• Encroachment of Common Space and Duct Space on our floor

All of our neighbors have encroached the common space on our floor. Out of the three, two of them have encroached the duct area by converting it into a storage room and then built safety doors to extend their apartment space and the third has taken up about 8-9 feet of the common space and built a large safety door and occupied the space. All of this was done in our absence in 2021 during the peak of the COVID pandemic while we were in another city during the lockdown.

When a meeting was held within the housing society around the end of 2021 the committee mentioned that this construction was done without the permission of the society and the committee will not and cannot take any action and told us to take legal action against our neighbors at our end. My parents decided not persuade this matter further as getting into legal action will supposedly incur a lot of time as well as money. Also, during the meeting, the rationale provided by one of the neighbors was that there are other people in the building who had made this and then proceeded to shifting the blame onto us indicating that we are at fault for not allowing them to do so earlier. There were also health issues given by the neighbors as pigeons entered from the duct area and the occupied common area, which frankly makes no sense to us as the windows could have simply be kept closed for dealing with that or a net could have been put as well. Their accusation was we did not allow them to put the net (which isn't true as it was never discussed) which is why they did this.

Personally, I am not satisfied with not taking any action and I do wish to take action against my neighbors against this illegal construction after a few years when I have more personal time. In the meantime I had some questions and would appreciate your insights on the same:

1.) Are the committee members of the housing society not allowed to take any action in this case? If so, then what is the point of even having a committee? I found this to be very strange
2.) If legal action is taken by us against our neighbors what is the duration taken to get the justice on this matter? Is it true that it will take several years and alot of money? What would be the range in terms of the costs incurred if legal action is considered?
3.) Are there alternatives to legal action in this case, such as, writing to the fire department, electrical department, municipal committee (BMC) or any other legal body for demolition of these illegal construction?
4.) Is there a set time period by which action is required to be taken after which it is too late? Currently we are too busy with our professional lives to be involved into this matter and would like to take this matter up a few years from now when we are in a better financial and professional position. We expected the society committee to take a swift action but that unfortunately did not work out.

I would really appreciate your guidance on this matter. Thank you for your time.
Asked 10 days ago in Property Law
Religion: Hindu

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7 Answers

MC can direct them to demolish illegal construction done 

 

2) if tre if they refuse file complaint against the neighbours before the municipalcorporation

 

3) you can also complain to the Registrar against illegal construction done in the society and the refusal of the managing committee to take any action,

 

4) You can also obtain court orders for demolition oftheir legal construction

 

5) There is no time limit for taking action

Ajay Sethi
Advocate, Mumbai
97220 Answers
7850 Consultations

1. The housing society is bound to initiate proper legal action to instruct the members to remove the encroachments made in the common place, if they are not taking any action you may issue a legal notice to the persons with a copy to the association.

2. You can first submit a complaint to the local civic body about this irregularity and deviation by construction in the common area, if they also don't respond properly then you can approach court of law with a suit for mandatory injunction against hoe people to direct the to remove / demolish the illegal structures raised in the common area which causes you disturbance besides depriving your easement rights,. 

3. Yes you can approach BMC with a complaint.

4. You may better take an immediate action if you are really serious about the issue because the more you delay the seriousness will be diluted.

T Kalaiselvan
Advocate, Vellore
87420 Answers
2348 Consultations

1. if the committee is not taking action, write to the District Deputy Registrar of Co-operative societies and to the BMC 

2. no good lawyer will commit or predict any timeline for getting a judgement. The fees of advocates are not standard and vary from advocate to advocate

3. write to the BMC

4. illegal extensions and construction give a continuous cause of action to pursue legal steps for their removal

Yusuf Rampurawala
Advocate, Mumbai
7721 Answers
79 Consultations

  1. You can and must initiate legal action against your neighbors.  You have to move the cooperative court and, other than your neighbors  you'll have to include your society too as a defendant
  2. Your society is legally bound to take action against encroachments. You are entitled to move the consumer court against your society for deficiency in services. 
  3. However, you need to be the owner of your flat and member of your society. If you aren't the owner (your parents being the owners), you don't have any locus standii to avail of the remedies adviced in 1 and 2. In such a case,  at best you can just lodge a complaint with the municipal authority against the illegal encroachment, as a concerned citizen 
  4. You need to visit me for further exhaustive consultation. I'm based in Mumbai /navimumbai, so it shouldn't be much of an issue for you to visit me for such consultation. 
  5. ९८२०८९७८८४ (nine eight two zero eight nine seven eight eight four) 

