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Relevance of KAOA under RERA

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Urban Development

Typical case of KOFA/ KAOA compliance

Listed below are relevant extracts of Sections/ Clauses from KOFA and KAOA, along-with my comments against each (in italics), in support of my claim of the 132 unit high-rise apartment complex I own an a flat in (and currently reside in), having been satisfactorily subjected to the provisions under KAOA:  

 

KOFA compliance

Sec 4: Promoter before accepting advance payment or deposit to enter into agreement and agreement to be registered.- Notwithstanding anything contained in any other law a promoter who intends to construct or constructs a block or building of flats, all or some of which are to be taken or are taken on ownership basis, shall, before he accepts any sum of money as advance payment or deposit, which shall not be more than twenty per cent of the sale price, enter into a written agreement for sale with each of such persons who are to take or have taken such flats, and the agreement shall be registered under the Registration Act, 1908 and such agreement shall contain the prescribed particulars; and to such agreement there shall be attached such documents or copies thereof, in respect of such matters, as may be prescribed.

We have individually entered into Agreements for Sale, of UDS, as per Sec4 of KOFA, between XYZ Housing, ABC Developers & the buyer, on 08-09-2003, along-with payment of 1st payment instalment.

Sec 11: Promoter to convey title, etc., and execute documents, according to agreement.- A promoter shall take all necessary steps to complete his title and convey to the organisation of persons, who take flats, which is registered either as a co-operative society or as a company as aforesaid, or to an association of flat-takers his right, title and interest in the land and building and execute all relevant documents therefor in accordance with the agreement executed under section 4 and if no period for the execution of the conveyance is agreed upon, he shall execute the conveyance within the prescribed period and also deliver all documents of title relating to the property which may be in his possession or power.

"association of flat takers" includes us

Sec 17: Act to be in addition to Transfer of Property Act and to over-ride contract to the contrary.-The provisions of this Act, except where otherwise provided, shall be in addition to the provisions of the Transfer of Property Act, 1882, and shall take effect notwithstanding anything to the contrary contained in any contract.

This should take care of property transfer

 

KAOA compliance:

Cl 1: An Act to provide for the ownership of an individual apartment in a building and to make such apartment heritable and transferable property and for matters connected therewith. WHEREAS it is expedient to provide for the ownership of an individual apartment in a building and to make such apartment heritable and transferable property and to provide for matters connected therewith

self-explanatory

Cl 3 (b): “apartment owner” means the person or persons owning an apartment and an undivided interest in the common areas and facilities in the percentage specified and established in the Declaration

self-explanatory

Cl 3 (i): “competent authority” means in relation to building constructed or to be constructed by the Housing Board, the Secretary of the Housing Board and in any other case, the Registrar of Co-operative Societies as defined in the Karnataka Co-operative Societies Act, 1959

This is the problem area, with RoCS not properly empowered

Cl 4: Status of apartments.- 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: and accordingly, an apartment owner may transfer his 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 other manner whatsoever in the same manner to the same extent and subject to the same rights, privileges. obligations, liabilities, legal proceedings and remedies as any other immovable property, or make a bequest of the same under the laws applicable to the transfer and succession of immovable property.

self-explanatory

Cl 6: Common areas and facilities.- (1) Each apartment owner shall be entitled to an undivided interest in the common areas and facilities in the percentage expressed in the Declaration. Such percentage shall be computed by taking as a basis the value of the apartment in relation to the value of the property and such percentage shall reflect limited common areas and facilities. (2) The percentage of the undivided interest of each apartment owner in the common areas and facilities as expressed in the Declaration shall have permanent character, and shall not be altered without the consent of all of the apartment owners expressed in an amended Declaration duly executed and registered as provided in this Act. The percentage of the undivided interest in the common areas and facilities shall not be separated from the apartment to which it appertains, and shall be deemed to be conveyed or encumbered with the apartment even though such interest is not expressly mentioned in the conveyance or other instrument.

