COMMON EXPENSES AND MAINTENANCE OF APARTMENTS
Apartment culture in Bangalore has gained popularity due to several factors and presently there are a large number of apartments built within the city and on the outskirts of Bangalore.
The unique feature of apartments is that the owner of an apartment will enjoy his property subject to several restrictions though he shall be entitled to the exclusive ownership and possession of his/her apartment. He/She will not get absolute right over the land on which the apartment building is constructed, but only gets an undivided share in the land. Every apartment owner has to utilise the common areas and the common facilities like use of stair case, elevators, fire escapes, basements, swimming pool, recreation centre, community hall, play rooms, etc., in co-ordination with the other apartment owners/occupants and has to make additions, alterations and repairs to his apartment only with the consent of the apartment owners association and in accordance with the provisions of the bye-laws or guidelines of such association. Further, the foundation, columns, girders, beams,etc., of an apartment building are common and hence they are to be protected with care. In apartments, the owners have always keep in mind the philosophy of LIVE AND LET OTHERS LIVE.
Apartment Act
To regulate the activities of apartment owners in possession and enjoyment of their apartments, State Governments have enacted and made applicable in their States the Apartment Ownership Act and rules. The State of Maharashtra was first to enact “The Maharashtra Apartment Ownership Act 1970, which has come into force with effect from February 19, 1971. The Karnataka Apartment Ownership Act, 1972, was published in Karnataka Gazette extraordinary on 23.07.1973 and came into force from 01.04.1975.
Before proceeding further it is worthwhile to know the definitions of Apartment, building, property, and Flat.
Apartment is defined in Karnataka Apartment Ownership Act, 1972, as “a part of the property intended for any type of independent use, including one or more rooms or enclosed spaces located on one or more floor (or parts thereof) in a building intended to be used for residential purposes and with a direct exit to a public street, road or highway or to a common area leading to such street, road or highway”.
This Act defines Building as a building containing four or more apartments or two or more buildings each containing two or more apartments with a total four or more apartments of all such buildings and comprising a part of the property.
Like various commonly used words having different meaning the word “property” also has a distinct meaning in the Karnataka Apartment Ownership Act. This includes land, building all improvements and structures thereon, allowed in freehold or held on lease or as a occupant under any law relating to land revenue and all easements, rights, appurtenances belong thereto and all articles of personal property intended to use in connection with which have been or intended to be submitted to the provisions of Act.
According to Karnataka Ownership Flat (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972, “Flat” is defined to mean a separate and self contained set of premises used, intended to be used for residence or office, or showroom or shops or go down (includes a garage) the premises forming a part of a building.
Common areas and facilities
The unique feature of apartments is the utilization of the common areas and facilities by the apartment owners which are to be shared by all the apartment owners since none of them will have an absolute ownership or beneficial right over the common areas and common facilities. These areas and facilities include the land on which building is constructed, foundation, columns girders, beams, supports, terrace, corridors, lobbies, stairs, fire escapes, entrances and exits of the building, basement, cellars, gardens, storage spaces, the premises, generators, installations of central services like power, light, gas, hot and cold water, heating, refrigeration, air conditioning, incinerating, elevators, tanks, pumps, compressors, ducts,etc. and in general all apparatus and installations existing for any common use. Further,the community halls and commercial facilities available within the precincts of the apartment building which are necessary for enjoyment of the apartment owners are also considered as common facilities. All such common areas and facilities are to be mentioned in the deed of declaration to be registered with the jurisdictional sub-registrar.
To maintain these common areas and to provide the common facilities, money is needed. Every apartment owner has to contribute his/her share in the common expenses calculated on the basis of the super built area of his apartment which is to be paid regularly by all the apartment owners without default. As per section 19 of the Karnataka Apartment Ownership Act, 1972 all unpaid common expenses shall constitute a charge on such apartment prior to all other charges, except the charge, if any, on apartment for payment of government and municipal taxes and all sums unpaid on a first mortgage of the apartment.