Netra Mohanchandra Pant
Advocate, Navi Mumbai
1581 Answers
5 Consultations

You can file complaint to Dy registrar under bye lawye of societies and the action will be taken 

Prashant Nayak
Advocate, Mumbai
32660 Answers
206 Consultations

Dear Client,

In cases of encroachment on common and duct spaces, the housing society committee generally takes care of the matter and prevents unauthorized constructions under the Society Bye-laws. The committees generally avoid taking action; members have to seek legal remedies. If you choose to litigate, it is a case against the neighbors that would take years in years, the cost of which will vary between ₹50,000 and ₹2,00,000, depending upon the complexity and legal representation. Instead, you may write to the Municipal Corporation (BMC) demanding demolition of illegal structures. If it is an encroachment violating safety norms by blocking ventilation or escape routes, you can approach the Fire Department or Building Department. No particular limitation period applies to filing cases to get encroachments removed, but the delay will certainly reduce the potency of your complaint. You document all the violations and contacts with violators, and you can even meet a legal or architectural expert to assess violations. When prepared, you can lodge them with the municipal or even file them in court based on the records you prepared.

Hope that this helps you to solve your problem.

 

Anik Miu
Advocate, Bangalore
10285 Answers
121 Consultations

Dealing with encroachment of common spaces in a housing society is certainly a complex issue that requires careful consideration of legal and community relations aspects. Here's a detailed analysis to address your questions and concerns:

1. Role and Responsibilities of the Housing Society Committee


  • Committee's Authority: Typically, housing society committees have the authority to manage common areas and ensure that rules and regulations are adhered to by all members. They are generally responsible for maintaining order and can take action against unauthorized constructions or alterations in common areas.

  • Inaction Explained: If the committee claims they cannot take action, it may be due to a lack of clear guidelines in the society’s bylaws or potential conflicts of interest. However, this does not absolve them of their general responsibilities. They should at least facilitate a resolution or enforce the society's rules.

2. Legal Action and its Implications


  • Duration and Cost: Legal action against unauthorized constructions can indeed be lengthy and costly. The duration can vary widely, often taking several years depending on the complexity of the case, the court’s backlog, and the efficiency of legal proceedings.

  • Cost Estimates: Legal fees can range from a few thousand to several lakhs of rupees, depending on the lawyer’s expertise, the nature of the case, and the length of time it takes to resolve.

  • Process: You would need to file a suit in civil court against the neighbors for encroachment and possibly against the society for failing to enforce its rules. This would involve proving the unauthorized nature of the constructions and demonstrating harm or potential harm to your property rights or safety.

3. Alternatives to Legal Action


  • Regulatory Complaints: Reporting the issue to local municipal authorities (like BMC in Mumbai), the fire department, or the electrical safety department can be effective. These bodies can issue notices for unauthorized constructions, especially if they violate safety norms.

  • Mediation: Before going to court, consider a mediation process with a neutral third party, which can help reach a settlement more amicably and quickly than litigation.

  • Society Meeting: Propose another general body meeting with the agenda of addressing these unauthorized constructions through collective decision-making.

4. Statute of Limitations


  • Timeliness: In general, it’s better to take action sooner rather than later. While there isn’t a strict statute of limitations for such civil disputes, the longer unauthorized constructions are left unchallenged, the harder it might become to argue that they are problematic or to have them removed.

  • Establishing Precedents: Delaying action can lead to a tacit acceptance of the status quo, potentially setting a precedent that might encourage further violations.

Recommendations


  1. Document Everything: Keep thorough records of all constructions, correspondence with the society and neighbors, and any discussions or meetings held.

  2. Consult a Lawyer: Obtain legal advice to understand the full scope of your options and the best course of action based on the specific details of your situation.

  3. Community Engagement: Engage with other residents who might also be affected by these issues. A collective approach can often have more impact than individual actions.

  4. Plan Financially: If you decide to pursue legal action in the future, plan for the potential costs now. Setting aside funds for legal fees and related costs can make the process less burdensome.

Taking action on such issues can be daunting, especially with the pressures of professional commitments. However, understanding your rights and the available avenues can help you make informed decisions at the right time. Engaging a legal professional to handle the matter when you are ready can also relieve some of the burdens and ensure that your interests are effectively represented.

Shubham Goyal
Advocate, Delhi
322 Answers

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