self-explanatory

Cl 9: Encumbrances against apartments; removal from, encumbrances, effect of part payment.- (1) Subsequent to recording the Declaration as provided in this Act, and while the property remains subject to this Act, no encumbrance of any nature shall thereafter arise or be effective against the property. During such period encumbrances may arise or be created only against each apartment and the percentage of undivided interest in the common areas and facilities appurtenant to such apartment, in the same manner and under the same conditions in every respect as encumbrances may arise or be created upon or against any other separate parcel of property subject to individual ownership.

self-explanatory

Cl 12: Contents of Deeds of Apartments.-

(1) Deeds of Apartments shall include the following particulars, namely:-

(a) description of the land as provided in section 11 of this Act or the post office address of the property, including in either case the book, page and date of executing the Declaration the date and serial number of its registration under the Registration Act, 1908 and the date and other 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;

(c) statement of the use for which the apartment is intended and restrictions on its use, if any;

(d) the percentage of undivided interest appurtaining to the apartment in the common areas and facilities; and

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

(2) A true copy of every deed of Apartment shall be filed in the office of the competent authority.

Self-explanatory - we filed a copy of the Deed of Declaration through registered post, for which we have an acknowledgement.

Cl 13 (5): The Sub-Registrar, or as the case may be, the Registrar shall register the Declaration along with floor plans of the building and the Deed of Apartment in the “Register of Declaration and Deeds of Apartments under the Karnataka Apartment Ownership Act, 1972” and shall also enter particulars in the Index kept under subsection (3). Any person acquiring any apartment or any apartment owner shall be deemed to have notice of the Declaration and of the Deed of Apartment as from the

date of its registration under this section. (6) Except as provided in this section, the provisions of the Registration Act, 1908, shall mutatis mutandis apply to the registration of such Declarations and Deeds of Apartments, and the words and expression used in the section but not defined in this Act shall have the meaning assigned to them in the Registration Act, 1908.

self-explanatory

Cl 18: Separate assessment.- Notwithstanding anything to the contrary contained in any law relating to local authorities, each apartment and its percentage of undivided interest in the common areas and facilities appurtenant to such apartment (being an apartment submitted to the provisions of this Act) shall be deemed to be separate property for the purpose of assessment to tax on lands and buildings leviable under such law and shall be assessed and taxed, accordingly; and for this purpose, a local authority shall make all suitable rules to carry out the provisions of this section. Neither the building, the property nor any of the common areas and facilities shall be deemed to be separate property for the purposes of the levy of such tax.

self-explanatory - property tax not leviable on common property (as the levy on SBA for each flat, collectively covers the tax on common areas too)

Cl 26: Removal of doubt.- For the removal of doubt, it is hereby declared that the provisions of the Transfer of Property Act, 1882, shall in so far as they are not inconsistent with the provisions of this Act, apply to every apartment together with its undivided interest in the common areas and facilities appurtenant to such apartment as those provisions apply in relation to any immovable property, and the provisions of this Act shall take effect, notwithstanding anything to the contrary contained in any contract.

self-explanatory.

 

PS: As seen from the above, KAOA provides a fairly good structure for carrying on the activities of the association, while also taking care of saleability, inheritability, transferability of a flat, alongwith the UDS (undivided share of land) appurtenant to it, like any other immovable property. Over the last 15+ years that we have been in existence, we have managed our affairs fairly well, guided by the provisions in the Act, as also the set of rules & regulations, and by-laws, some of which have been amended, as required, from time to time.

To satisfy the requirement under KOFA, we filed a copy of our "Deed of Declaration" with the Registrar of Co-operative Societies (the "Competent Authority, named in KOFA), by registered post, since the office was otherwise refusing to receive the copy, stating that they have not been empowered to do so. After that, we have had nothing to do with them.

Actually, the only purpose they would serve is if there is a dispute. Without them, the recourse would be to take the matter to the judiciary, in case of a dispute.

