Rajesh Patil 26 January 2023

Are apartment associations responsible for repairing leaks inside apartments?

I have an apartment in an association of apartment owners. The association is registered under the Maharashtra Apartment Ownership Act 1970. Currently, I am working as president of the board of managers of the association. There is a leakage dispute ongoing in our association. The lower apartment has leakage from the upper apartment’s bathroom. The owner of the upper apartment refuses to fix the leak. As per the bylaws, every owner must perform all maintenance and repair work within his own unit. But the upper apartment owner is not cooperating with us at all. The owner of the lower apartment submitted a written complaint to us about this issue. He is saying that the board of managers has the right to make emergency repairs to prevent damage to his apartment. He is showing a few sections from the Maharashtra Apartment Ownership Act 1970 which are as follows:

Section 6 subclause 6

The Association of Apartment Owners shall have the irrevocable right, to be exercised by the Manager or Board of Managers, to have access to each apartment from time to time during reasonable hours as may be necessary for the maintenance, repairs and replacement of any of the common areas and facilities therein or accessible therefrom, or for making emergency repairs therein necessary to prevent damage to the common areas and facilities or to another apartment or apartments.

Section 9 Para 3

Provided further that, no labour performed or materials furnished with the consent or at the request of an apartment owner or his agent or his contractor or sub-contractor shall be the basis for a charge or any encumbrance under the provisions of the Transfer of Property Act, 1882, against the apartment of any other property of any other apartment owner not expressly consenting to or requesting the same, except that such express consent shall be deemed to be given by the owner of any apartment in the case of emergency repairs thereto.

Can anybody help me to understand what is written in the above sections in simple language?

Is leakage considered emergency repair?

Does the board of managers have the right to repair internal leaks?

Who will pay for the repair of the leak?

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8 Replies

Sudhir Kumar, Advocate (Advocate) 26 January 2023

Very long narrative. No time to read all.

Are you a cooperative society or association of residents having independently purhcaed flats from Govt/Private housing body.

what are the bonafide functions of the Association as per Constitution of the Association.

Sreeni (Retd) 26 January 2023

Association s not responsible to solve internal issues unless the problem covers the whole building. The lower apt owner has to solve the internal problem by himself through skilled workers available online nowadays

kavksatyanarayana (subregistrar/supdt.(retired)) 26 January 2023

Yes. For his own flat repairs shall be paid by him, and if the common area, the association shall bear this.

Dr J C Vashista (Advocate) 27 January 2023

Q 1 Is leakage considered emergency repair?

Ans: Yes, it is an emergency repair. However, Section 6(6) as well as Proviso to Section 9 of MAO Act, 1960 are inapplicable in the instant case.

Q2 Does the board of managers have the right to repair internal leaks?

Ans: Yes, the association is liable to get it repaired, if upper floor owner is not getting it done.

Q 3 Who will pay for the repair of the leak?

Ans: It will be done from common funds and charged from the upper floor owner.

Advocate Bhartesh goyal (advocate) 27 January 2023

Well explained by Dr.J.C.Vashista, i agree with him.

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer) 27 January 2023

Leakage from the upper floor plumbing system to the lower floor is a tricky problem and it is difficult to fix the responsibility. One has to go through the history of the occurance. When a building is built, the builder gives a guarantee for any defect in construction for a certain period. If the leakage occurs during the guarantee period, the builder is responsible. The association should ask the builder to repair and if he does not do it, the association should carry out the repairs and claim the amount from the builder. If after the guarantee period, leakage happens due to normal and wear and tear, the association should do the job. A leakage is not an occurance within the flat. It is on the border between the upper and lower flats. Hence it is the responsibility of the association. If the leakage occurs due to anything done by the upper floor member, then he is responsible to repair the defect. If he does not do it, the association should do it and recover the cost from the upper member. In the B. S. Joganand vs. Mithul Co-operative Housing Society and Bhalchandra Patil case, the consumer court held the Society responsible and ordered them to pay the cost. B. S. Joganand was the lower floor member and Bhalchandra Patil was the upper floor member. The leakage was allegedly due to some work done by Bhalchandra Patil on his floor. But he was let off because he was not a "Service Provider" under the Consumer Protection Act. It is to be presumed that the Society can recover the cost from the upper floor member the same way and under the same law as it would recover the other dues from members.

Sudhir Kumar, Advocate (Advocate) 29 January 2023

Originally posted by : Sudhir Kumar, Advocate

Very long narrative. No time to read all. Are you a cooperative society or association of residents having independently purhcaed flats from Govt/Private housing body.what are the bonafide functions of the Association as per Constitution of the Association.

Not able to agree or disagree with any of the above views as this vital information is not available.

Dr. MPS RAMANI Ph.D.[Tech.] (Scientist/Engineer) 01 February 2023

What is necessary is to apply plain common sense. If there is any law that contradicts common sense that law should be thrown out. Whether it is a co-operative society, a limited company, a private trust or any other thing, who is responsible, is the same. If there is no common body or a common authority like, say, a landlord, it is anarchy. I invite you to my profile