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DEED OF APARTMENT, DEED OF DECLARATION, BY LAWS
(Ss. 11, 13 and 16)
QUESTION BANK
Q.1 Define ‘Apartment’ and explain various contents of Bye-laws annexed to the Deed of declaration.
Q.2 Explain the contents of ‘Deed of Apartment’ and state the effect of registration of Deed of apartment.
Short Notes
1. Deed of Apartment.
SYNOPSIS
(a) Description of the Land:
(b) Description of the Building:
(c) Apartment Number and Details:
(d) Common Areas and Facilities:
(e) Limited Common Areas:
(f) Value and Percentage of Undivided Interest:
(g) Statement of Purpose:
(h) Service of Process:
(i) Voting Percentage for Destruction/Repair:
(j) General Details:
(k) Amendment Method:
1. Statutory Binding Nature (Section 24):
2. Legal Standing and Actions by the Board (Section 23):
3. Fiscal Concessions (Section 24A):
1. Election of the Board of Managers:
2. General Body Meetings:
3. Election of a President:
4. Election of a Secretary:
5. Election of a Treasurer:
6. Maintenance & Collection:
7. Staff Employment:
8. House Rules:
9. Reasonable Restrictions:
10. Amendment Threshold:
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In urban centers across India, particularly in land-scarce states like Maharashtra, multi-storeyed buildings and apartment complexes have become the modern standard for residential and commercial living. To regulate the ownership of individual apartments in these buildings and to make such apartments secure, inheritable, and transferable immovable properties, the state legislature enacted the Maharashtra Apartment Ownership Act, 1970.
Prior to this legislation, individual buyers faced significant hurdles in establishing independent, legally recognized title over a specific flat within a larger structure. The Act resolved this by establishing a clear legal framework. It outlines that an apartment owner not only possesses exclusive ownership of their specific unit but also holds a defined, undivided interest in the common areas and facilities of the building.
The structural and administrative foundation of any property governed by this Act relies on three core legal pillars: the Deed of Declaration, individual Deeds of Apartment, and the condominium's Bye-laws. These documents collectively outline the physical boundaries, ownership percentages, and administrative rules necessary to ensure smooth community living and legally enforceable property rights.
A Deed of Declaration must be executed by the sole owner or all the co-owners of a property to submit it to the provisions of the Maharashtra Apartment Ownership Act, 1970. Under Section 2, the Act applies exclusively to properties where the owners explicitly declare their intent to bring the property under this statutory framework through a duly executed and registered instrument. In short, unless this declaration is formalised, the provisions of the Act cannot be made applicable to the property.
1. Definition of 'Declaration' [Section 3(j)]: It refers to the legal instrument by which the property is submitted to the provisions of the Act, including any lawful amendments made to it from time to time.
2. Definition of 'Property' [Section 3(r)]: It encompasses the land, the building, all structural improvements, easements, rights, appurtenances, and all articles of personal property intended for joint use in connection therewith.
The Declaration must explicitly detail the following particulars:
(a) Description of the Land: Clear boundary details of the plot where the building stands, specifying whether it is freehold or leasehold.
(b) Description of the Building: Stating the number of storeys, basements, individual apartments, and the principal construction materials used.
(c) Apartment Number and Details: The specific identification number of each apartment, its exact location, approximate area, number of rooms, and the immediate common areas it accesses.
(d) Common Areas and Facilities: A comprehensive description of the joint facilities (e.g., staircases, lobbies, lifts).
(e) Limited Common Areas: Facilities reserved exclusively for certain apartments, clearly naming those specific units.
(f) Value and Percentage of Undivided Interest: The monetary value of the property and each apartment, along with the percentage of undivided interest in the common areas assigned to each owner for voting and maintenance purposes. It must include a statement confirming that these shares are unencumbered on the date of declaration.
(g) Statement of Purpose: The restricted and intended use of the building and its individual apartments (e.g., residential or commercial).
(h) Service of Process: The name and local address (within the same city, town, or village) of the person authorized to receive legal summons and notices.
(i) Voting Percentage for Destruction/Repair: The mandated majority percentage required to decide whether to repair, restore, rebuild, or sell the property in the event of partial or total destruction.
(j) General Details: Any other relevant information consistent with the Act that the executing parties deem necessary.
(k) Amendment Method: The explicit procedure by which the Declaration may be legally amended in the future.
Note: A true copy of the Declaration, along with the annexed Bye-laws and subsequent amendments, must be filed with the Competent Authority. The Act mandates that this declaration follow the statutory pro forma prescribed in Form "A".
Section 13 mandates that the Deed of Declaration, its subsequent amendments, individual Deeds of Apartment, and the official architectural floor plans of the building must be compulsorily registered under the Registration Act, 1908.
Every individual apartment purchaser is required to execute a Deed of Apartment to establish clear, transferable ownership.
Apartment Owner [Section 3(b)]: Defined as the person(s) owning an apartment along with an undivided interest in the common areas and facilities in the exact percentage established in the original Deed of Declaration.