Now, Bangalore Club has been in existence from 1868, just as an AOP (Association of Persons), unregistered under any Act. They have filed enough cases, and enough cases have been filed against them, and as such their standing as a "body corporate" (or as “juristic body”) has never been in question.

Given all of the above, I don't see the need for the "Competent Authority" to carry out any regulatory function for us (like the Registrar of Societies is 'supposed' to be doing, and charging a bomb for it). It would have helped if they just maintained a record of our filing, given us a certificate with a serial number, charged a nominal fee for it, and then left us to manage our affairs ourselves.

Muralidhar Rao

Comments

murali772's picture

Response to points raised in a debate

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I had circulated my note in the opening post in a g-mail group of citizens, quite studied in matters pertaining to KOFA, KAOA, RERA, KSRA, vis-a-vis high-rise apartment complexes, elaborating on how I see the process of subjecting the apartment complex where I own a flat and currently reside in, to KAOA, as fairly complete. It generated a lot of debate, the main points raised being as below (in italics), to which I had responded as in regular print.

Point no 1):  An important step is to discard and discredit the theory that undivided interest or share (as builders conveniently morph the word to) is a CONVEYANCE of property. This word isn’t even defined in the statutes as far as I know. Conveyance of immovable property must conform to Sec 21 of Regn Act. It’s as I have been stating only a metric for share payable by each apt owner for the common area upkeep and maintenance and nothing else.

My response: Extracts from Section 21 (4) in The Registration Act, 1908: "Where a document comprises several properties and the description is sufficient as to some, but insufficient as to others, the registering officer must not refuse to accept the document for registration in its entirety; Kesava v. Kannusamy, (1904) 15 Mad LJ 30."

I'd think the above answers the point being made.

Point no 2):  All Apartment Associations in Karnataka must be registered under Cooperative Act or Cooperative Act after implementation of RERA (11-07-2017). It is as per section 11(4)(e) and 17 of RERA Act.

Section 11(4)(e) refers to existing laws local laws in Karnataka for forming  Association of Apartment Purchasers. The existing local laws are – KOFA and KAOA. Under KOFA, associations can be formed under the Cooperative Act or under Companies Act. Thus, as on today, after RERA, Associations could have been formed under KAOA Act or Company Act or Cooperative Act. These three acts are existing laws under the Statue in Karnataka.

My response: I have reproduced as below extracts from RERA and KOFA, from which it is evident that there is a provision even under RERA for an “association of allottees” as per KAOA (apart from as per Companies Act, or Co-op Societies Act), which I believe is best suited for the purpose.

Sec 2 of RERA - Definitions:

(n) “common areas” mean— (i) the entire land for the real estate project or where the project is developed in phases and registration under this Act is sought for a phase, the entire land for that phase;

Sec 11 of RERA - Functions and duties of the promoter:

(e) enable the formation of an association or society or co-operative society, as the case may be, of the allottees, or a federation of the same, under the laws applicable: Provided that in the absence of local laws, the association of allottees, by whatever name called, shall be formed within a period of three months of the majority of allottees having booked their plot or apartment or building, as the case may be, in the project;

(f) execute a registered conveyance deed of the apartment, plot or building, as the case may be, in favour of the allottee along with the undivided proportionate title in the common areas to the association of allottees or competent authority, as the case may be, as provided under section 17 of this Act;

Sec 17 of RERA - Transfer of title:

(1) The promoter shall execute a registered conveyance deed in favour of the allottee along with the undivided proportionate title in the common areas to the association of the allottees or the competent authority, as the case may be, and hand over the physical possession of the plot, apartment of building, as the case may be, to the allottees and the common areas to the association of the allottees or the competent authority, as the case may be, in a real estate project, and the other title documents pertaining thereto within specified period as per sanctioned plans as provided under the local laws

(2) After obtaining the occupancy certificate and handing over physical possession to the allottees in terms of sub-section (1), it shall be the responsibility of the promoter to handover the necessary documents and plans, including common areas, to the association of the allottees or the competent authority, as the case may be, as per the local laws.

