the property is submitted to the provisions of this Act, (as provided by S. 2) and such Declaration as from time to time may be lawfully amended[2]’;.
3 (r) defines ‘property’ means ‘the land, the building, all improvements and structures[3] thereon, and all easements, rights and appurtenances[4] belonging thereto, and all articles of personal property intended for use in connection therewith, which have been or are intended to be, submitted to the provisions of the Act[5].

I. Contents of Declaration (S. 11):-

The declaration shall contain the following particulars, namely:-

(a) Description of the land on which the building and improvements are or are to be located; and whether the land is freehold or leasehold [and whether any lease of the land is to be granted in accordance with the second proviso to S. 2 of this Act].

(b) Description of the building stating the number of storeys and basements, the number of apartments and the principal materials of which it is or is to be constructed;

(c) The apartment number of each apartment and a statement of its location, approximate area, number of rooms, and immediate common area to which it has access, as well as any other data necessary for its proper identification.

(d) Description of common areas and facilities;

(e) Description of limited common areas and facilities; if any, stating to which apartments their use is reserved.

(f) Value of the property and of each apartment, and the percentage of undivided interest in the common areas and facilities appertaining to each apartment and its owner for all purposes, including voting; and a statement that the apartment and such percentage of undivided interest is not encumbered in any manner whatsoever on the date of the Declaration.

(g) Statement of the purposes for which the building and each of the apartments is intended and restricted as to use.

(h) The name of the person to receive service of process in the cases hereinafter provided, together with the residence or place of business of such person, which shall be within the city, town or village in which the building is located;

(i) Provision as to the percentage of votes by the apartment owners, which shall be determinative of whether to rebuild, repair, restore, or sell the property in the event of damage or destruction of all or part of the property.

(j) Any other details in connection with the property which the person executing the Declaration may deem desirable to set forth consistent with this Act.

(k) The method by which the Declaration may be amended is consistent with the provisions of this Act.

A true copy of each of the Declaration and by-laws and all amendments to the Declaration or the by-laws shall be filed in the office of the competent authority.

Form “A” is attached to the Act, providing a pro forma declaration. The Act requires the Declaration in the form “A”.

II Declarations, Deeds of Apartments and copies of floor plans to be registered (S. 13):-

13 requires the Declaration and all amendments thereto and the Deed of Apartment in respect of each apartment and the floor plans of the buildings referred to in Sub-section (2) shall all be registered under the Registration Act, 1908.

B. Deed of Apartments:-

As per the Act, every apartment owner is required to execute the Deed of Apartment.

As per S. 3 (b), “apartment owner” means the person or persons owning an apartment with an undivided interest in the common areas and facilities in the percentage specified and established in the Declaration.

Types of Deed of Apartments:-

In fact, there are first, second and subsequent types of deeds of apartments as follows:-

First Deed of Apartment:-

In the case of the first Deed of an Apartment, the party of the first part shall be either the sole owner or all the owners of the property who have or have executed and registered the Declaration in Form “A” (i.e. Deed of Declaration by property owners) and the party of the second part shall be apartment owner.

The first Deed of Apartment shall be accompanied by a copy of the relevant floor plans of the building filed under sub-section (2) of section (13) and by the certificate of an architect certifying that the said floor plan shows the number and dimensions of the apartments and that the said floor plan fully and accurately depicts the layout of the apartment, its execution, dimension, approximate areas, main entrance, common areas and facilities and limited common areas and facilities, if any, to which it has access, as built.

Second or subsequent types of Deed of Apartment:-

In the case of the second or subsequent Deed of Apartment, the party of the first part shall be the apartment owner, and the second party shall be his transferee.

The second or subsequent types of Deed of Apartment shall include (S.12):-

(a) Description of the land as provided in S. 11 of this Act or the post office address of the property, including, in either case, the number, page and date of executing the Declaration, the date and serial number of its registration under the (Registration Act, 1908) and the date and another reference, if any of its filing with the competent authority.

(b) The apartment number of the apartment in the Declaration and any other data necessary for its proper identification.

(d) The percentage of undivided interest appertaining to the apartment in the common areas and facilities.

(e) Any further details which the parties to the Deed may deem desirable to set forth consistent with the Declaration and this Act.

