KAOA Act
Shankar Srinivasan
Most of us here are comparing KAO act vs KOFA and RERA.
First and foremost, please realize the fact that, KAO act is a separate legislation, which no way related or comparable with KOFA or RERA.
Taking a quick reference on the comparison table as shared by Shri. Mathew Thomas, KOFA, KAOA and RERA, it is much more evident that, KAOA has no relevance with KOFA or RERA and KAOA is an independent enactment altogether hence the answer in the table “ is silent “.
It is all about submitting the property by the Sole Owners or all of the owners to the provisions of Karnataka Apartment Ownership Act 1972, by duly executing and registering a Declaration as provided in KAO Act and it is nothing to do with Registering the Association and it is misunderstood and wrongly guided by most of the members.
The KAO ACT 1972 describes the necessity for submission of Deed of Declaration, contents of Deed of Declaration, Contents of Bye laws, obligations of Apartment Owners, sharing on common expenses by Apartment Owners, etc.
It is very clear that this Karnataka Apartment Ownership Act 1972, is for maintenance of Apartments, POST possession of Apartments of all Owners.
Hence, KAOA (The Karnataka Apartment Ownership Act 1972) is not pertaining to Registration of Apartment Owners Association.
Also refer to the FAQ issued by: https://www.karnataka.gov.in/karigr/Documents/Registration%20of%20Flats%20and%20Apartments.pdf
Q 1 What are the cases to which the Apartment Act is applicable ?
Ans The Act is applicable in cases where owner or all owners sign the required declaration and register the same as provided in the act. It applies to the
apartments used for residential purpose
Q 4 How to acquire ownership under Apartment Act?
Ans The deed of apartment should be signed and registered (Please see Karnataka Apartment Ownership Act 1972 and Rules 1975 for details)
Q10
Is it not possible to become owner of flat/apartment by purchasing undivided interest in land only,through a sale deed ?
Ans It is not possible to become owner of flat/apartment by describing only undivided interest in land in the sale deed.
Q 11
What are the precautions to be taken while purchasing flat/ apartment?
Ans : (vii) Verify whether deed of declaration and Co-operative society or company is formed and registered.
KAOA completes the process of creating proper “title “of the flat by registering the Deed of Declaration in Form “A” by sole owners or by all Owners and execution of Form “B” and Deed of apartment by all Owners.
It is the responsibility of the Builders to prepare and register the Deed of Declaration in form “A” with Sub Registrar office along with its bylaws.
This deed of declaration need to be registered by the Builders much before conveying the sale deed to the individual home buyers and reference of this Registered Deed of declaration to be mentioned in the Sale deed.
Subsequently every individual Owners need to submit a declaration in Form “B” upon registering the sale deed and Deed of Apartment.
The Builder should hand over the Registered Deed of Declaration and Form “B” along with the registered byelaws, upon forming the Association of Owners, under Karnataka Co-operative Societies Act 1959 or under Company’s Act 2013. (Earlier 1959).
The Association Managing Committee shall submit the certified copies of Deed of Declaration, Byelaws and Form “B” to the competent authority, within 30 days* of its first General Body meeting , and this completes the process of KAOA.
However, in case of any genuine deficiency observed in the Deed of declaration and byelaws, it is interpreted by Legal experts, that , those deficiencies can be approved/amended in the first General Body of the Association, re-registered with the authorities concerned . Logically, I stand with this interpretation as well.
Current Scenario:
The Builders (Sole owners) are not registering the Deed of Declaration in “Form A” before sale deed registration and only few reputed Builders does this.
Hence, the All owners are put in to hardship and the KAO Act is interpreted now and few Legal experts are of the opinion that all owners now can jointly complete the process of creating proper “title “to the apartment by submitting the Deed of declaration and registering the byelaws with 2/3 rd. majority of Owners joining to- gather in the Sub-Registrar office and however, this process is continued till achieving 100% of the owners submits the Deed of Declaration.
To complete this process by all owners, a special power of Attorney is obtained for specific purpose of submitting the Deed of declaration and signing of “form B”. There is a lot of difference of opinion in this process but, logically I find no harm in following this process as there is no other option available.
Further the Association has to be registered either under Karnataka Co-operative Societies Act 1959 or as per Companies Act 2013.
Only upon registering either with Karnataka Co-operative Societies Act 1959 or as per Companies Act 2013, the Owners have grievance redressal option to approach the concerned Registrars with their complaints about their Management Committee’s function, duties, Challenging the elections, decisions, etc. as per the Byelaws or MOA without approaching the Court of Law.
The Association Managing Committee shall submit the certified copies of Deed of Declaration, Byelaws and Form “B” , to the competent authority – Registrar of Co-operative societies, within 30 days* of its first General Body meeting , and this completes the process of KAOA.
While Registrar of co-operative society is named as competent authority as per KAO Act 1972, but his duties, rules and regulations are not elaborated.
Of course there are lacunae in KAO Act 1972, which need to be addressed by proper amendments as it is 45 years old Legislation, which never underwent any amendments. Hence, we must look on below implementation / enforcement Lacunae of Karnataka Apartment Ownership Act 1972:
Lacunae 1:
3 (f) “common areas and facilities” unless otherwise provided in the Declaration or lawful amendments thereto,.
This is very critical and the Builder may intentionally, few areas keep out of "common area" definition, it will play havoc with this protection:
Lacunae 2 :
The Role and responsibilities of the competent authorities to be elaborated further with rules and regulations.
Lacunae 3 :
The Sub-registrar offices to be strictly advised to track the details of Deed of Declaration reference while registering the sale deed pertaining to Apartments. Hence this should be made mandatory to mention in the schedule exclusively.