Point no 3):  But as per section 17 of RERA, though the apartment purchasers pays for the proportionate Undivided Share of Project land, all such Proportionate UDS of all apartment purchasers must be transferred by the Promoter to the Association of Apartment purchasers formed as per the existing local law mentioned above, by registering the conveyance Deed

But under KAOA, the title of the Proportionate UDS of the Apartment allocated to it in the Registered Declaration is to be registered in the name of the Apartment Purchaser. This basic principle of KAOA contradicts the RERA requirements (Section 17) which is referred above.

My response:

Extracts from Cl 4 of KAOA: Status of apartments - "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"

So, very clearly, an apartment and the undivided interest appurtenant to it form a single unit and cannot have different ownership. If the wordings in RERA convey a different meaning, perhaps they need to be corrected.

Extracts from Cl 18 of KAOA: Separate assessment - "Notwithstanding anything to the contrary contained in any law relating to local authorities, each apartment and its percentage of undivided interest in the common areas and facilities appurtenant to such apartment (being an apartment submitted to the provisions of this Act) shall be deemed to be separate property for the purpose of assessment to tax on lands and buildings leviable under such law and shall be assessed and taxed, accordingly; and for this purpose, a local authority shall make all suitable rules to carry out the provisions of this section. Neither the building, the property nor any of the common areas and facilities shall be deemed to be separate property for the purposes of the levy of such tax.

self-explanatory - property tax not leviable on common property as the levy on SBA (Super Built-up Area) for each flat, collectively covers the tax on common areas too.

Under RERA, however, since individual ownership is supposed to be only for "carpet area", as also the undivided 'interest' on the land is supposed to be vested only with the Co-op Society (as argued by some), property tax on the land as a whole and built-up area like gym, club-house, etc, will become leviable on the Co-op Society, leading to total confusion, and thereby a fertile ground for rent-seeking pursuits of "inspectors". This again, I see as an anomaly, and perhaps needs to be corrected.

Point no 4):  Facilitating the forming the Association of Allottees under Cooperative Sector is a compulsion to RERA Authorities is a compulsion for all RERA Registered Apartment Projects.

My Response:  Disagree, based on all of the above.

Point no 5):  An association under KAOA cannot become a "body Corporate" (or juristic person), since it was not formed by members voluntarily, but by the developer.

My Response: Not sure if that court ruling will apply here. Whatever, what if the members subsequently vote unanimously for recognition as "body Corporate"?

Muralidhar Rao
murali772's picture

KAOA best suited, after correction of RERA anomalies

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At a webinar on the 29th Aug, a noted Mumbai based expert seemed to suggest that the "association of allottees" have the option of subjecting a new development (conforming to RERA), to the provisions under KAOA, and not necessarily to those under Co-Op Societies Act, or Companies Act.

He had added that the only short-coming in KAOA is the lack of a regulatory body. But, very much as the panelist from Gujarat stated, the nominated 'regulators' ('competent authority' or whatever you may want to call them) are not doing much of a job there either, with every case anyway landing up in courts.

All of the above seemed to corroborate my views as detailed in my opening post (scroll above).

Subsequent to the seminar, I bothered to study RERA deeper, and came up with the note titled "response to points raised in a debate" (scroll above). In the process, I came up on what I see as serious anomalies as detailed below (more fully detailed in the "response" post):

A) Apartment and it's undivided share as separate properties: As per section 17 of RERA, though the apartment purchasers pay for the proportionate Undivided Share of Project land, all such Proportionate UDS of all apartment purchasers must be transferred by the Promoter to the Association of Apartment purchasers formed as per the existing local law, by registering the conveyance Deed.

(In contrast, as per Cl 4 of KAOA: Status of apartments - "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". So, very clearly, an apartment and the undivided interest appurtenant to it form a single unit and cannot have different ownership).

The above conveys the meaning that the "apartment" and it's proportionate "Undivided share of Project land" can be sold, transferred, inherited, etc independent of each other

This is plainly anomalous, and needs to be corrected.

