I have a few questions regarding the Sale Agreement, Sale deed, and Association by-laws. The matters of concern are maintenance charges and club house access. Our society is a villa project with two sizes of plots. It is located in Bangalore. Hence the questions are with respect to laws applicable in Karnataka.
Before stating the questions below here are some relevant information and clauses from the sale agreement and sale deed.
Regarding common area expenses:
In sale agreement:
9. SHARING OF COMMON EXPENSES:
9.1. The Purchasers shall pay to the VENDORS/ DEVELOPER the common expenses proportionate to the area of the Schedule ‘B’ Property for upkeep and maintenance of the common areas and providing common facilities from the date of execution of the Sale Deed or from the date of expiry of 10 days period from the date of notice sent to Owners/s to receive possession of the Schedule ‘B’ and ‘C’ Properties, whichever is earlier.
In sale deed:
7. COMMON AREA and MAINTENANCE :
7.1. The purchaser from the date the Schedule C Villa is handed over shall be liable to proportionately share and pay the common maintenance expenses incurred by the developer or the agency appointed by the developer for maintenance of all the common areas and facilities in society. Note: Schedule 'B' property is the plot. Sale deed states to share the common maintenance proportionately but does not define the proportion. The sale agreement clearly defines the proportion to be area of the Schedule 'B' property.
Regarding owners' association:
8. OWNER'S ASSOCIATION:
8.1. The Purchaser hereby agree and undertake to members of the proposed Owners Association to be formed in accordance the provision of the law, from time to time sign and execute all applications for membership and other papers, Bye-laws and documents as may be necessary to form the Association and run the Association. 8.2. The Purchaser shall observe and perform all the Bye-laws and all the rules and regulations of the said Owners Association/Society and proportionately share the expenses of running the Association and its activities.
Now the questions are:
Can the association make bye-laws in violation of clauses of the sale agreement/ sale deed? That is if sale agreement states to share the common expenses proportionately to plot area, can the association make by-laws that every house will pay equal maintenance? Can the association interpret the clause in sale deed for sharing proportionately to share in equal proportion by each house (though it is written proportionately and not equal proportion)? The clause 8.2 about owners association also states to share common expenses proportionately. It also states that purchaser will observe and perform all the Bye-laws and all the rules of the association. Does it mean, if association makes a bye-law that all houses pay equal maintenance, it will take precedence over the clause in sale agreement/ sale deed about sharing maintenance proportionately?
In fact association is already demanding that each house pay equal maintenance. There is overwhelming majority of bigger houses, more than 80%, and they can easily pass any bye-law as it suits them financially. Do the owners of smaller houses have any legal standing against this if they take legal route?
