Taking over maintenance from builder

It is basic law of principle that no agreement against the provisions of existing law is valid.

Herein this case, though you the flat owners signed an agreement with the builders agreeing them to maintain the apartment for 5 long years, it is illegal and not executable since the Apartment Act prescribes time limit to the builders  for forming an association of apartment owners and hand over the amenities and maintenance to the said association.

Each apartment complex has its own apartment owners association for maintenance of apartment and its amenities. But before formation of apartment owners association, it is duty of builder to maintain the apartment and its amenities. Most developers provide a corpus fund for maintenance of apartment and its amenities. The maintenance will be carried out by the Builders till the formation of Apartment Owners Association. After completion of project and formation of apartment owners association, builder need to handover left over money, audited accounts of the maintenance fund and interest earned and builder has to handover apartment and its amenities to apartment owners association.

Hence, the agreement entered between the Builder and flat owners is void and illegal.  The flat owners now can form into an association/society irrespective of the above agreement.

Please state where in India is your building? The law changes from State to State.

@Dr Ramani , It is in Bangalore , Karnataka. 

@Mr Ravinder and @Ms Saleema , Thanks for your reply. Please let me know which is right forum to approach . Shall we go to consumer court or some other institution ?

For what.  What relief do you want and against whom.

I want to oust builder . I want builder should hand over maintenance to owner's association. Owner's association has already been formed couple of years back. 

The association has to give a legal notice to the Builder to Give a legal notice to the handover the Accounts, charge, cash (Maintenance amount) available with the builder to the Association within one month.  If there is no response the the association has to file a civil suit against the Builder  for mandatory injunction to handover the Accounts, charge, cash (Maintenance amount) available with the builder to the Association along with damages and legal expenses. You may ask for interim injunction to suspend his powers immediately from the date of filing of the suit and for handing over the charge to the association, pending disposal of the main suit. 

I agree with the views expressed by learned advocates Ms. Saleema Kabeer and Mr. Ravinder on the subject issue.  The builder cannot hold possession of the building for a long time after completion of construction of entire flats, especially not beyond two years and the flat owners have to form an association within that period, upon which the builder has to hand over the entire charge to the association including accounts the corpus fund held by him and other contingent funds.  Thus, on his refusal to hand over the building to the association, legal action as suggested may be processed against him including cost for damages due to delay.  The association, in its AGM or in an emergency meeting should decide about the subject by passing a resolution.

Thanks Mr Ravinder and Mr Selvan. I want to know approximately how much the entire process will cost. Is it possible for you to give a rough estimate? 

It goes without saying and it is necessary that all apartment owners should together act as one man when dealing with the builder. For this purpose it is necessary to create a body which can sue and which can be sued. In order to achieve this all the apartment owners together form an association and register the association. There are at least 3 or 4 types of association, which you can form

(1) A Co-operative Housing Society.

(2) An association under the Karnataka Ownership Flats Act, 1972.

(3) An association registered under the Societies Registration Act of Karnataka.

(4) An association with bye-laws registered with the Registrar of Assurances.

I have given the list in decreasing order of effectiveness.

1.A Co-operative Society will be under the Co-operative Societies Act of Karnataka. The Act will have many do's and do'nt's, which are necessary for effective control. In Maharashtra the co-operative department is very big. There is an Assistant Registrar in charge of each Municipal ward in each city. I do not know how good things are in Karnataka.

2. Karnataka has an Ownership Flats Act. I have attached a copy of the Act. It is very good. It defines the title of each member to his apartment. Registering and de-registering under the Act are optional. Registration under this act is also by the Co-operation Department.

3. Registration under the Societies Registration Act is intended for voluntary associations and for charitable purposes. In Maharashtra it is mandatory for Societies registered under the Act to register under the Public Trusts Act also. Registration under PTA creates trustees who are responsible to account for the properties of the trust. I do not know the position in Karnataka. Anyway it is my opinion that it is a weak Act.

4. Registering with the Registrar of Assurances do not serve any purpose except that you have a registered document which can be produced in any court of law just as any agreement between/among parties.

I do not know how many members you have. You contact at least 5 to 10 members who will take active interest and are willing to spare their time. You get together and decide to form an Association. You also decide which type of registration you want. Choose a provisional name to the Association and call a meeting of all the members. It is necessary that 100% of the members join the Association. At the meeting you confirm or choose another name for the Association, decide under which act you should register and elect or nominate a provisional managing committee of 4 or 5 members and also get a skeleton memorandum of association signed by  all the members. Members should give their full name, occupation, residential and office addresses, flat no. and telephone numbers including mobile numbers. It may be necessary for you to meet for more than once to do all these. Door to door canvassing also will be necessary.

If you decide to register under (1) or (2) go to the Co-operative Department's office in Bangalore, meet an appropriate officer or staff member and get advice on the procedure and forms for formation of the association. They may also know lawyers who are experienced in advising on registration. If you get a good lawyer he will take care of everything including any legal fight with the builder if necessary.

If you get full co-operation from everybody, you are also active and resourceful and the builder does not resist,  you may be able to complete everything in 3 to 6 months. Otherwise it can take years.

Remember that you will need money for all these. Your memorandum of association should have provision for collecting funds from the members. You assure the members that accounts will be rendered for all expenses.

Good Luck. Take the attitude "Never Give Up".