B) Separate assessment: Under RERA, since individual ownership is supposed to be only of the "carpet area", and the ownership of the appurtenant "undivided interest on the land" is supposed to be vested with the Co-op Society, it will lead to a situation where the individual pays property tax on the apartment alone, and the property tax on the land as a whole and built-up areas like gym, club-house, etc, will become leviable on the Co-op Society.

(In contrast, as per Cl 18 of KAOA, extracts from which read as "Notwithstanding anything to the contrary contained in any law relating to local authorities, each apartment and its percentage of undivided interest in the common areas and facilities appurtenant to such apartment (being an apartment submitted to the provisions of this Act) shall be deemed to be separate property for the purpose of assessment to tax on lands and buildings leviable under such law and shall be assessed and taxed, accordingly; and for this purpose, a local authority shall make all suitable rules to carry out the provisions of this section. Neither the building, the property nor any of the common areas and facilities shall be deemed to be separate property for the purposes of the levy of such tax.” Essentially, property tax levy on SBA (Super Built-up Area) for each flat, collectively covers the tax on common areas too).

Very clearly, the RERA "carpet area" based assessment will lead to total confusion, and therewith provide a fertile ground for rent-seeking pursuits of "inspectors".

This again, I see as an anomaly, and needs to be corrected.

All of these have caused to reiterate my view that KAOA, with it's condominium concept enabling self-governance, is the most suited to managing high-rise apartment complexes, compared to any other route where you land up being led by the nose by some "in-competent authority" (and being charged for it heavily too).

Also, all of the 'regulatory' function is needed mostly at the development stage, which is being taken care of by the now duly empowered RERA. Beyond that, there is not much to do, and whatever little is to be done can be left to the General Body of the owners to carry out, and thereafter to manage their affairs by themselves, guided by the rules and bye-laws.

RERA's functions can perhaps be extended to issuing a certificate to the "association of allottees" (once the deed of declaration is registered with the sub-registrar), as the developer having completed the process of subjecting the complex in question to KAOA, too.

Besides, quite like a very senior lawyer in the city (who also was the Charter President of the association in one of the earliest multi-storied housing complexes, where he resides even today) opined, "no administration can be more transparent than that by a democratically elected 'Managing Committee' functioning according to the guidelines prescribed by a vigilant General Body of members".

Muralidhar Rao
murali772's picture

PIL filed seeking review of entire matter by GoK

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All of these have now gained an added significance in view of Col Mathew (a veteran of many court battles) having filed a fresh PIL in Karnataka High Court (No 10669-2019 admitted in Nov 2019, and notices sent to respondents - Chief Sec, GoK; and Registrar of Co-op Societies),
 
the "prayer" seeking to declare that:
A. The Karnataka Apartment Ownership Act, 1972, is unconstitutional;
B. Karnataka Apartment Ownership Rules, 1974, is unconstitutional;
C. Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972 is unconstitutional;
D. Karnataka Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Rules, 1975 is unconstitutional;
E. Quash the Circular dated 30.11.2018 passed by the 2nd Respondent at Annexure F;
F. Provide such and other suitable directions/reliefs which on account of all the grounds raised herein deem fit in the interest of justice and equity.
 
And, "interim prayer" seeking as below:
In the aforesaid circumstances the Petitioner humbly prays that, pending consideration of the present writ petition, this Hon’ble Court may be pleased to stay the operation of the Circular dated 30.11.2018 passed by the 2nd Respondent at Annexure F pending disposal of this petition
 
To a query from me Col Mathew has responded as below: 
It's not my view that KSRA society is the only one for apartment owners associations. They may choose to form a cooperative society or a company. Both cooperative societies and companies are unsuitable due their complexity and costs of administering. The Karnataka government has said that cooperative societies are clogged due to government interference! RBI has suggested excluding housing cooperatives from KSS, 1997 for the reason that they will be vulnerable to misappropriation, mismanagement and manipulation. KAOA even if one tries to empower the association since, these are not cooperative societies, the registrar has no law to guide him in ensuring statutory compliance. 
 
