It is necessary to pay maintenance charge for welfare and functioning of society. Association needs to get it registered but it is no ground to deny maintenance to the association
RWA Maintenance Charge Recovery
In beginning of 2015, the developer of our housing complex gave possession and formed an adhoc committee through election as per the terms and conditions in the brochure. The adhoc committee was given the task to register the society within six months from the formation of the association, if not, the developer would leave the site in AS-IS-WHERE-IS condition. The adhoc committee failed to register the society due to infighting between the managing committee members and the developer transfer the responsibility of maintenance of the society on the adhoc committee. In 2016 the President of the adhoc committee declared to hold an election as they cannot progress due to infighting. The Secretary filed a writ petition objecting such election in High Court, but the petition was dismissed. The 2nd adhoc committee was elected accordingly in 2016 and the 2nd adhoc Committee started the process of registering the society. However, in the AGM 2017, owners raised concern about depleting association fund and a resolution was passed to collect provisional maintenance charge from all owners as per the proportionate share in the property. Though, few owners denied paying maintenance charge on the pretext that the association is not registered, they keep taking all benefits from the association. However, majority owners paid the maintenance charge and the adhoc committee circulated audited statement of accounts at the end of each financial year. In Nov 2019, the adhoc committee registered the association under WBAO Act, 1972 and new managing committee is elected in Feb 2020 as per the act and took handover from 2nd adhoc committee including assets and liabilities. Few of the owners who have not paid maintenance charge till date, approached the association to pay maintenance charge from Feb 2020 and denied to pay the old dues on the same pretext that the maintenance charge levied by unregistered committee need not to be paid and therefore their share of common expense during the period of unregistered association stands null and void. Now, question is, is it correct in the eye of law, not to pay maintenance charge and stay at the cost of other owners just because society is not registered? If not, how to proceed to recover the maintenance charge for the period before registration of the association? I solicit your expert views on the matter along with relevant judgement reference.
Asked 4 years ago in Property Law
Religion: Hindu
16 Answers
1. Well, technically each flat owner is responsible to contribute maintenance charges from the date of possession of the flat. Non registration of flat owners association is no excuse either lawfully or otherwise.
2. Now the problem lies elsewhere. The non registered association having no faith among the flat owners can not take any steps to recover its dues as well due to lack of statutory recognition.
3. Presently the association is a statutory arm of the all owners to impose CAM as per its bye laws ( proportionate to the size of the flat) and collect charges.
4. The bye laws as per the WBAOA is clear as well on the consequences if a certain flat owner defaults in paying CAM.
5. However such measures can be taken only for default from the date of formation of association and not for past dues under the Acy.
6. However a civil suit for recovery of money can be filed.
Feel free to contact for further assistance.
If the apartment owners stayed during such period when the society was not registered they have to may the maintenance amount irrespective of the problems. They too were present when these issues existed and hence they are a party to all that which happened. They cannot have a share in only the things which are good for them.
@D.Barman Thank you for your detailed response. The registered committee took over bank balance, FDs from the unregistered committee along with all maps, technical drawings, communications, contractual agreements including other financials. The registered committee cannot deny payment to vendors or employees employed by the unregistered committee for the maintenance of the association and the said payment is made from the bank balance handed over by the unregistered committee. When the registered committee took over from the unregistered committee, it includes both assets and liabilities and the payment made for different common expense cannot be segregated by unregistered or unregistered association. Can the register committee only take assets and deny taking liabilities? If the transfer of asset and liabilities are legally valid, such non-paying owners by virtue of handover of asset and liability comes into its account books as debtors. In such case, please point to the technical problem for the registered committee to recover the dues prevailing from preregistration tenure?
Asked 4 years ago
No they need to take care of assets and liabilities.
As per your aforesaid facts I can see a lot of irregularities. you need to file a complaint to dy registrar for the same
Is there any handover document which indicates that the assets and liabilities both have been taken by the the new management committee which is registered in case it is there then the committee is legally bound to pay all the liabilities another case those were having outstanding dues old unregistered society have to claim their are outstanding amount by filing money suit against the new committee.
Please issue legal notice to all defaulters for the payment of dues prior to registration of Society and during the tenure of First and second ad hoc committee for recovery of dues before Civil Court.
- As per rule, after getting the possession of the flat , each member is bound to pay the maintenance charge for the welfare of the society , and only on the ground of unregistered society , they cannot be exempted to pay the same.
- Legally an unregistered society cannot force the members to pay maintenance charge.
- Hence, , the Society can pass resolution for the same in the GBM , and thereby made each and every members to pay the maintenance charge from the date of getting possession from the builder.
- Since, now already there is a registered society , then all the members are bound to abide the rule of the society , otherwise the society can recover the arrears after filing a recovery suit.
File suit to recover maintenance charges from members who have not aid maintenance
2) resolution was passed in AGM to recover maintenance from All members
3) they had agreed to pay maintenance
4) pass resolution in AGM to sue defaulters for recovery of dues with interest
Issue legal notice to defaulters to pay dues with interest
if they fail to pay sue them to recover dues with interest
Generally the RWA takes charge of all the affairs which are existing as well pre existing.
I have not disputed the same .
I have only expressed the limitations the registered association may have to recover the past arrears.
However on detailed information of the affairs of your association I may help you further to resolve the deadlock, if any.
When the other committee from other committee whether register or not registered, takes charges, it shall be will with benefits and liabilities. New committee cannot refuse to complete liabilities.
Committee can proceed same action which prevail in the rules against defaulters.
The claim of the members who have not paid the maintenance earlier for some reasons is unjustified.
They had been enjoying the common maintenance services provided by the association till such date hence they are liable to pay the same including the arrears.
You s a association issue a legal notice demanding the arrears of maintenance amount and can give them relaxation to pay them in installments also.
Failing to respond, a money recovery suit also can be filed against them as per bylaws of the association.
Whether an unregistered or registered association, the members are liable to pay the maintenance charges to the association in order to enable the association to maintain the premises by making goo dd the expenses incurred for the purpose.
You may proceed as suggested in my previous post for recovery of arrears amount from the defaulted members.
1. No it is not at all legally correct to refuse to pay the maintenance charges on e plea that the Society is not registered.
2. The new committee will have to file a Money Suit claiming payment of the arrears with interest till the payment is received from them.
3. The provision of basic facilities like supply of water, electricity etc. can not be withdrawn from them as per the Apex court order.
1. Registered society is not formed immediately after the construction of the building is completed and possession is handed over.
2. Your developer and the the members have followed the standard operating procedure to maintain the flats by forming ad-hoc committee before the Society is formed and registered in due course.
3. Those members had availed the services provided by the ad-hoc committee for which they are liable to pay the maintenance.
No they cannot deny the liabilities. Issue notices to them and if they refuse a case can be registered against them on behalf of the registered society.