Some Frequently Asked Questions on Society Affairs

14
Oct

Q. Please advice is it possible to get Deemed conveyance of leasehold property. Society is paying lease rentals to the developer and has passed a resolution saying conveyance to be obtained on ownership basis. But the land is leasehold land. What happens after the expiry of the lease?? Flat gets automatically transferred to the flat owners or flat owners will have to vacate the premises?

Ans. Under Transfer of property Act, 1882, a right, title and interest in the immovable property can be transferred by two ways:

·         Freehold basis which means, the buyer get all the rights, title and interest in the property without any restrictions by executing sale or conveyance deed in favour of buyer by the seller? The seller or their legal heirs will have no control thereafter in the property.

·         Leasehold basis which means the use and occupancy of the immovable property is given by the owner to lease by executing a lease deed for a certain period to use and occupy on certain terms and conditions including the manner of use of such property and on payment of certain lease rent. So in order to answer your queries, we need to go through the lease rent executed between the owner and builder. In your case between the developer and society.

·         Any lease rights by paying proper compensation to the owner/lessor, one can get freehold rights.

·         In fact, in your case, I can make out that builder/developer has executed the lease deed in favour of the society and you are paying lease rent. Now society must be negotiating with the developer to give freehold rights which is possible.

·         In case, you are not able to do anything, in such case, the ownership of building will remain with you and land rights will remain with lessor. Till the building becomes completely dilapidated, irrespective of the clauses in the lease deed, owner cannot ask you to vacate the building

·         If he has to do so, he has to pay the compensation to you and the matter may go to court of law. Once the building due to dilapidated condition local authorities evict and demolish the building and mean time lease period has expired and is not lease period is not renewed, you will not be able to reconstruct the building.

 

 

Q: Is education fund payable by the society?

Ans: The Education fund norms are as follows:

·         As per new section 24A effective from 14.2.2013, societies need to collect education fund as per bye-laws. As per bye-laws of CHS, Rs.10 per member per month need to be collected and separate fund need to be maintained.

·         The society from this fund require to do the training and education of committee members, staff and members from the notified institutions; federations which has been done.

·         Section 24A also provides, education  fund at the rate notified, need to be paid annually  to the notified institutions and Federations but presently as per my knowledge  no such notification  to pay education  fund is published. So effective from 2013-14 onwards till proper notification  is issued, you need not pay any education fund to anyone but need to do the training and education at the society through notified bodies which has been done by paying  training fees

 

Q: In our society, there are quite a few members who have sublet their flats without submitting any docs viz agreement, police clearance, NOC payment etc to the society.  What action as per the bylaws, can the society take on such members?

Ans:

·         For any breach of bye-laws, the managing committee needs to issue showcause notice for levy of penalty including legal proceedings to expel from the society on persistent default.

·         The explanation and compliance in writing can be taken or call in SGM and after hearing levy the penalty and if required to file a case on cooperative court to evict the tenant etc. can be done.

·         Any legal actions depend on the response given by the members.  Even, the society can pass a resolution unless and until proper identity of the tenant is not submitted, the tenant may be restrained to enter the society compound.

 

Q: A society wants to collect refundable deposit from members, under what name can they collect the same and will it attract any service tax?

A: It will not attract service tax. You may call it as corpus fund for maintenance.

 

Q: Who is the authorized person to sign on share certificate?

A: As per the face of the share certificate as prescribed in form 1 the share certificate has to be signed by chairman, secretary and any one Managing  Committee member. However the managing committee can decide to authorize any other committee member to sign as well.

 

Q: Is it legal to make a structure on the Terrace for roofing.

Ans: Any construction be it temporary or permanent to be done has to take place only after permission of the planning department of the Local Municipal authority . The society has to apply for permission to pay necessary development charges as per DCR (development control rules) before any such construction.

 

Q: An Auditor can audit of any society for a maximum period of 3 years in a row. Whether this rule is applicable for all the societies irrespective of No. of members of that society OR it is applicable only to those societies having more than 100 members?

Ans: The auditor has to be changed after the third year of Audit. From the fourth year onwards the Society have to appoint a new Auditor. It's applicable to all types of society irrespective of the size of the members.