Above is self-explanatory. In view of this development, I have recommended to the BAF (as a federation representing over 800 apartment complexes) to deliberate over the matter, take a stand, and perhaps implead in the case as it deems fit. Actually, the PIL can be viewed as an opportunity to sort out the vexatious issue for the benefit of all the stake-holders involved. 
 
Muralidhar Rao
murali772's picture

A view by another veteran studied in the matter

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This note by Mr  Muralidhar Rao which is a forward of a draft by Col Mathew Thomas seeks to take us all back to square one. I am sure some of us remember his presentation to all of us as at Adigas in jan 19.  The views have been debated earlier and rejected. They are like I say what we call we call ‘situating the appreciation’. 
 
The views of Col Mathews are one sided and ignores many realities and laws. They suffer from a lot of biases from an era gone by. 
 
Government interference with coop societies is what has led to the constitutional amdts and even the KSS Act 97. Structures for tackling corruption are solid and if implemented and enforced this malaise should not be a given. Corruption in any system needs tackling and is a sad reality of our land. It has to be sorted out if we are to evolve as a nation. 
 
The reason why legislators excluded housing assns from KSS act needs research and examination. There would be a reason. Possibly something to do with stamp duty and regn of Immovables that Karnataka was trying to deal with in respect of coop hsg societies till law was amended in 2010-12. But that’s a hunch. 
 
The KSS Act predates the 97th Amdt and is a forebearer of what’s been done by constitutional amdt for whole country. That is, it is primarily legislated and seeks to reduce govts interference and regulatory role of registrar and pass that role onto a federation that would get created to oversee coop hsg societies. ROCS saddled as they have been with ROS functions passed in by IGR seeks to avoid addl responsibilities as MR Prassana Kumar argues in the KRERA meeting. 
 
“ In the post  Independence period, crores of rupees were spent on popularizing the Cooperative Movement and make it a successful venture. The Central Planning Commission realized that the cooperative sector failed with much less drastic change that was expected. The effort and the funds invested went in vain and as this was realized, the Ardhanareshwaran Committee was formed, The Committee in its report in 1987 after studying declared that the Cooperative Movement has failed in the Country because of the heightened Intervention of the Government in the affairs of the Cooperatives.
 
Realizing the need for the growth of the sector that promotes the economic development of the people requiring the voluntary participation in the affairs the planning commission formed another Commission under the able leadership of Sri Choudhary Brahmaprakash, This Commission presented a model Cooperatives Act in 1991. The Central Government circulated this model Act to all states with an advice to incorporate the same as it ensures more power to the members, more member participation and less government intervention in the affairs of the Cooperatives. Karnataka came out with The Karnataka Souharda Sahakara Act, 1997 framed on the lines of the Model Act given by Sri Choudhary Brahamaprakash committee.”
 
How KSRA 60 can be vested with land is clarified in the act and even the law has been settled by the Supreme Court Illaichi Devi judgement. Societies under SRA have many lacunae and cannot manage large society management. Given various reasons including large developments, ksra framework cannot seek to handle management of large structures as it doesn’t have the necessary regulatory and redressal framework that is a necessity of today. 
 
BAF than take us all back to square one must invest it’s efforts in RERA realities than drag Bangalore and Karnataka back to the days of no enforcement and Implementation of laws. They must IMO lead not to support Col Mathews contention in WP admitted but must use its resources to challenge and get the law clarified in the light of rera and need for proper conveyance of immovables to their many associations. Than go by Col Mathews theories we must go with what Maha activists state and what causes that state in Bombay, Pune, Thane etc to be 90 percent cooperative societies. They are even using deemed conveyance provisions of MOFA abandons the condominium framework and migrating to coop hsg societies. Some 50000 applications are under process for this. 
 
This move to reintroduce issues that have been debated and rejected is a retrograde step out of sync with times when Apartment complexes of very large sizes are skyrocketing. 
 
