Personal Finance

Know your resident welfare associations

Meera Siva | Updated on April 08, 2018

They cannot form arbitrary rules that violate the law of the land

Ms Flatoo, a blithe young 55-year old, was gleefully looking at the notice board in her apartment complex. It had the “name and shame” list of defaulters and late payers of maintenance fees. The security handed her two envelopes; in it were questions from apartment dwellers from far away land.

Sanjiv from Chennai had a sad tale. “Madam, I got carried away by the hype and plonked my hard-earned money in a 3 BHK in a prime location with all facilities, in OMR. Well, only the money I paid was a prime number and the facilities were water shortage in summer and floods in winter. It was peaceful, as advertised, as there was no development”, he rued.

Ms Flatoo nodded her head and said tsk tsk. Her eyes watered as she came to the next part of Sanjiv’s story.

“I want to rent my flat to cover the maintenance charges that drain my cash, and many bachelors working in IT are interested. But the Resident Welfare Association (RWA) would not allow me to rent my home to singles. I am not singled out in this; there are many other owners in the same situation. Please help me pull a cash cow from this money pit”, he requested. Ms Flatoo shuddered and opened the other envelope, hoping it would be a happy ending to a story she had given some advice on. Not so, as this letter also left her moping.

“Ms Flatoo, I beg of you to fetch a solution by wagging your wand”, started a letter from Bengaluru. “I am a pet-parent and my eight-year-old Jeeva is treated as a pest. She cannot go in the elevator, to the park or linger in the common areas. She is a gentle creature, but the Resident Welfare Association folks say she smells, scares others and is noisy. They also object to her eating food that is not vegetarian”, it continued. Ms Flatoo had enough; she started preparing a reply, mentally.

Role of RWA

“My friends — Sanjiv and Jeeva’s parents”, she said: “You must first understand what an RWA is before you hang on to every word it says”, she chided. “RWAs are typically registered under the Societies Registration Act of 1960 and each State has an apartment ownership Act. The responsibilities of the RWA include safeguarding, promoting and protecting rights and well-being of its members”, she detailed. For example, Section 14 of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Act, 2010, says that the responsibility of a RWA is to take care of the apartments, common areas and facilities.

“Remember guys, RWAs do not have any statutory powers as they are voluntary organisations created to manage residents’ interests. Their powers are way less compared to co-operative housing societies, which can refuse permission for transfer of a multi-storey flat by a member”, she detailed. They can also expel a member for non-payment of the society’s dues and thereby limit access to facilities.

Rental restriction

To Sanjiv, she wrote, “RWAs cannot interfere with a resident’s right to use his flat.

For instance, Section 5 of the Act in Tamil Nadu Apartment Ownership Act, 1994 says that an apartment owner shall be entitled to the exclusive ownership and possession of his apartment. Therefore, the RWA cannot stop him from renting or selling his flat to any person”.

“Legally, no by-law can be in contravention to the law of the land. For example, in the Talmakiwadi Cooperative Housing Society case, the Bombay High Court held that the by-laws of a society, cannot violate the provisions of the Maharashtra Cooperative Societies Act, 1960”, she clarified.

“You must know that any restrictions on the sale or renting of flats by RWA will directly violate an apartment owner’s right to property, under Article 300A of the Constitution of India. So, it is illegal”, she declared.

“RWAs are known to keep pet owners on a tight leash. Often health or safety concerns are raised. But it is not always right. For example, the Consumer Court, ruled in favour of a pet owner in a case”, she wrote. “Jeeva would be happy to note that Ajay Marathe, a resident of Mumbai’s New Sarvodaya Co-operative Housing Society, Vashi, got a verdict that the housing society’s move to prevent pets from using the apartment lift without any valid reasons amounted to deficiency in service to the members as per section 2 (1) (g) of the Consumers Protection Act”, she said.

Such a resolution, she said, violates Section 11 of Prevention of Cruelty to Animal Act 1960, especially if the animal is not well. It is also against Article 51 A (g) of the Indian Constitution according to which it is the duty of every citizen to have compassion for living creatures. “It is therefore unconstitutional”, she concluded.

Spirit of co-operation

“Jeeva’s pet parent and Sanjiv should note that you certainly have certain obligations, as members. For example, the apartment must not be used for commercial purposes. You need permission before using any portion of the common areas of the building. Importantly, you must act with a spirit of co-operation; use your civic sense to be considerate and not harm the safety of others”, she advised.

“But, if you are affected by unreasonable actions of any RWA, you can file a suit under Section 6 of the Societies Registration Act”, she penned and signed off.

Published on April 08, 2018

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