CHS PROBLEMS SOLUTIONS

When it comes to the transfer of property or shares in cooperative housing societies (CHS), particularly after the passing of a loved one, the process can often be complex and legally intricate. Many individuals face challenges in navigating the necessary steps to ensure that property is transferred correctly in compliance with cooperative housing society (CHS/Society) rules and government regulations. This can involve multiple documents, legal agreements and coordination with legal heirs and Society officials.

 

This week, we will look at a couple of common scenarios that many readers may find themselves dealing with—transferring property after the death of a parent and understanding the rights of nominees or provisional members in a CHS. These queries offer insights into the processes involved and provide actionable steps to ensure a smooth transfer of ownership while also helping to avoid common pitfalls.

 

Provisional Membership as a Nominee in Housing Society

 

Question: Can the names of both the daughter and son (who are registered nominees) be endorsed on the reverse of the share certificate as provisional members for the flat owned by their deceased parents, pending the submission of a succession or legal heirship certificate? 

 

Answer: According to the amended Model Cooperative Society (MCS) Rules (2019), there are two important scenarios to consider:

1. If the person is an associate member (having filled out the appendix-5 form) and their name is not included in the sale deed of the flat.

2. If the person is made a provisional member because they were nominated by the flat-owner (who has since passed away).

 

In both cases, the nominees' names (the daughter and son, in this case) cannot be endorsed on the reverse side of the share certificate. However, the Society can still recognise them as provisional or associate members by providing an official letter on the Society's letterhead.

 

The contents of this letter should include the following (shared as a template):

 

Dear [Name of Nominee],

 

You were nominated by [Name of Flat Owner] as the nominee for their flat (Flat No. ____) in our Society. Following the demise of said owner and upon receiving your application as the registered nominee, the Managing Committee, in its meeting on ________, has appointed you as the Provisional Member of said flat. This provisional membership is valid until you submit the necessary legal testamentary papers to finalise the transfer of ownership to yourself or another legal heir.

 

You are required to submit the testamentary documents within six months of [Name of Flat Owner] 's demise. Until then, as a provisional member, you have the following rights:

However, please note that, as a provisional member, you cannot sell the flat or lease it out until the final legal documents are submitted and the membership is fully transferred.

 

[Signed/Dated]

Secretary/Chairman

 

This ensures clarity of the status of the nominees as provisional members while outlining their rights and responsibilities until the full legal heirship process is complete.

 

Charging Separate Maintenance for Resident and Commercial Owners

 

Question: We have around 20 residential buildings and a separate office and shopping complex. The office units are about 250sqft (square feet) each, while the flats range from 1200sqft to 2,000sqft. We collect uniform maintenance charges (around Rs3,000 per month) from all residential units based on a government order. Since the shopping units are much smaller and do not use many facilities like lifts, bathrooms, or gardens, we have been collecting a smaller amount (Rs500 per month). Some members now demand that the office complex pay the same maintenance charges as the residential units. The office owners argue that they do not make enough money from these units to pay five or six times more than what they currently pay and are threatening to form a separate society if higher fees are imposed. They are willing to pay more than they currently do, but not as much as the residential units. Can you suggest a legally acceptable solution?

 

Answer: If the shop units are separate, and there are no residential flats above them, you could allow them to form a separate premises cooperative society. Since they cannot access certain facilities, such as bathrooms and toilets, you could ask them to construct these before forming a separate cooperative society. 

 

However, current rules state that shops and office premises should pay the same common maintenance charges as flat-owners. This is likely the reason for the demand to increase their contributions. A balance could be reached by negotiating a fair increase that reflects the services they actually use.

 

Transfer of Flat after Death of Owner

 

Question: My father passed away seven years ago and he was the holder of our flat. Now, the share certificate has been transferred to my mother's name. I would like the share certificate to be transferred to my name. What is the process? Should the flat be gifted to me or is there another way?

 

Answer: You have not mentioned whether your late father and your mother jointly owned the flat. I assume the flat was solely owned by your father. To transfer the flat to your name, here is the process:

1. All legal heirs (your mother, yourself and any siblings) should execute a release deed (RD). This document essentially releases the rights of the other heirs (your mother and siblings) in favour of you.

 

2. The RD needs to be:

a) Drafted on a non-judicial stamp paper worth Rs500.

b) Registered at the sub-registrar of assurances office, with a registration fee of Rs1,000.
 

3. In the release deed:

a) Your mother and your siblings will be the releasors (the ones giving up their rights).

b) You will be the releasee (the one receiving the rights).

 

4. It is recommended to hire a professional lawyer to draft and register the release deed properly.

5. Once the release deed is registered, obtain a copy of the RD and its Index-2. With these documents and the necessary transfer forms, you can apply to have the flat and its share certificate transferred to your name.

 

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

 

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, a 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.)