It ignores new realities. We need to look ahead not back basking in the inertia that has plagued housing sector in Karnataka. 
 
Whoever had said anything else in the past, I had always maintained that KAOA itself was best suited to the matters of ownership and management of housing societies, after effecting necessary correctives to the few existing lacunae. The matter of anomalies in RERA, raised by me (refer post titled "KAOA best suited - - - ", has not been commented upon.

 

Muralidhar Rao
murali772's picture

responses by an activist, quite studied in the matter

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I have read your comments in the blog. There are following 10 Points on which there is a necessity of the Hon'ble High Court Decision. A good Writ Petition/PIL is necessary. 
 
(1) After RERA, none of the provisions of any Local Acts/Central Acts, relating to Real Estate Activities/business can continue if such provisions contradict RERA Act provisions.
 
(2) KAOA was enacted for the specific purpose of giving legal title ownership of Apartment by making provision for UDS. It means that there was no provision to own an apartment in a building as per Transfer of Property Act, 1882 and Registration Act, 1908 (Basic Acts for owning a plot of land or independent House/Bungalow) until 1970. Hence legislation of KAOA was necessary. This was removed by legislating MAOA/KAOA in Maharashtra/Karnataka. These two acts also have the inbuilt  provisions of forming Association of Apartment Purchasers.in addition to owning the Apartment by the purchaser like owning a plot or independent building. The purpose of such Association to deal with connected matters of living in the Apartment along with other apartment purchasers like maintenance of common area and facilities. There is also provision for living of tenants in the Act. 
 
(3) Is it possible to own the Apartment in a building by not following all the 27 provisions of KAOA/MAOA, the acts specifically enacted for the basic purpose of owning the Apartment in a multi-storied building. The High Court can only decide on it. The High Court can only give verdict whether following all 27 sections of KAOA/MAOA is necessary to become absolute owner of an Apartment in a Building or is it possible to become owner of the Apartment by following few sections of KAOA or is it possible to become owner of an apartment without registering the basic document, Deed of Declaration. 
 
(4) In Maharashtra Bombay High Court has given the judgment that following the provisions of MAOA is necessary to become owner of the Apartment with legal title and forming Association of Apartment Purchasers. 
 
(5) If the provisions of MAOA are not followed as per the Acts/Rules on it, the purchaser of Apartment will not become the legal owner of the Apartment. In such a situation  the Apartment purchasers can form Cooperative Housing Society of Apartment Purchasers. There are many judgments of Bombay High Court in this regard.
 
(6) In Karnataka, the High Court has clearly given judgment, that there is no provision in the Karnataka Societies Registration Act, 1960 for registration of ASSOCIATION OF APARTMENT PURCHASERS. What will be the fate of all existing Apartment Owners Associations registered under KSRA, 1960?
 
(7) Is there any link between KOFA and KAOA? If the answer is YES, is it necessary to link the missing provisions between KOFA and KAOA?
 
(8) Can KAOA be implemented without Competent Authority?  If Competent Authority is necessary, what is his role in implementing KAOA?
 
(9) Can 18 sections of KOFA be implemented without Authority/Officer? Is it necessary to have a Competent Authority for administering KOFA?
 
(10) How to remove the total mess created (in Sale/Purchase/construction/Registration of Deed of Apartment/Forming Association) in the last 44.5 years by improper implementation of KOFA and KAOA.
 
Only, the Honourable High Court of Karnataka can give its verdict after hearing the appropriate writ Petition or PIL. 
 
My comments: Quite a few valid points. But, nuanced stances pertaining to most have already been brought out in my opening and 2nd posts (scroll above to check). Also, I doubt subjecting/ switching to Co-op Societies Act can solve any of the basic problems. Like I have stated earlier too, KAOA itself is best suited to the matters of ownership and management of housing societies, after effecting necessary correctives to the few existing lacunae. The anomalies in RERA, pertaing to "carpet area" basis of allocation of "undivided share" (refer post titled "KAOA best suited - - - ", scrolling above), perhaps need correction too.
 
