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Unlike independent houses, the
residents of apartments have some unique rights and duties, and it is vital to
have a clear understanding of them if you happen to live in an apartment.
First of all let us consider the word
'Flat'. The word 'Flat' is not a legal term, and has its roots in Scottish and
Old English. 'Flat' meant a floor in Old English and obviously it meant living
on a floor of the building instead of occupying the entire structure.
The Apartment Ownership Act, defines
an apartment as a property intended for independent use including one or more
floors or enclosed spaces located in one or more floors (or parts thereof) in
a building, intended to be used for residence, office, practice of any
profession or for carrying on any occupation, trade or business or for other
types of independent use, and with a direct exit to a road, or highway or to a
common area leading to such street, road or highway.
In the common man's language, the
word 'Flat' means a residential, semi-residential or non-residential unit. The
word 'Apartment' is normally used to indicate a residential unit. Going by the
above definition, the words 'Apartment' and 'Flat' mean the same thing.
An apartment shall be deemed fit for
dwelling for independent use even if sanitary, washing, bathing and facilities
are common.
An apartment owner is the person or
persons owning an apartment and an undivided interest in the common areas. It
also includes owners who have purchased apartments using loans.
Common areas
There is a lot of confusion regarding
'Common Areas and Facilities'.
As ownership of an apartment is
connected to an undivided interest in the common areas and facilities, it is
important to know as to how the term has to be understood legally.
The term includes the land on which
the building is located. The foundations, columns, girders, beams, supports,
main walls, roofs, halls, corridors, lobbies, stairways, terrace, compound
walls and fire escapes come under common areas.
Water sources are also common. The
term also includes wells and sumps and water supply will fall within the
definition of the term. Sewerage and drainage connections also come under
common facilities.
The entrances and exits of the
building also come under common areas and facilities. The basements, cellars,
yards, gardens, parking areas and storage spaces are also common.
The premises inside the building
meant for the lodging of caretakers or persons employed for the maintenance of
the property also come under common areas.
Installations connected with power,
light, gas, hot and cold water, heater, refrigeration, air-conditioning and
incinerating equipments are also part of common areas. The elevators, tanks,
pumps, motors, fans, compressors, ducts and in general, all apparatus
existing for common use is covered by the term.
Limited common area
Apart from absolutely common areas
there are also limited common areas and facilities. They can be limited to a
certain apartment or apartments and will not be accessible to other
apartments. They are allotted as per the agreement with the builder.
Normally, when two or more persons
own a property, they will have an undivided interest in the property. One or
more persons having co-ownership of a property can claim partition.
The term 'Partition' means division
of an identified share of a person. In the case of apartments nobody can claim
a partition.
The apartment and the undivided
interest in the common areas and facilities, is inheritable and transferable.
You can, therefore, inherit, sell, mortgage, lease, gift, settle, exchange or
deal with the property in any manner.
You will have the same rights,
privileges, obligations, liabilities and remedies, as any other immovable property owner. You can also bequeath or will the apartment and the undivided
interest in the common areas.
The undivided interest in common
areas and facilities is computed on the basis of the flat's plinth area.
Owners' Association
If the building has five or more
apartments or three or more floors, an Association or Society of Apartment
Owners has to be registered under the Co-operative Societies Act or the
Societies Registrations Act, 1975.
The objects of the Association have
to include maintenance of all common areas and facilities, limited common
areas and facilities and provide the amenities needed by the apartment owners.
If there are profits, it should be
distributed to all the apartment owners.
The common expenses have to be shared
by the owners as per the percentage of their undivided interest in the common
areas and facilities.
Maintenance charges
Maintenance charges are also
collected on the basis of the ownership of the number of apartments regardless
of the undivided interest of the owners.
The common expenses will include
amounts determined payable by the Association, expenses of administration,
maintenance and repair of common areas.
As an apartment owner you cannot do
anything which will endanger the structural safety of the property or reduce
its value.
You will also require the permission
of other owners to add any structure or undertake excavation or construct
additional units or do anything which will affect the others.
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