MISSING ELEMENTS IN THE KERALA APARTMENT OWNERSHIP ACT 1983
MANAGEMENT OF COMMON PROPERTIES IN REAL ESATE PROJECTS
Face to Face with the Stake Holders
(Seminar on the Common property management)
Date : to be decided
Venue: MKD Hall, Golden Jubilee Chamber Complex, High
Court of Kerala, Ernakulam 682018
Dear Friends:
Greetings from the Society of Construction Law Kerala Chapter
Society
of Construction Law SCL (Kerala Chapter) functions for furthering the
objectives of its parent organization, which includes to work to promote
education study and research and publication of valuable results of such
research in the field of construction law and related subjects and its
dissemination in India and abroad. This
note is intended to release the study made by SCL Kerala Chapter, regarding
common property management of real estate property.
The different types of real estate properties include
plots, villas, multi-unit apartment complex or condominiums. The Kerala Apartment Ownership Act 1983, is
the law applicable in Kerala, for the common property management of condominium
type of properties. This is one interesting statute that came into force in
1984, but never put into use for the last 38 years. The government does not appear to be very
enthusiastic in implementing the law, as the rules were formulated after 10
years and the competent authority was appointed only after 32 years, in 2016.
The SCL (Kerala Chapter) made an attempt to study the
reasons behind the non-enforcement of the 1983 Act. In the meantime, the RERA Authority has
proposed certain amendments to the Act. It
was deemed appropriate to review the proposals in the light of the globally
followed condominium laws, and the findings of the SCL (Kerala Chapter) study. Therefore, the society decided to conduct a
face to face with the stakeholders and to enable them to voice their
views regarding the proposal for amendments.
The conclusions arrived at by the subcommittee of the
SCL (Kerala Chapter) is a relevant consideration for before attempting to amend
the present law. Hence the conclusion
are briefed below for an easy reference:
·
The
Kerala Apartment Ownership Act 1983 (Act V of 1984) and Maharashtra Apartment Ownership
Act 1970 (Act XV of 1971) were adapted from the model law formulated by the Federal
Housing Administration, hence the said statute has an international origin.
·
The
Kerala Apartment Ownership Act 1983 (Act V of 1984) was a near copy of the Maharashtra
Apartment Ownership Act 1970 (Act XV of 1971). The Kerala statute could not be enforced
because therefore was not regulatory mechanism to compel the promoters of condominium
type of properties to file declarations immediately before executing conveyance
deeds in favor of allottees of the project.
o
Read
the provision (Section 2) relating of Application of Act in both these statutes
for better clarify. “The Act applies
only to property, the sole owner or all the owners of which submit the same to
the provisions of the Act by executing and registering a declaration…”
o
In Maharashtra,
there was a regulatory statute in the nature of Maharashtra Ownership Flats
(Regulations of the Promotion of Construction, Sale, Management and Transfer)
Act 1963, which provided for statutory obligation for the promoter of
condominium type of properties to execute and register declarations are
required under Section 2, however there was not corresponding legislation in
Kerala.
·
In
view of the lack of the regulatory legislation, similar to Maharashtra
Ownership Flats (Regulations of the Promotion of Construction, Sale, Management
and Transfer) Act 1963. in Kerala, hence the 1983 Act assumed the character of
a conditional legislation.
·
The
failure to enact a regulatory legislation in the nature of Maharashtra
Ownership Flats (Regulations of the Promotion of Construction, Sale, Management
and Transfer) Act 1963, could only be a legislative inadvertence. However, the promoters appear to have taken
advantage of this mistake.
·
The
1983 Act is not only intended for the formation of the apartment owners
associations for managing common properties but also to provide for exclusive
ownership for the individual owners.
Hence, the legislature could not, at any stretch of imagination, would
have enacted the law to remain a conditional legislation at the opinion of the
promoters or apartment owners. The
preamble of the statute clarifies the intention of the legislation, that it is
for making ‘…an apartment heritable and transferable property’.
·
Given
the above intention of the legislation, the Act cannot remain a conditional
legislation, so as to prejudice the interest of the beneficiaries of the
legislation, namely the apartment owners.
·
The RERA
Act of 2016, has filled the gap in the matter of requirement for regulatory
statute. However RERA applies to
registered projects completed, after 1st July 2017. Therefore, appropriate amendment may be necessary
protect the interest of the interest of apartment owners, where the construction
was completed before this date.
·
The
procedure for filing of declaration needs to be simplified. A provision for online filing of declarations
and deed of apartments may be helpful.
·
The
amendment should suitably address the problem created by the promoters, who
have failed to execute and register the declarations and deed of apartments,
even when they chose to construct condominium type of properties.
·
The
amendment to the 1983 Act should contain a declaration of law for bringing in the
above-mentioned type of condominium types of properties, with the ambit of the
law. A simplified procedure for brining
in such condominium, with retrospective effect is needed.
·
There
is appropriate provisions in the RERA Act to protect the formation of common
area management with respect to other types of real estate properties, like
plots villas etc.. Hence, mixing up
apartment complexes or condominiums with plots or villas may not be proper, but
we may add a new chapter to the 1983 Act and rename the statute and also add a
model byelaw applicable to them.
SCL (Kerala Chapter), therefore considers that the
above conclusions may be relevant which amendments are proposed to the 1983
Act. Hence, we would welcome all the
stake holders of the real estate industry to participate the face to face
program proposed to be convened on 4.12.2022 Sunday 3 PM, in the MKD Hall,
Golden Jubilee Chamber Complex, High Court of Kerala
23.11.2022
Kochi Johnson
Gomez
President, Society of Construction Law (Kerala Chapter)
It would be advisable to amend the said Act prospectively so that the future flat owners and their promoters can be benefited and practically it would be possible to implement the same . Presently all condomiums / apartment complexes in Kerala are registered under Society Act which gives a legal status being recognised by law as a recognised residential association . Again compelling flat owners and promoters who have already handed over the projects to go for fresh registeration of such already registered associations under new Apartment Ownership Act is not practical at all and few flat owners may start regiratering their flats individually as it is happening now creating chaos in the apartment complexes which are being run smoothly by the existing associations registered under Society Act. Unless majority of flats in a complex are registered under new proposed Apartment Ownership Act , how can a few flat owners who have gone for individual registrations under ithe said new Act as per court orders , can claim that they are the real association etc.
ReplyDeleteThe additional benefits which are available to flat owners associations being registered under new Apartment Ownership Act over the ones registered under existing Society Act are hardly there and are not explained by anyone properly to this date.
A reply would be highly appreciated.
Adv. Paul Antony Maniamkot,
Advocate & Notary Public ( Govt. of India),
Mob. No. 9539567780.
We need to understand that a mistake has happened when the Kerala Apartment Ownership Act, was made, because suitable regulatory provisions to compel the promoters to submit the condominiums type of properties to the provisions of the Act . The mistake was really expensive for the apartment owners. It is therefore a legislative obligations to rectify it. The correction should include some effective measures for an easy transition of the existing associations to an association under the Act.
ReplyDeleteAs such, after the RERA, there is no requirement for any serious amendments required for the Apartment Ownership Act, except by making for online filing of documents and the like.
All that may be needed is that the The RERA Authority need to mandatorily direct the promoters of projects registered under the RERA to submit the property to the provisions of the Act, also.
The legislature has to concentrate on making suitable amendments in the statute to enable the submission of the condominiums of the Pre-Rera era, to be submitted to the provisions of the Act, through some enabling provisions.