PS: Since the blog-site is currently under upgradation, PRAJA is currently not in a position to allow fresh member registrations. The inconvenience is regretted.
Muralidhar Rao
murali772's picture

Not a PIL, but a Writ Petition

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Col Mathew has subsequently clarified that the first petition was withdrawn on the suggestion from the bench to file as a Writ instead of a PIL. The writ is admitted and notices issued to both respondents. Neither respondent has filed counter. From reports available it appears that the government is frantically trying to come up a new law. 
 
He adds "My writ does NOT seek to promote KSRA. It questions the constitutionality of KAOA and KOFA. Secondly, it seeks to ensure that the fundamental right of home buyers to form associations of their choice is not abridged."
 
Muralidhar Rao
murali772's picture

Perhaps choose between KAOA & Co-op Society

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The veteran I had referred to in my post of 12th Sept, commented as below, in a WhatsApp group where I too am a member, though relatively inactive:
 
Maharashtra (and Gujarat) has, after Rera, made cooperative society or a company mandatory. Thus common areas are ‘conveyed’ through a regd deed in the name of the society. If builder doesn’t do so, for whatever reasons, then they have legislated deemed conveyance of land title. 
 
Individual apartment ownership would be through the procedure as appears to be getting notified above.  
 
With the Supreme Court judgement (not sure which judgment is being referred to here) the saleability and heritability gets reinforced. This also virtually renders KAOA as meaningless, and one gets act with proper regulation and enforceable. 
 
In Karnataka we are dumped in an unregulated and unenforced act KAOA. The only beneficiary are the builder and probably few of their proxies. 
 
Govt of Karnataka is ceased of issues and is taking steps to handle post RERA constitutional necessities. Builders and some with vested interests work hard to prevent RERA too remaining unenforceable. They want to let the old thrive.
 
In response, I had reiterated that neither PRAJA, nor BAF, is asking for repeal of RERA. A properly empowered regulatory body (particularly for the development stage) has been long overdue, and hopefully, RERA is evolving into that, even if it's not happening as speedily as one would have liked it.
 
And, as to the question of "KAOA becoming meaningless"", in my post of 9th Sept titled "KAOA best suited - - " (scroll above to read), I had pointed out that "a noted Mumbai based expert seemed to suggest that the "association of allottees" have the option of subjecting a new development (conforming to RERA), to the provisions under KAOA, and not necessarily to those under Co-Op Societies Act, or Companies Act."
 
Further, going by what is stated in the veteran's note, if housing associations have necessarily to be registered as Co-op Societies or as Companies, the following questions arise:
 
a) If the number of shares allotted to the buyer of (say) flat no A-102 in a complex is (say) 123 (jointly for the flat and undivided share of land), I expect it will have to be clearly tagged together, since sale/ tranfer of shares identified just as 123 numbers, will not specify a particular flat.
 
b) Also, I expect the arrangement will call for the municipality levying it's tax (based on the local structure) for the property as a whole on the Co-op Society, and the same being collected by the Society from the share-holders on the basis of individual shares held. 
 
c) Further, in the case of row houses/ villa's within in a complex, additional shares will have to be allocated for the payments made for the exclusive enjoyment of the land. Likewise in the case of pent-houses, as also car parking slots. Norms for these will have to be enunciated.
 
I expect the logic of the above is clear, and the "activists" will pursue them. Also, Co-op Housing Societies have been in existence in cities like Mumbai from long, and I expect they have figured out the way to address the issue. Would help if someone can enlighten us on how it's done. 
 
All said and done, I do appreciate that in the case of very large complexes, the Co-op Society/ Company route could perhaps provide the way forward. But, in the case of smaller complexes, I should think the KAOA is good enough for day to day management (post development - check my post titled "KAOA best suited - -" of 9th Sept, scrolling above), since it will also avoid their being burdened with filing returns, and paying huge fees for hardly any work involved.
Muralidhar Rao

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