RERA vs. KAOA: Government of Kerala Rules Out Repeal of Apartment Ownership Act 1983

 

The apartment ownership law of Kerala is now about 42 years old, yet it has hardly done wonders for home buyers in the State. It is a matter of record that, with the solitary exception of 'Gold Tower, Vazhakkala', scarcely any condominium has been effectively submitted to the provisions of this law. Born with a disability, the Act has been ailing ever since its birth. Despite serious attempts to kill it, the law has survived all such threats. Now, the Government has been forced to declare that this law cannot be prematurely killed. Here, we discuss the recent Government Order which declares that the Kerala Apartment Ownership Act, 1983 is not only alive but mandatory and liable to be enforced.

The "Forced" Disability and the Missing Teeth

The disability was not in the Act’s "genes"—it was not an inherent flaw in the concept of apartment ownership itself—but was rather forced upon it by its legal draftsmen. The Legislature, seemingly without necessary deliberations, enacted the statute after obtaining Presidential assent. One may wonder why a state housing law required Presidential assent. The answer lies in its deviation from the reigning law of the land—specifically, Section 44 of the Transfer of Property Act, 1882, regarding joint ownership. Unlike the traditional position under the TPA, this Act allowed an anomaly where an owner could claim exclusive ownership over their apartment while simultaneously holding rights in common with others over the common areas. However, the legislative error that crippled the Act was not this deviation, but a critical omission: the failure to incorporate the regulatory provisions contained in Sections 10 to 15 of the Maharashtra Ownership Flats Act (MOFA). By ignoring the regulatory framework that made the Maharashtra model functional, the Kerala legislature essentially built a car without an engine.

The Elephant in the Dark Room: The Section 2 Debate

The construction industry and legal service providers in the State debated the Act like a group of people trying to figure out an elephant in a dark room. The "elephant" in question was the statutory provision contained in Section 2 of the Act. Opinions were sharply divided: some declared that the law was merely optional, while others insisted it was mandatory. Strangely, the "optional" interpretation suggested that the choice to submit to the law lay with the promoter and the apartment owners—effectively giving the regulated the choice to be regulated. Those who claimed it was optional failed to look beyond the State borders for legal context or legislative intent. Had they done so, they would have realized that the "option" was a procedural trigger, not a license to opt-out. Had this been understood earlier, the law would have been applied decades ago, and the ownership rights of home buyers in Kerala would have been far better protected.

The Half-Dead Obligation

The provision for transfer of title under the Central Act was versatile; it catered not only to apartment buildings but also to plots and villas. In cases other than apartment buildings, the appropriate method is indeed to transfer the common properties directly to the Association of Allottees. However, regarding the management of these common properties, the Act preserved the jurisdiction of local laws. When this framework was applied to Kerala, it specifically insisted that the promoter has a legal obligation to ensure compliance with the provisions of the half-dead Kerala Apartment Ownership Act, 1983. Yet, in spite of this explicit legal obligation, the promoter community tried their best to ignore this law.

At this critical juncture, the High Court interfered not once, but twice. The first intervention occurred when a learned Single Judge directed the constitution of a committee to examine the Kerala Apartment Ownership Act with reference to the central RERA statute. The Committee returned with a finding that was as interesting as it was fatal. They concluded that the Kerala Act is repugnant to RERA and, therefore, should be allowed to die. In the language of the legislature, such a 'forced death' is executed by way of repeal.

The Division Bench Intervention and the First Command 

In the meantime, the situation attracted another interference, this time from the Division Bench of the High Court itself. In a Public Interest Litigation (W.P.(C) No. 15166 of 2024), the Court took specific note of the legal obligation cast upon promoters. Acting on the Court’s interim order, the Government issued G.O.(Ms) No. 6/2025/HSG on July 27, 2025. This was the first major blow: the Government observed that there was a "serious lacuna" in implementing the 1983 Act, allowing promoters to evade their statutory obligations. Consequently, the Order directed the Chairman of the Kerala Real Estate Regulatory Authority (K-RERA) to take all necessary steps to ensure that Clause 20 of Annexure A—which assures compliance with the 1983 Act—is "strictly complied with" by all registered promoters.

The Government's Final Word: A Mandate to Enforce 

Following this, the Government effectively overruled the death sentence proposed by the expert committee regarding the repeal of the Act. In its subsequent order dated December 11, 2025 (G.O.(Ms) No. 10/2025/HSG), the Government confirmed that the repeal of the Kerala Apartment Ownership Act, 1983 is "not warranted". Instead of burying the ailing statute, they have commanded it to walk. By reiterating the directions given in the July order, the Government has settled the debate: the half-dead law is now fully mandatory, and the regulator born to modernize the sector has been tasked with keeping the old regime alive.

The Reluctant Guardian 

In light of these Government Orders, one would expect the regulator to be proactive. However, a recent attempt by a stakeholder to ascertain the status of the Act's implementation through the Kerala Real Estate Regulatory Authority (K-RERA) yielded a disappointing response. This is a disturbing reality, considering that K-RERA is now the only authority explicitly bound by law and executive order to implement the apartment ownership framework. While the Government has successfully passed the buck to the Regulatory Authority, it remains to be seen whether the Authority will accept this mantle or continue to be a reluctant guardian of a law it did not ask for.

The Orphans of the Pre-RERA Era 

The regulatory framework of RERA comes with a strict chronological gate: it generally does not apply to projects completed before July 1, 2017. This creates a glaring anomaly. When the Government declares that the 1983 Act must be implemented through the RERA framework—specifically by tasking the K-RERA Chairman with enforcement—it effectively ignores the vast stock of housing built over the last four decades. The straight question, therefore, is simple: if the 'ailing' Act is to be kept alive only via RERA mechanisms, what happens to the home owners of projects that predate RERA? For them, the Government's order is a bridge to nowhere. These owners are left in the cold, forced to fight further and wage their own legal battles just to exercise the apartment ownership rights that the Act supposedly guarantees 

Conclusion: The Uneasy Resurrection 

With these Government Orders, the State has decisively ended the debate regarding the repeal of the 1983 Act. The "ailing patient" has been forcibly resurrected and declared fit for duty by executive fiat. Yet, a government order cannot magically cure a forty-year history of practical failure.  By choosing preservation over genuine reform, the Government has ensured that the real estate sector in Kerala will operate under a confusing regulatory system for the foreseeable future. While the statute book has been saved, it remains doubtful whether this forced resurrection will lead to actual consumer protection or merely prolong the administrative chaos of a law that never truly worked.