The execution of apartment deeds is split into two primary stages:
a. Parties: Executed between the Party of the First Part (the sole owner or all co-owners/promoters who originally registered Form “A”) and the Party of the Second Part (the individual apartment buyer).
b. Enclosures: It must be accompanied by a copy of the registered floor plans of the building and a formal Architect’s Certificate. The architect must certify that the layout plan accurately depicts the physical reality of the apartment as built, detailing its boundaries, dimensions, entrances, and the common or limited common areas it accesses.
a. Parties: Executed during resale, where the Party of the First Part is the existing apartment owner and the Party of the Second Part is the new transferee/buyer.
b. Under Section 12, subsequent deeds must comprehensively include:
(i) A full description of the land or the post office address of the property, accompanied by the book, page, date, and registration serial number of the original Deed of Declaration under the Registration Act, 1908.
(ii) The specific apartment number matching the Declaration, along with identification data.
(iii) A statement outlining the permitted usage and any restrictive covenants.
(iv) The percentage of undivided interest in the common areas linked to that unit.
(iv) Any further transactional details agreed upon by the parties that align with the parent Declaration.
Like the initial declaration, true copies of every individual Deed of Apartment must be filed with the Competent Authority (Section 12(2)) and registered under the law (Section 13).
Once the property is submitted via registration, the following legal consequences apply:
1. Statutory Binding Nature (Section 24): The provisions of the Act, the registered Declaration, and the Association's Bye-laws become instantly binding on all apartment owners, tenants, residents, employees, or any person utilizing the premises. All lawful decisions and financial resolutions passed by the Association of Apartment Owners carry absolute binding force.
2. Legal Standing and Actions by the Board (Section 23): The registered Board of Managers gains the legal capacity to sue or bring actions on behalf of the condominium. Conversely, serving a legal summons or notice upon the designated agent listed in the declaration constitutes valid legal service to the entire condominium.
3. Fiscal Concessions (Section 24A): To incentivize apartment ownership, the State Government holds the discretionary power to reduce or entirely remit the stamp duty payable on these instruments.
The Bye-laws function as the administrative constitution of the condominium. The daily management and governance of the estate must be conducted strictly in accordance with these rules, a copy of which must be appended directly to the Deed of Declaration. No subsequent amendment to the bye-laws is valid unless it is formally documented as an amendment to the parent Declaration, recorded, and filed with the Competent Authority. It sets out the composition of office bearers for the good administration of the property.
The bye-laws must explicitly provide for:
1. Election of the Board of Managers: Defining its total strength, tenure, and a rotational retirement system (where one-third of the members retire annually). It details their powers, duties, compensation, and provisions for delegating routine administrative work to a professional Manager or Secretary.
2. General Body Meetings: The procedure for calling annual or extraordinary meetings, along with mandatory quorum rules.
3. Election of a President: Chosen from among the Board members to chair both Board and Association meetings.
4. Election of a Secretary: For handling documentation and records.
5. Election of a Treasurer: For managing accounts and financial books.
6. Maintenance & Collection: The precise system for the upkeep, repair, and replacement of common areas, along with the mechanism for calculating and collecting maintenance shares from owners.
7. Staff Employment: Terms, conditions, and remuneration for hiring personnel dedicated to estate maintenance.
8. House Rules: The method for passing operational house rules regarding the day-to-day use of common amenities.
9. Reasonable Restrictions: Rules preventing any single owner from causing unreasonable nuisance or interfering with the peaceful enjoyment of other units.
10. Amendment Threshold: The specific voting majority required to amend the bye-laws.
The bye-laws may also include clauses for:
1. Regulating the transfer, leasing, or partition restrictions on apartments and their corresponding undivided interest shares.
2. Empowering the Board to retain and lease commercial portions of the property (like a basement or storefront) to non-residents, ensuring profits are distributed or applied as per the bye-laws.
3. Detailed mechanisms for financial auditing, bookkeeping, and general estate administration.
To ensure completeness under the current legal framework, the application of these sections is governed by the following important rulings of the Hon'ble Bombay High Court:
Sachin Malpani & Ors. v. Nilam Patil & Ors.
(Writ Petition No. 9179 of 2022):
In this landmark ruling under the Act, the Bombay High Court interpreted Section 10 and Section 11 regarding the calculation of maintenance charges. The Court held that common maintenance expenses in a condominium must be levied in strict proportion to the undivided interest/carpet area of each apartment as specified in the registered Deed of Declaration. The Court categorically ruled that a General Body resolution passed by a simple majority cannot override this statutory mandate to charge a flat uniform rate across unequal apartments. The registered Deed of Declaration carries statutory force and its proportional structure remains absolute.
M/s Chetan Constructions, Aurangabad & Anr. v. The State of Maharashtra & Ors. LAWS(BOM)-2016-10-171
The Court highlighted the strict mandatory compliance of Section 12(2) and Section 16, reiterating that a condominium cannot legally function or claim complete statutory exclusion from other local laws unless true copies of the individual Deeds of Apartment and the complete, un-amended Bye-laws have been systematically filed and recorded before the Competent Authority.
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(a) Description of the land
(b) Description of the building
(c) The apartment number
(d) Description of common areas
(e) Description of limited common areas
(f) Value of the property
(g) Statement of the purposes
(h) The name of the person to receive service of process
(i) Provision as to the percentage of votes
(j) Any other details in connection with the property
(k) The method by which the Declaration may be amended
1. Election of the Board of Managers:
2. General Body Meetings:
3. Election of a President:
4. Election of a Secretary:
5. Election of a Treasurer:
6. Maintenance & Collection:
7. Staff Employment:
8. House Rules:
9. Reasonable Restrictions
10. Amendment Threshold:
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