Query : Ours is a condominium registered under the Maharashtra partners Ownership Act-1970.  There are six flats and a terrace in the building. When the condominium was formed the landlady retained the top floor and the terrace in her possession. As per the declaration the share of the common expenses of each flat is 15per cent (6flats*15 percent=90 per cent) and that of the terrace is 10 per cent Thus the share of the Landlady is 25 per cent (15 per cent for the flat + 10 per cent for the terrace).

However, through oversight, since inception of the condominium, we have boot charged the landlady her share of common expenses of 10 per cent for the terrace which is in her exclusive possession. we would like to know if we can now raise the bill for the entire period since inception and if not since what period we can start charging her the same.

Incidentally the said landlady is staying abroad for the last 15-20 years and her flat is occupied by her relatives. They neither pay the share of the common expenses of the flat they occupy, which belongs to the landlady, nor they are inclined to disclose the where abouts of the landlady. The amount are in arrears since 1993 onwards.

For your information the property Tax Bill for the entire building still continues to come in the name of the former landlady and as such our maintenance bill also includes the property tax for each flat.

We are in the process of replacing the lift with a new one for which the bill is already raised for which all the members have contributed their share but contribution from the landlady for her share of 25 per cent is not forthcoming.

The terrace which belongs to the landlady needs extensive repairs as there are cracks resulting in leakages throughout the building including the lift room. A the landlady is not in India there is no way the terrace can be repaired.

Now we, the members of the condominium, would like to resolve the matters through legal channels. We would like to know whom we can approach for reversal of our grievance/complaints against the defaulting memner. Further please advice whether we can debar the persons occupying the flat of the landlady from using the new lift to be installed as they have not contributed their share and also whether we can permanently close the lift opening on their floor.

Also we would like to know whether there is any way by which we can disconnect their water supply.

Kindly give a suitable solution whereby we can compel the occupants of the flat to pay the pending dues.

Divyakanth Mehta :

It will be necessary to find out along with condominium whether any declaration or deed of apartments or the floor plans have been registered as required under section 13 of the Maharashtra Apartment Ownership Act.

The said Act Provides that there should by bye-laws and the administration of every properties are governed by-laws and a true copy is required to be annexed to the declaration. On the basis of that bye-laws, the administration of all your properties can take place.  In the said Bye-laws, it must have defined the common expenses which each apartment owner is required to contribute. However, if the same is not provided in the bye-laws, the same has been defined under Section 3(g) of the said Act. According to the definition given under the said Act, the common expenses means-

i) All sums lawfully assessed against the apartment owners by the association of apartment owners;

ii) Expenses of administration, maintenance, repair or replacement of the common area and facilities;

iii) Expenses agreed upon as common expenses by the association of apartment owners;

iv) Expenses declared as common expenses by the provisions of this Act, or by the declaration or the bye-laws Therefore, on the basis of the bye-laws as well as according to the provision of the said Act, the board who is entitled to manage the property is entitled to recover the common expenses from each apartment owner. The reason behind it is that each apartment owner is entitled to a undivided interest in the common areas and the facilities in the percentage expressed expressed in the declaration.  The lift facility can be considered as common facility and therefore you can recover the expense to the extent of percentage as provided in the declaration. The common expenses can be charged from the apartment owner according to the percentage provided in the declaration of the common areas and facilities.

Section 20 of the said Act provides that every apartment owner or purchaser shall be jointly and severally is liable for all unpaid assessment for his or her share pf the common expenses relating to the apartment.  There will be a board of management which is required to manage the property and recover from each apartment owner the common expenses. The decision of the board of managers becomes final and binding upon each member.

Section24 of the said Act provides that all the apartment owners whomsoever is submitted to the provision of the said Act and to the declaration and the bye-laws of the association of apartment owners will be bound by the decision agreements and determination lawfully made by the association of apartment owners as provided under Section 24 of the said act.

You will be therefore entitled to recover 25per cent share towards the common expenses from the landlady. If the landlady is being one of the apartment owner refuses to pay, action can be taken by the manager or by the board of managers on behalf of two or more apartment owners against such landlady. It will be interesting to note that the legislature has specifically preserved the right of apartment owner to take action against the defaulter apartment owner without limiting the right of any apartment owner for common areas and facilities.

As regards the assessment you can recover the municipal taxes if paid by other apartment owners on behalf of  the landlady. Section 18 of the said Act special provision is made for the separate assessment. The said section provides notwithstanding anything to the contrary containing in any law relating to local authorities, each apartment and its percentage of undivided interest in the common areas and facilities appurtenant to such apartment shall be deemed to be separate property for the purpose of assessment of property tax which will solve your problem.

As regards 25per cent share of the landlady in respect of the replacement of the lift and the repairs to the terrace, you may recover from the landlady and there is a charge aver her apartment. Section 19 of the said Act provides that all the sums assessed by the association of apartment owners but unpaid for the share of the common expenses chargeable to her apartment and such charge will be prior to all other charges save and except the charge of the government for payment of taxes. You cannot disconnect the water supply to the said flat. As pointed out herein above, you are entitled to recover the water charges from such apartment owner and if she fails to pay, the association or the managing committee has charge over it.

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