 

Q: One of our members of MC has sold flat. Can we select/elect another?

Ans: Once the flat is sold by any managing committee member, the Committee ceases to hold good. Even if the society has to appoint one committee member, as per the new election rules dated 11.9.14, the election has to be carried out by informing the registrar through the SCEA, who will depute person to conduct the election for one single seat.

 

Q: Please suggest what is the procedure to adopt the new Bye laws?

 

Ans:

1.       Pass General body resolution adopting the new Bye laws

2.       Two Copies of new Bye laws to be signed

3.       Copy of old bye laws to be placed on record

4.       Copy of notice agenda and minutes of the general body meeting wherein the bye laws has been adopted

5.       Send a adopted copy of new Bye Law to the Registrars Office or submit online.

6.       Filling up forms ( available on our website )

7.       Affix 50/- court fee stamp on that form

8.      Submit the form along with copy of New Bye Laws to the Deputy registrar

 

 

Q: If a society consists of 2 or more separate wings in one common compound under one common CHS Registration no., then can we split these wings into 2 or more separate CHS?

If Yes, what is the procedure?

Ans:  Under section 17 of MCS Act, by taking the General body meeting by majority resolution of 2/3rd members present, a proposal to divide into society can be done.

In case a lesser members want division but majority members do not cooperate, an application by minority members file application for division u/s 18 of MCS act 1960 before the Deputy registrar.

 

Q:  Last AGM in our society passed a unanimous resolution to penalize members for keeping plants in the balcony. Structural audit suggested that plants in balconies can adversely affect structural balance of building in the long run apart from spoiling the walls. Is such financial penalty on those who have still kept plants legal?

Ans: As per the new model bye law society is authorized  to levy penalty upto Rs.5000/- per year for any act done by the members against the interest of the society or against the Act,  rules, bye laws and resolutions passed by the society either in General  Body meeting or Managing committee.

Society may also warn that all damages to the building shall be recovered from him/her and only such member shall be held responsible for any mishap etc.

 

Q: If no Nominations are received for getting elected for the MC election what is the way out?

Ans: If till the last date fixed for filing nomination for the committee members are not received, the election officer, in the meeting called to declare the results of the election, can once again advice and request members to come forward to be part of committee.  If minimum members required to form the quorum of the committee meeting do not come forward, the election officer shall report the fact of not able to form the committee to the Deputy registrar who shall appoint an authorised officer to manage the day to day affairs for a period of 6 months and to arrange for fresh election. This will continue till proper committee is not constituted by the members.

 

Q: To adopt the new bye laws is it mandatory for 2/3rd of the total members of the society to attend the meeting or just 2/3rs of the members present in the SGM voting in favour is sufficient to adopt and pass resolution.

Ans:To adopt the new bye-laws, the notice of 14 clear days should be given. If there is a quorum of members at the scheduled time, the agenda for adoption of new bye laws can be taken and 2/3 of members present can decide by giving in favour of such adoption

If there is no quorum as per the agenda notes, meeting may be adjourned for half an hour and the members present in such meeting whether there is a quorum or not, the agenda items can be decided.

Thus, it is 2/3rd of the members   present who is required to pass a resolution to adopt new bye-laws

 

Q: There are many defaulters in our society who pays late maintenence charges. Till now we are charging 21% per annum simple interest penalty charges. But it becomes difficult and time consuming every month for calculation. So the committee has decided to pass a resolution in the coming AGM, charging interest flat rs 100 monthly on delay payments or 21% p.a whichever is higher. can this be passed with majority? Even after passing resolution can any defaulters make complaints against the society to deputy registrars?

Ans: Bye laws of CHS is very clear that no interest or fine or penalty under whatever name on defaulted dues can exceed more than 21% p.a. simple interest.  In case of any violation of this, the member can lodge a complaint against the society before the Deputy registrar.

 

Q: What is procedure for approval of accounts, whether auditor will give draft report, then committee will approve and office bearers sign and then send to auditor for his sign? Or office bearers will sign first then place in committee for approval?

 

Ans: Once the draft financial statements are ready the managing committee has to call for meeting in that approve the financials and draft audit report and then sign and give it to auditor for his signature.

By Punam Agarwal
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