Mumbai Housing Society Queries: ‘Builder Liable For Leakage Within 3 Years Of Handing Over Possession,’ Says Expert

Q. My house had leakage issues after one year of purchase in 2014. In 2022, I spend Rs 20,0000 to stop the leakage and painting, but it reappeared. I stopped paying the maintenance but had to pay with interest. Who is responsible for the leakage in my flat, the builder, the society, or me? How can I recover the same and from whom?

Naresh Gandhi, Tilak Nagar

A. Since your flat was purchased in 2014 the provisions of the Maharashtra Flat Ownership Act, 1963 (MOFA) will be applicable. As per MOFA, the promoter (builder) is liable for any structural defect in the building or building material arising within three years of handing over the possession of the flat. Your builder would be held liable in case the leakage is due to a defect in the building structure or due to the use of defective material within a period of three years from the date of possession. You could have filed a complaint before the competent authority (civil court) within the limitation period. However, it may be difficult to justify the delay in filing the case against the builder.

Every society is required to maintain its premises including the terrace, roof, and external walls to prevent any leakage at its own cost. However, if the leakage is from any other flat, the expenditure for the internal leakages due to toilet, sink, etc, should be borne by the flat owner concerned.

It is not clear from your query as to whether the leakage is from the common terrace or from any other flat. Any complaint of internal or external leakages are required to be file with the cooperative courts. The society is entitled to levy interest for payments due from the members. Holding the payment of maintenance is not a good idea as delayed payments will attract interest and you run a risk of being declared “defaulter” (Bye Law 65, 68, 70-71, 159,174(B)).

Q. We have more than 500 members in our society. How many members are required in the managing committee including two reserved women to ensure that the committee is constituted properly and what would be the quorum? Can we appoint one of the members as returning officers for holding elections of the managing committee?

Janet Rodrigues, Mankhurd

A. The total strength of the managing committee having over 500 members is 19 out of which 14 should belong to the general category, two women, one from the SC/ST, one OBC, and one from VJ/NT/SBC. The quorum for the managing committee meetings is 10. Any housing society having more than 250 members as of March 31 of the preceding year qualifies as a “Type C” society under the provisions of the MCS (Election to Committee) Rules, 2014. Since your society has more than 500 members, you have to comply with the special provisions mentioned in Rule 75 apart from other applicable provisions. Your society shall inform before 180 days about the expiry of the term of the committee to the taluka or ward cooperation election officer.

The returning officer cannot be a member of your society as you have more than 500 members. The State Cooperative Election Authority (SCEA) shall appoint a returning officer from the panel maintained by the District Cooperative Election Officer.

Q. Can a provisional member, brother of the deceased member, give the flat on rent? The provisional member was the nominee. The deceased’s wife and daughter both expired and there is no direct legal heir.

Suresh Rao, Andheri

A. Provisional member means a person who has been duly admitted as a member of the society temporarily after the death of a member based on nomination till the admission of legal heirs or heirs as members of the society. In this case, the immediate family member of the deceased expired before him and the brother is the nominee.

The provisional member will have to obtain a succession certificate or legal heirship certificate, or family arrangement document in case the deceased has any other legal heir/s. In the meanwhile, the provisional member can give the said flat on leave and license with a disclosure to the effect that he is a provisional member and the process of obtaining the testamentary document is on.

The questions are answered by Sharmila Ranade, a legal expert associated with Mumbai Grahak Panchayat. The questions, in brief, may be sent to fpjchs@gmail.com

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