When an owner makes a nomination of a flat, apartment or any real estate property, the nominee only becomes a caretaker of the said property and cannot make an ownership claim in the unfortunate death of the owner without additional documentation that substantiates this claim. In most cases, such documentation is a succession certificate, legal heirship certificate, a registered and probated Will or a release deed from any immediate legal heirs.
 
The owner also has the legal right to change their nomination at any moment. Such a subsequent nomination will substitute and override the earlier nomination. Therefore, the managing committee of a cooperative housing society (CHS) should always consider the most recent nomination when initiating the transfer process and completing the necessary due diligence.
 
Sometimes, a managing committee may fail to perform their duties diligently or abuse the power their position grants. But this does not mean that a member should stop paying the maintenance dues on time as a form of protest. This will only reflect poorly on your record and mark you as a defaulter in the Society. Always follow the proper procedure to redress a grievance, either with a written complaint to the Society or escalation to the deputy registrar of cooperative societies (DRoCS).
 
This week, I will address one such problem: the managing committee unnecessarily delayed the transfer of a flat and the member made the mistake of protesting their wrongs by not paying the maintenance dues. I will also address a case where the municipal corporation incorrectly levied a property tax bill and a problem where the managing committee has refused to allocate parking spots to the Society's residents.
 
Managing Committee's Failure To Transfer Flat to Nominee after Death of Owner
 
Question: My mother made a nomination in 1975, nominating me and my elder brother as her successors. Subsequently, when my brother was well-settled and had purchased a separate house, she changed the nomination in 1990 to my sole name and also made a Will to substantiate this. My brother passed away in September 2007. I have no other brothers or sisters and have lived with my mother all her life. She passed away in October 2007 and her death certificate and the Will were submitted to the Society soon afterwards.
 
The Society refused to change the name in the share certificate to mine, citing various reasons: 1. The older nomination is valid, and the new nomination is invalid. 2. I should pay a bribe. 3. I should sell the flat to their surrogate buyers for a pittance. 4. I should get a court affidavit and indemnity. I refused on all counts.
 
So they kept sending bills in my deceased mother's name. I kept reminding them to make the change, but they did not budge. I paid the bills for 10 months and then stopped paying. For nearly four-and-a-half years after that, they continued to send bills in her name. Suddenly, in May 2012, they made the change on the certificate, but refused to pass a resolution in the managing committee to make me a member or enter my name in the Society's members' register. Now they have filed a case against me with the deputy registrar to recover the bills issued in my mother's name. Please advise.
 
Answer: When a flat-owner makes a new nomination, it substitutes and overrides the earlier nomination. While what your Society has done is wrong, you have failed to follow the correct process for redressal. Instead of withholding the maintenance bill payments, you should have raised a complaint with the DRoCS against the managing committee for failing to transfer the flat in your name. This would have saved you a lot of time and trouble.
 
In any case, please respond to the Society's demand that you are willing to pay your flat's maintenance dues which have remained outstanding and were against bills raised in your deceased mother's name. Then, please proceed to pay all the necessary dues at the earliest.
 
You may then raise a complaint against the Society with the deputy registrar, for not passing a resolution in the managing committee and for failing to transfer the flat in your name since 2007. Kindly make a complaint against the managing committee under Bye-law No. 174(A)(iii).
 
Rectifying an Incorrect Property Tax Bill
 
Question: I bought my residential property in 2011. Even after application to the municipal corporation, I have been charged the property tax as a tenant, which is 40% more than what a owner has to pay. Please advise on how I can get this rectified.
 
Answer: It seems that you have not made your complaint to the assistant assessor and collector of your municipal ward office.
 
Now, with a copy of your municipal corporation property tax bill, a copy of your share certificate and a copy of the Index-2 of your flat's sale deed, kindly make a complaint to the assistant assessor and collector in the municipal ward office to reduce the property tax on your apartment. This officer will make the necessary correction and refund any excess property tax you have already paid.
 
NOTE
We will not be answering queries posted in the comments. Only questions sent through the Moneylife Foundation's Legal Helpline will be answered. If you want to seek guidance or ask questions to Mr Shanbhag, kindly send it through Moneylife Foundation's Free Legal Helpline. Here is the link: https://www.moneylife.in/lrc.html#ask-question 
 
Society Refuses to Allocate Parking Space
 
Question: Society formation was completed seven years ago, but the builder has not handed over the stilt parking. Now Society has started charging parking fees of Rs50 per vehicle. This decision was taken without the issue being discussed in a general body meeting. When I sent a written request to the committee for parking allocation for my four-wheeler, they responded that they do not have the authority to do so. Please advise whether the parking charges are legal and whether the Society truly does not have any right to allocate parking space.
 
Answer: Society has all the rights under the bye-law nos. 78 to 84 to allot parking space within Society's premises.
 
If the Society is not properly allotting parking to its members, then under bye-law No. 174(b)(iv) take up the matter in a cooperative court against the managing committee and also make the builder a party to the case. Kindly find an experienced advocate to take up this case in the cooperative court.
 
Transfer of Flat to Youngest Sibling After Parents' Death
 
Question: The flat is in my father's name, and as per records, the Society has not transferred the same in my mother's name due to pending dues and other issues. Now, my mother has passed away, and she had nominated her youngest son (my brother) as a nominee for 100% share in this flat out of her three children. The Society's consultant is asking for a succession certificate. Please advise how the flat can be transferred and who can apply to become a member.
 
Answer: A nominee is just a caretaker and not the sole owner of the flat. In your case, if all three children agree to transfer their mother's flat in their youngest brother's name, they should sign a release deed (RD) on Rs500 non-judicial stamp paper. This stamp paper should be bought in the name of the eldest child and the subsequent RD should be registered with the sub-registrar of assurances.
 
With the sub-registrar of assurances certified copy of RD and its Index-2, the Society will transfer your mother's flat in the name of your youngest brother as its sole owner.
 
There is no need to obtain any other documents, such as a succession certificate or a legal heirship certificate in this regard. RD is a legally valid document to transfer your late mother's flat to your youngest brother. Do the RD, and it will ensure your youngest brother becomes the sole owner of your mother's flat.
 
Disclaimer: The guidance provided in these columns and on our Legal Helpline is on the sole basis of the facts provided by the reader/questioner and does not amount to formal legal advice in any form whatsoever.
 
(Shirish Shanbhag has an MSc in Organic Chemistry, Diploma in Higher Education, and a Diploma in French and has completed his LL.B. in first class in 2021. Before his retirement, he was a junior college teacher at Patkar College from July 1980 to May 2012, teaching theoretical and practical chemistry. Post-retirement in 2012, he started providing guidance and counselling to people on several issues, specifically focusing on cooperative housing society-related matters. He has over 30 years of hands-on experience in all matters about housing societies and can provide out-of-box solutions for any practical issue.)