Common Areas and Facilities under the Maharashtra Apartment Ownership Act, 1970

I. Statutory Definition of "Common Areas and Facilities" [Section 3(f)]

Under Section 3(f) of the Act, unless otherwise explicitly provided in the original Deed of Declaration or lawful amendments executed thereto, "common areas and facilities" means and includes the following eight core structural categories:

The Underlying Land: The exact plot or land parcel on which the building structure is permanently located.

Structural Framework and Core Elements: The foundations, columns, girders, beams, primary supports, main exterior walls, roofs, halls, corridors, lobbies, staircases, stairways, fire escapes, and all designated entrances and exits of the building.

Peripheral and Storage Spaces: The basements, cellars, yards, gardens, open or covered parking areas, and common storage spaces.

Management and Staff Quarters: The premises designated for the lodging of janitors, security guards, caretakers, or persons actively employed for the management and maintenance of the property.

Central Service Installations: Installations of central utility services such as power, electricity, light, gas, hot and cold water, heating, refrigeration, central air-conditioning, and incinerating systems.

Common Apparatus and Mechanical Systems: The elevators, water tanks, pumps, motors, fans, compressors, ducts, and, in general, all apparatus and installations existing for common or collective use.

Community and Commercial Facilities: Such community halls, recreational rooms, or commercial facilities as may be specifically provided for and detailed in the original Deed of Declaration.

Residuary General Category: All other parts of the property necessary or convenient to its existence, maintenance, safety, or normally in common and repetitive use.

II. Use, Ownership, and Legal Status of Common Areas (Section 6)

Section 6 establishes strict statutory principles that regulate how common areas are owned, calculated, and managed, creating a binding framework for all occupants:

1. The Concept of the Undivided Percentage Interest [Section 6(1)]

Each individual apartment owner is legally entitled to an undivided percentage interest in the common areas and facilities.

Calculation Baseline: This percentage must be mathematically computed by taking as a basis the fair market value of the individual apartment in relation to the collective value of the entire property scheme.

Expression in the Declaration: This precise fractional interest must be explicitly expressed and recorded in the registered Deed of Declaration.

2. The Rule of Permanent Annexation [Section 6(2)]

The undivided percentage interest allocated to an apartment owner carries a permanent legal character:

It is permanently annexed to the specific apartment.

It cannot be separated, unlinked, or independently sold away from the unit.

Automated Conveyance: Any subsequent transfer, sale, lease, mortgage, or inheritance of the individual apartment is legally deemed to automatically include that unit's corresponding undivided percentage interest in the common areas, even if the conveyance deed fails to explicitly mention or describe those common facilities .

3. Absolute Prohibition Against Partition and Division [Section 6(3)]

The common areas and facilities must remain completely undivided in perpetuity.

The Absolute Bar on Lawsuits: No individual apartment owner, group of owners, or external creditor can bring a civil action for the partition or physical division of any part of the common areas.

Exception: This bar holds unless the entire property is formally removed from the provisions of the Act through the special collective procedures outlined in Sections 14 and 22.

Public Policy Rule: Any covenant, private contract, or agreement to the contrary is declared null and void by public policy.

4. Non-Hindrance Principle of Use [Section 6(4)]

Each apartment owner enjoys a right to physically use the common areas and facilities in accordance with the specific purpose for which they were naturally or structurally intended. However, this right is conditional: it must be exercised without hindering, blocking, or encroaching upon the lawful, co-extensive rights of the other apartment owners in the building.

5. Structured Maintenance, Additions, and Upkeep [Section 6(5)]

The necessary work of maintenance, structural repair, and replacement of the common areas and facilities, alongside making any subsequent additions or capital improvements thereto, cannot be executed by an individual owner on their own whim. These actions must be carried out collectively under the strict administrative mechanisms provided in the Act and the registered Bye-laws of the association.

6. Irrevocable Right of Access for the Association [Section 6(6)]

To ensure structural safety and prevent community damage, the Association of Apartment Owners holds an irrevocable right of access to each individual apartment.

Who Exercises the Right: This right is exercised by the Manager or the judicially recognized Board of Managers.

Operational Boundary: They may enter any individual unit during reasonable hours as may be necessary to execute routine maintenance, structural repairs, or replacements of common infrastructure passing through that unit.

Emergency Exception: In events requiring emergency repairs to prevent immediate, catastrophic damage to the common areas or to another adjacent apartment, the association's right of entry becomes immediate and absolute.

III. Comprehensive Real Estate Framework: MOFA vs. Apartment Act

To assist in conveyance drafting and property disputes, the following comparative table highlights the differences regarding common areas between the Maharashtra Ownership Flats Act, 1963 (MOFA) and the Maharashtra Apartment Ownership Act, 1970 :

Parameters of Distinction	Flat Schemes (Under MOFA, 1963) DOCX	Apartment Schemes (Under MAOA, 1970) DOCX
Legal Title over the Common Land	The absolute ownership of the underlying land and common structures transfers completely to the Co-operative Housing Society .	The title is legally split. The land remains an undivided common interest belonging proportionately to the individual unit buyers.
Calculation of Maintenance Charges	Typically calculated equally per flat, or based on flat square footage, regardless of property valuation.	Calculable strictly based on the undivided percentage interest written into the Deed of Declaration.
Voting Power in Meetings	Follows the principle of "One Member, One Vote" as a cooperative share entry, regardless of flat size.	Voting power is directly proportional to the undivided percentage interest held in the common areas.
Conveyance Machinery	The promoter must execute a single Deed of Conveyance transferring the entire layout to the Society .	The promoter executes a Deed of Declaration to split the titles, followed by individual Apartment Sale Deeds.
Encroachment Remedies	The Housing Society, as the legal owner, must file an ejectment action against an encroacher.	The individual owner can sue directly, as the common area represents an undivided right *in rem*.

IV. Key Trial Advocacy Guidance

1. Inseparability and Execution Shields

Under Section 6(2), since the undivided common interest is permanently annexed to the apartment, a civil court bailiff executing a money decree cannot independently attach or sell the apartment owner's parking space, terrace share, or undivided land percent away from the residential unit. They must be attached and sold together as a single property unit.

2. The Injunction Standard for Obstruction [Section 6(4)]

If an apartment owner encroaches upon a common corridor, places a private security gate blocking a fire escape, or locks up a common basement storage space, any aggrieved co-owner can bypass the association and file an independent civil suit for a Prohibitive or Mandatory Injunction under Section 35 of the Specific Relief Act, 1963. The plaintiff's cause of action rests on the clear statutory right to unhindered non-encroached common use guaranteed under Section 6(4) of the 1970 Act.

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