According to the Karnataka Apartment Ownership Act, “Common expenses” means (a) all sums lawfully assessed against the apartment owner by the Association of apartment owners; (b) expenses of administration, maintenance, repair or replacement of common areas and facilities; (c) expenses agreed upon as common expenses in bye-laws; and {d} expenses declared as common expenses by the provisions of the Act or by the declaration or the bye-laws.
As the common expenses are liable to be shared there could never be any loss. On the contrary, there are chances of surplus fund which is known as common profits. Common profits means balance of all income, rents, profits, and revenues from common areas and facilities remaining after deduction of common expenses.
Deed of declaration
If any apartment owner wants to be governed by the provisions of the Karnataka Apartment Ownership Act, he shall execute a deed of declaration of apartment under the Act, which is to be registered with jurisdictional sub registrar. Deed of Apartment contains description of land on which the building is constructed, whether the land is freehold or leasehold, complete description of building, mentioning the number of floors, basement number of apartments and principle materials of which it is constructed, number of each apartment, location, area, number of rooms, immediate common area to which it has access and any other data relevant for proper identification, description of common areas and facilities, value of the property and of each apartment, percentage of undivided interest in common areas and facilities for each apartment, name of the owner, voting rights, method by which the declaration may be amended etc.
Separate assessment
Each apartment with its percentage of undivided interest in the land, super built up area of their flat. common areas and facilities will be deemed as separate property for assessment of tax on land and building. Likewise association also will collect the maintenance charges proportionately to their super built-up area, generally Rs.0.50 to 2.00 per sqft. maintenance charge will be there depends on the facilities and maintenance expenses.
Status of apartments
Each apartment together with its undivided interest in land and common areas constitute a heritable and transferable immovable property. Accordingly the apartment owners may transfer their apartments with the undivided interest in land, common areas and facilities by way of sale, mortgage, lease, gift, exchange or in any other manner. The apartment owner may also make bequest of the same under law applicable to transfer and succession of immovable property.
Apartment culture in Bangalore has gained popularity due to several factors and presently there are a large number of apartments built within the city and on the outskirts of Bangalore.
The unique feature of apartments is that the owner of an apartment will enjoy his property subject to several restrictions though he shall be entitled to the exclusive ownership and possession of his/her apartment. He/She will not get absolute right over the land on which the apartment building is constructed, but only gets an undivided share in the land. Every apartment owner has to utilise the common areas and the common facilities like use of stair case, elevators, fire escapes, basements, swimming pool, recreation centre, community hall, play rooms, etc., in co-ordination with the other apartment owners/occupants and has to make additions, alterations and repairs to his apartment only with the consent of the apartment owners association and in accordance with the provisions of the bye-laws or guidelines of such association. Further, the foundation, columns, girders, beams,etc., of an apartment building are common and hence they are to be protected with care. In apartments, the owners have always keep in mind the philosophy of LIVE AND LET OTHERS LIVE.
Apartment Act
To regulate the activities of apartment owners in possession and enjoyment of their apartments, State Governments have enacted and made applicable in their States the Apartment Ownership Act and rules. The State of Maharashtra was first to enact “The Maharashtra Apartment Ownership Act 1970, which has come into force with effect from February 19, 1971. The Karnataka Apartment Ownership Act, 1972, was published in Karnataka Gazette extraordinary on 23.07.1973 and came into force from 01.04.1975.
Before proceeding further it is worthwhile to know the definitions of Apartment, building, property, and Flat.
Apartment is defined in Karnataka Apartment Ownership Act, 1972, as “a part of the property intended for any type of independent use, including one or more rooms or enclosed spaces located on one or more floor (or parts thereof) in a building intended to be used for residential purposes and with a direct exit to a public street, road or highway or to a common area leading to such street, road or highway”.
This Act defines Building as a building containing four or more apartments or two or more buildings each containing two or more apartments with a total four or more apartments of all such buildings and comprising a part of the property.