A true copy of every Deed of the Apartment must be filed in the office of the competent authority (S. 12 (2)) and registered (S. 13).

Effect of the declaration:-

The declaration follows the following effects:-

1) Act becomes binding (S. 24):-

All apartment owners, tenants of such owners, employees of owners and tenants, or any other persons that may in any manner use the property or any part thereof submitted to the provisions of this Act be subject to this Act and to the Declaration and the bye-laws of the Association of Apartment Owners adopted pursuant to the provisions of this Act.

All agreements, decisions, and determinations lawfully made by the Association of Apartment Owners in accordance with the voting percentages established under this Act, Declaration or by-laws shall be deemed to be binding on all apartment owners.

2) Action by Board (S. 23):-

By the declaration and registration, the Board of Managers can bring an action for their cause. Service of summons on a designated person would be treated as valid service of summons or notice, process as the case may be.

3) Exemption of stamp duty (S. 24 A):-

By application of the Act to the property, the State Government may reduce or remit stamp duty otherwise payable for some documentation.

C. Bye-laws[6] (S. 16):-

Bye-laws are the constitution of apartment owners. The administration of the property has to be made according to the bye-laws. A copy of the bye-laws has to be attached with the declaration. No amendment of that bye-laws is valid unless set forth in the amendment to the Declarations. Such amendments need to be recorded, and a copy of it needs to be filed with the competent authority.

In fact, it sets out the composition of office bearers of the Association of Apartment Owners for the good administration of the property.

The bye-laws shall provide for the following:-

1) The Election of the Board of Managers, the requisite number for its constitution, the term of its duration, with a provision for retirement if one-third of its members retire annually, the powers and duties of the board, the compensation payable to its members and delegation of such of its powers and duties which can be delegated to the services of secretary or manager;.

2) Method of calling a meeting of the apartment owners and the rules as to quorum;

3) The election of a president from the Board of Managers to preside over the meeting of the Board as well as the Association of Apartment Owners.

4) Election of secretary.

5) Election of treasurer;

6) Maintenance, repair and replacement of the common area and facilities and payments therefore and manner of collecting the shares of the members, therefore;

7) Terms of employment of a person for the maintenance, repair, and replacement of common areas and facilities;

8) Method of adopting and amending rules and regulating for the purpose of operation and use of common areas and facilities;

9) Reasonable restrictions on apartment owners to prevent unfeasible interference in the use of their respective apartments by other apartment owners.

10) The percentage of votes required to amend the bye-laws.

In addition, the bye-laws may also contain provisions for:-

1) Regulating transfer or partition of any apartment and percentage of undivided interest in the common areas and facilities.

2) Enabling the Board of Managers to retain a certain portion of the building for leasing to non-residents for commercial purposes and distributing the proceeds in accordance with bye-laws.

3) Audit, accounts, and administration of the property.

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[1] मिळकतीच्या मालकाने अपार्टमेंट अॅक्ट प्रमाणे करावयाचे घोषनापत्र, [‘घोषणा पत्र’ का अर्थ है ‘वह दस्तावेज जिसके द्वारा संपत्ति अपार्टमेंट अॅक्ट के प्रावधानों के लिए प्रस्तुत की जाती है।]

[2] “घोषणा पत्र’’ ’’म्हणजे असे पत्र की जायोगे मिळकत ही या कायदयाच्या तरतुदींना सुपुर्द केलेली असलयाचे घोशीत केले जाते. [सम्पत्ती के मलिक ने अपार्टमेंट ऐक्ट के तहेत कारनेवाला घोषणा पत्र ]

[3] संरचना

[4] निगडीत [पूरक]

[5] “मिळकत” म्हणजे जमीन,ईमारत, त्यावरील सर्व सुधारणा आणि संरचन ,आणि त्यातील सुर्व सुविधा अ इतर हक्क, आणि त्या वापरण्यासाठी उद्देश्लेल्या सव व्यक्तीक चीजवस्तू ,कि ज्या या कायद्याच्या तरतुदीकडे सुपूद्र केलेल्या आहेत”*

[6] संस्थेचा कारभार चांगला चालावा म्हणुन केलेले नियम [उपनियमों/ कोईभी संस्था अच्छी तरह काम करणे के लिये बनाये गये नियम]