CHS PROBLEMS SOLUTIONS

The smooth functioning of a cooperative housing society (CHS/the Society) depends not only on clear bye-laws but also on a proper understanding of the legal rights and obligations of its members. Many disputes arise not because the law is unclear, but because assumptions are made about ownership, occupation or financial liability without reference to the applicable legal provisions.

 

This week's queries highlight recurring issues. They examine when a Society may levy non-occupancy charges where a flat is occupied by a power of attorney (PoA) holder, the rights of a spouse inheriting property under a Will and the implications of the recent changes relating to probate, as well as the basis on which maintenance charges are calculated for commercial premises. 

 

 

Answer: A POA merely authorises a person to act on behalf of the owner. It does not, by itself, confer ownership or tenancy rights. Therefore, the fact that a PoA-holder is occupying the flat does not automatically determine whether non-occupancy charges are payable.

 

Under the Maharashtra cooperative housing society model bye-laws and the government directions governing non-occupancy charges, the relevant issue is whether the member is residing in the flat and, if not, who is occupying it.

 

If the member is not residing in the flat and it is occupied by a person who does not fall within the definition of the member's family under the applicable bye-laws, the Society may levy non-occupancy charges in accordance with the prescribed government limits (10% of the service charges).

 

Conversely, if the PoA-holder is also a family member of the member, merely holding a PoA would not ordinarily attract non-occupancy charges.

 

Where a PoA-holder who is not a family member has occupied the flat for three years and the member has failed to submit the required declarations or supporting documents, despite being called upon to do so, the Society should first issue a notice to the member seeking the necessary information and documents. If the member fails to establish that the occupant is a family member or otherwise exempt under the applicable bye-laws, the Society may levy non-occupancy charges in accordance with the applicable rules.

 

The mere absence of documents does not automatically entitle the Society to levy non-occupancy charges. However, where the member is not residing in the flat, the occupant is not shown to be a family member and the member fails to furnish the required information, despite notice, the Society would generally have sufficient grounds to levy non-occupancy charges in accordance with the applicable bye-laws and government directions.

 

 

Answer: Since the flat is the husband's self-acquired property, he is free to bequeath it through a Will. In India, registration of a Will is not mandatory. A Will that is properly executed and attested by two witnesses is generally valid, provided the testator was of sound mind and acted voluntarily.

 

Whether the wife can make a fresh Will depends on how she acquires the property under her husband's Will. If the Will gives her absolute ownership, she becomes the full owner of the flat and is free to sell, gift, mortgage or make a fresh Will bequeathing the property to anyone she chooses. However, if the Will grants her only a life interest, with ownership passing to the two sons after her lifetime, she cannot alter the ultimate beneficiaries by making another Will. Therefore, the exact wording of the husband's Will is crucial in determining whether it confers absolute ownership or merely a life interest.

 

Following the 2025 amendment to the Indian Succession Act, probate is no longer mandatory, including in Mumbai, Chennai and Kolkata. Accordingly, a CHS should not ordinarily insist on probate for the transfer of a flat under a valid Will, particularly where there is no dispute among the legal heirs.

 

If a dispute subsequently arises regarding the validity or interpretation of the Will, the matter may be decided by the competent court.

 

Question: I own a commercial premises in a CHS. I pay the property tax and water bill directly for my premises. My unit is on the first floor, has an area of 2,650sqft, and has a separate staircase. I do not use the Society's lift. How should my maintenance charges be calculated?

 

Answer: If your premises can be accessed through the Society's lift, you are liable to contribute towards lift maintenance even if you do not actually use the lift. Even ground-floor premises are generally required to contribute towards lift charges. These charges are usually recovered equally from all members, irrespective of the size and location of their premises.

 

Maintenance charges are levied under the applicable model bye-laws under different heads, such as service charges, repairs and maintenance, sinking fund, common electricity, lift charges and other common expenses. Some charges are recovered equally from all members, while others are levied based on the area of the premises or actual usage, as provided in the bye-laws.

 

Although you pay your municipal property tax and water charges directly to the municipal corporation, the Society may still recover your proportionate share of expenses relating to the common areas and common services, wherever applicable. For the detailed method of calculating maintenance charges, you may refer to the applicable model bye-laws of your CHS.

 

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