Like various commonly used words having different meaning the word “property” also has a distinct meaning in the Karnataka Apartment Ownership Act. This includes land, building all improvements and structures thereon, allowed in freehold or held on lease or as a occupant under any law relating to land revenue and all easements, rights, appurtenances belong thereto and all articles of personal property intended to use in connection with which have been or intended to be submitted to the provisions of Act.
According to Karnataka Ownership Flat (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1972, “Flat” is defined to mean a separate and self contained set of premises used, intended to be used for residence or office, or showroom or shops or go down (includes a garage) the premises forming a part of a building.
Common areas and facilities
The unique feature of apartments is the utilization of the common areas and facilities by the apartment owners which are to be shared by all the apartment owners since none of them will have an absolute ownership or beneficial right over the common areas and common facilities. These areas and facilities include the land on which building is constructed, foundation, columns girders, beams, supports, terrace, corridors, lobbies, stairs, fire escapes, entrances and exits of the building, basement, cellars, gardens, storage spaces, the premises, generators, installations of central services like power, light, gas, hot and cold water, heating, refrigeration, air conditioning, incinerating, elevators, tanks, pumps, compressors, ducts,etc. and in general all apparatus and installations existing for any common use. Further,the community halls and commercial facilities available within the precincts of the apartment building which are necessary for enjoyment of the apartment owners are also considered as common facilities. All such common areas and facilities are to be mentioned in the deed of declaration to be registered with the jurisdictional sub-registrar.
To maintain these common areas and to provide the common facilities, money is needed. Every apartment owner has to contribute his/her share in the common expenses calculated on the basis of the super built area of his apartment which is to be paid regularly by all the apartment owners without default. As per section 19 of the Karnataka Apartment Ownership Act, 1972 all unpaid common expenses shall constitute a charge on such apartment prior to all other charges, except the charge, if any, on apartment for payment of government and municipal taxes and all sums unpaid on a first mortgage of the apartment.
According to the Karnataka Apartment Ownership Act, “Common expenses” means (a) all sums lawfully assessed against the apartment owner by the Association of apartment owners; (b) expenses of administration, maintenance, repair or replacement of common areas and facilities; (c) expenses agreed upon as common expenses in bye-laws; and {d} expenses declared as common expenses by the provisions of the Act or by the declaration or the bye-laws.
As the common expenses are liable to be shared there could never be any loss. On the contrary, there are chances of surplus fund which is known as common profits. Common profits means balance of all income, rents, profits, and revenues from common areas and facilities remaining after deduction of common expenses.
Deed of declaration
If any apartment owner wants to be governed by the provisions of the Karnataka Apartment Ownership Act, he shall execute a deed of declaration of apartment under the Act, which is to be registered with jurisdictional sub registrar. Deed of Apartment contains description of land on which the building is constructed, whether the land is freehold or leasehold, complete description of building, mentioning the number of floors, basement number of apartments and principle materials of which it is constructed, number of each apartment, location, area, number of rooms, immediate common area to which it has access and any other data relevant for proper identification, description of common areas and facilities, value of the property and of each apartment, percentage of undivided interest in common areas and facilities for each apartment, name of the owner, voting rights, method by which the declaration may be amended etc.
Separate assessment
Each apartment with its percentage of undivided interest in the land, super built up area of their flat. common areas and facilities will be deemed as separate property for assessment of tax on land and building. Likewise association also will collect the maintenance charges proportionately to their super built-up area, generally Rs.0.50 to 2.00 per sqft. maintenance charge will be there depends on the facilities and maintenance expenses.
Status of apartments
Each apartment together with its undivided interest in land and common areas constitute a heritable and transferable immovable property. Accordingly the apartment owners may transfer their apartments with the undivided interest in land, common areas and facilities by way of sale, mortgage, lease, gift, exchange or in any other manner. The apartment owner may also make bequest of the same under law applicable to transfer and succession of immovable property.
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