Although the managing committee of a cooperative housing society (CHS or Society) can levy 'non-occupancy' charges in addition to the maintenance charges to owner-members of flats leased to tenants, there can be no other charges separately levied on tenants. Unfortunately, tenants often face undue discrimination from residents and the managing committees of housing societies. They are forced to pay separately for privileges such as using a gym or clubhouse or parking their vehicle within the Society premises. Such charges are illegal and should not be taken from tenants.
 
On the issue of parking, such space has to be allotted as per the rules mentioned in the model bye-laws. Parking space cannot be allocated or sold by the builder, the managing committee or residents of the Society. Any sale agreement made for a parking space in a housing society is illegal and will not hold legally.
 
This week, I will address these problems and provide solutions to other issues, such as the commercial use of flats by tenants in a residential building and the necessity of maintaining a copy of the sale agreement in the records of the Society. 
 
Separate Additional Charges Levied on Tenants
 
Question: Our Society has resorted to charging a hefty amount from tenants for clubhouse usage while it remains free for owners. As owners of a flat in the building, we are paying charges which already include maintenance and use of the clubhouse. By charging separate clubhouse usage charges from my tenant, they essentially charge twice. Though a resolution for this was passed in the annual general meeting (AGM), I feel it is unfair and illegal. Can I challenge them on this, and under what bye-law?
 
Answer: For giving the flat on rent, a Society can ask only an additional 10% on the service charges (part of the maintenance bill), referred to as ‘non-occupancy’ charges and nothing more. Maharashtra government's circular dated 1 August 2001 capped the non-occupancy charges at 10% of the service charges (excluding municipal corporation/ municipal taxes) levied by the Society. 
 
If your Society is charging such ‘non-occupancy’ charges, that are anything more than the stipulated 10% as explained above, then under bye-law no. 172, you can write a complaint to the society, not to charge such additional amount for your flat.
 
Within 15 days of your written complaint to your Society, if it does not take any action, then under the bye-law no. 174(B)(ix) make a complaint against your Society in a cooperative court. For this you will need a good, experienced advocate who has handled such cases.
 
Allotment and Sale of Parking Space in Society
 
Question: I have bought a property and am the second owner. The first owner had purchased car parking from the builder. However, this has not been mentioned in the registered sale agreement of the first owner. However, the builder has given them an allotment letter for parking. When I purchased the flat, I had ensured that stilt parking would be mentioned in the sale agreement. Recently, a new managing committee is formed and they have started creating a ruckus, that parking allocated by builder or purchased from him was illegal. They are challenging it with respective owners and are planning to raise the issue with the deputy registrar. Please guide me on how should I proceed to safeguard my interest.
 
Answer: The deputy registrar will not take up a complaint made by your Society on the issue of parking. Suppose there is any dispute for car parking between the Society and the flat-owners. In that case, the Society or flat-owners have to make a civil suit in a cooperative court, by hiring a good experienced advocate.
 
Allotment of parking is managed under bye-law nos. 78 to 84 of the CHS. Parking cannot be sold by the builder or the Society. Even if they are sold by a registered sale deed, such a sale is not a valid sale in terms of law.
 
NOTE
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Copy of a Sale Agreement Kept on Society's Record
 
Question: I am the secretary in our Society. A flat-owner from our Society has been having daily arguments with managing committee members, as he needs a copy of his sale agreement, which is with the Society's office. He says he does not want his documents to be kept in the Society office. Despite informing him several times that the copies held in the Society's office are part of a set kept on record with the Society, he is being uncooperative and is creating a nuisance on an insignificant matter. Please advise. 
 
Answer: You have rightly said that one copy of the sale deed of every flat has to be kept with the Society. However, if the original sale deed has been kept in the Society's office, it has to be returned to the owner with a request that a photocopy be held on the Society's record. 
 
If a flat-owner asks for a photocopy of his flat's sale deed to be returned, then for causing such a nuisance, kindly make a police complaint against him, and the authorities will take proper action against him.
 
Tenants Conducting Small Commercial Business in Residential Flat 
 
Question: I have rented my house to a couple for the past six years. Of late, they are bringing small gift articles in the house, packing them and loading them in their car. The packing in the boxes is done by hand, and sometimes a maid is called to help. Not a single member has raised any objections to this activity, except for the secretary, who has termed this as 'commercial use' and thereby misuse of society property by tenants. Is the Society's stand correct and would they impose a fine and penalty for this? So far they have not given anything in writing, only a few WhatsApp messages. Please advise. 
 
Answer: Let me ask you this: in what way does the packing business done by your tenants pose any hindrance to the peaceful existence of the residents in your Society? Is it creating a nuisance for them?
 
If the tenant's packing business is not causing any nuisance or damage to the Society's building or residents, then the managing committee can not raise any objections and should let them continue. Also, in legal terms, as per the municipality, certain businesses that cause no nuisance or trouble to the residents of the building can be conducted in a residential building.
 
Ask your Society to make a formal complaint against you to the local municipal ward office to find out whether a business that causes no harm or nuisance to the residents can be allowed in a residential building.
 
Indeed, you yourself can also write a letter to the local municipal ward office, inquiring about the packing business that your tenant has undertaken. The response you receive from the municipal ward office can be shared with your secretary to substantiate that the municipality has no objection to it, so the managing committee cannot act. 
 
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.)