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TOI
Legal Eagle (Anup Shah)
Comment @
Concept of "common areas" - Is not the prevailing confusion ..
vswami 2 June .
In the May 31 Issue of TOI Supplement on property, there are two items of common interest, in the column by Anup Shah, a known law expert.
The expert’s answers to two of the readers’ queries should be of common concern to every apartment owner and /or a non-owner resident :
1. Rohini's query
2. 'A Reader's' query -(immediately following one)
These pertain to areas, more often than not, giving rise to disagreement, problems, altercations, also to disputes leading to litigation, among the owners and other residents in an apartment complex. Hence, in one’s strong view, any solution inuring for the 'common' good has to be necessarily found not outside of but within the frame work of - that is, by keeping in full focus and in the light of, -the governing law.
Own observations (in brief, in that order):
1. It is honestly believed that, - rather it may be the conviction of anyone having a clear and close understanding of the law, particularly of the concept of 'common areas' as embodied therein, - any bye-law licensing anyone of the owners or residents in an apartment building to make personal use (as opposed to common use) of any such area as the exteriors of the building , -which , as per the law, is part and parcel of the common areas, hence required to be 'maintained' by the joint body (association) of co-owners- should be considered to have no leg to stand on; if so, would be non-est, rather a non- starter, any such license , if given, being prima facie repugnant to the law.
2. The given apartment(s), not having been made clear by the querist, may require to be presumed (which the expert also seems to imply in his answer) to be one of those very rarely come-across buildings in Bangalore. Reference is to the ones which have strictly followed the special law on apartments. That is, -not only the Act but also all related rules and regulations, of a material nature; further, both by the promoter-entity and its purchasers.
If so done, one can see no sound reason or logic why or how "non-members" (i.e. other than the apartments' owners) can rightly claim to be not bound by, - or will have a valid defence to refuse to abide by, a decision of the owners, taken unanimously, or by a majority.
In any view, at least in principle that must be so; without going into the merits or otherwise of the kind of 'charge' in question and decided upon. It is, in this context, that compliance with the legal requirement of Form B assumes significance and importance.
Contrary to the impression given in certain quarters, such of the provisions of law in force as relate to “common areas” cannot be considered to suffer from any lacuna; much less of a material nature, as to enable anyone to use it as a valid defence for encroaching upon , by making personal use, of any part of the “common areas” within the meaning of the law.
KEY Note : Earlier Post herein, excusively on the topic of "common areas", may be found to provide the necessary backdrop.
The expert’s answers to two of the readers’ queries should be of common concern to every apartment owner and /or a non-owner resident :
1. Rohini's query
2. 'A Reader's' query -(immediately following one)
These pertain to areas, more often than not, giving rise to disagreement, problems, altercations, also to disputes leading to litigation, among the owners and other residents in an apartment complex. Hence, in one’s strong view, any solution inuring for the 'common' good has to be necessarily found not outside of but within the frame work of - that is, by keeping in full focus and in the light of, -the governing law.
Own observations (in brief, in that order):
1. It is honestly believed that, - rather it may be the conviction of anyone having a clear and close understanding of the law, particularly of the concept of 'common areas' as embodied therein, - any bye-law licensing anyone of the owners or residents in an apartment building to make personal use (as opposed to common use) of any such area as the exteriors of the building , -which , as per the law, is part and parcel of the common areas, hence required to be 'maintained' by the joint body (association) of co-owners- should be considered to have no leg to stand on; if so, would be non-est, rather a non- starter, any such license , if given, being prima facie repugnant to the law.
2. The given apartment(s), not having been made clear by the querist, may require to be presumed (which the expert also seems to imply in his answer) to be one of those very rarely come-across buildings in Bangalore. Reference is to the ones which have strictly followed the special law on apartments. That is, -not only the Act but also all related rules and regulations, of a material nature; further, both by the promoter-entity and its purchasers.
If so done, one can see no sound reason or logic why or how "non-members" (i.e. other than the apartments' owners) can rightly claim to be not bound by, - or will have a valid defence to refuse to abide by, a decision of the owners, taken unanimously, or by a majority.
In any view, at least in principle that must be so; without going into the merits or otherwise of the kind of 'charge' in question and decided upon. It is, in this context, that compliance with the legal requirement of Form B assumes significance and importance.
Contrary to the impression given in certain quarters, such of the provisions of law in force as relate to “common areas” cannot be considered to suffer from any lacuna; much less of a material nature, as to enable anyone to use it as a valid defence for encroaching upon , by making personal use, of any part of the “common areas” within the meaning of the law.
KEY Note : Earlier Post herein, excusively on the topic of "common areas", may be found to provide the necessary backdrop.
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