Suggestion 1 :
Govt. of Karnataka should come out with a scheme to bring all the apartment in to the provisions of KAO Act , where the Builders have failed in their responsibilities to submit the D O D and Bye laws.
Suggestion 2 :
GOK can also bring all commercial properties, like Maharashtra, under this ACT by suitably amending it. {Provided that, no property shall be submitted to the provisions of this Act, 3 ( unless it is used or proposed to be used for residence, office, practice of any profession
or for carrying on any occupation, trade or business or for any other type of independent use ) }
Let us work further on identifying the lacunae and suggesting the practical amendments to the KAO ACT instead of harping around on.
M.S.SHANKAR
Note:
Let us proceed further to discuss on KCS and Companies Act applicability and its Lacunae and suggestions.
RERA will overrule KOFA on its applicability where it conflicts and contravenes and however, KOFA will be in place, to cover those projects which is not covered under RERA.
In spite of fact that, while KOFA is in place for 4 decades, none of us have seen its practical application and enforcement to protect the Buyers and it remained all these years as “ paper tiger” and let it continue.
From: Mathew Thomas
[mailto:mathew...@gmail.com]
Sent: Saturday, January 12, 2019 12:27 PM
To: Col sudhir Chakraborty; Lancha Mukta Karnataka Nirmana Vedike -
RERA, HOMEBUYERS & AFFECTING ACTS; C N Kumar; Shankar Srinivasan;
Muralidhar Rao; Sanjay Vijayaraghavan; sudhir pillai; vidya goggi; Subroto
Chakraborty; Ajit Naik
Subject: Clarifying Sudhir Chaks Queries
Saturday, 12 Jan 2019
Hi,
I have attached a 'Table of Comparison' between RERA, KAOA and KOFA which, perhaps answers most of Sudhir's questions.
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Shankar Srinivasan
RERA Section : 17. (1) The promoter shall execute a registered conveyance deed in favour of the allottee along with the undivided proportionate title in the common areas to the association of the allottees or the competent authority, as the case may be, and hand over the physical possession of the plot, apartment of building, as the case may be, to the allottees and the common areas to the association of the allottees or the competent authority, as the case may be, in a real estate project, and the other title documents pertaining thereto within specified period as per sanctioned plans as provided under the local laws:
Provided that, in the absence of any local law, conveyance deed in favour of the allottee or the association of the allottees or the competent authority, as the case may be, under this section shall be carried out by the promoter within three months from date of issue of occupancy certificate.
- The same section 17 (1) continue to say that- Provided that in the absence of any local law, conveyance deed in favour of the allottee or the association or the competent authority, as the case may be, under this section shall be carried out by the promoter within 3 months from date of issue of occupancy certificate.
- If in case there is no provision for registering conveyance deed in favour of Association, ( this provision is not there now in Karnataka,) conveyance deed in favour of the Allottee ( as usually now how it is being done) or the association…… shall be carried out by the promoter, within 3 months….
- Hence we need not worry, that this section will not make KAO redundant.
- However, RERA may not over ride KAO Act, as this is an exclusive enactment which comes in to vogue only POST Sale / RERA – Handing over of possession and taking over of the maintenance by the association.
M.S.SHANKAR
Ajit Naik
From: Shankar Srinivasan <msshan...@gmail.com>
Date: Wed, 16 Jan 2019 at 22:18
Subject: RERA - KARNATAKA CHAPTER KAOA Act - Rera Section 17(1)
To: Ajit Naik <ajit....@gmail.com>, Anil Kalgi <kalg...@gmail.com>
Cc: Shiva Kumar <legaladv...@gmail.com>, Lancha Mukta Karnataka Nirmana Vedike - RERA, HOMEBUYERS & AFFECTING ACTS <lmknv-rera-homebuyer...@googlegroups.com>, C N Kumar <c...@advantageofindia.com>, Muralidhar Rao <mura...@gmail.com>, Sanjay Vijayaraghavan <san...@gmail.com>, sudhir pillai <sudhir...@gmail.com>, vidya goggi <vidya...@hotmail.com>, Subroto Chakraborty <such...@gmail.com>, RERA for Karnataka <rera-for-...@googlegroups.com>, Col sudhir Chakraborty <chak...@hotmail.com>, Mathew Thomas <mathew...@gmail.com>
RERA Section : 17. (1) The promoter shall execute a registered conveyance deed in favour of the allottee along with the undivided proportionate title in the common areas to the association of the allottees or the competent authority, as the case may be, and hand over the physical possession of the plot, apartment of building, as the case may be, to the allottees and the common areas to the association of the allottees or the competent authority, as the case may be, in a real estate project, and the other title documents pertaining thereto within specified period as per sanctioned plans as provided under the local laws:
Provided that, in the absence of any local law, conveyance deed in favour of the allottee or the association of the allottees or the competent authority, as the case may be, under this section shall be carried out by the promoter within three months from date of issue of occupancy certificate.
Ajit: Proviso Not applicable to us.
- The same section 17 (1) continue to say that- Provided that in the absence of any local law, conveyance deed in favour of the allottee or the association or the competent authority, as the case may be, under this section shall be carried out by the promoter within 3 months from date of issue of occupancy certificate.
Ajit: Proviso Not applicable to us
- If in case there is no provision for registering conveyance deed in favour of Association, ( this provision is not there now in Karnataka,) conveyance deed in favour of the Allottee ( as usually now how it is being done) or the association…… shall be carried out by the promoter, within 3 months….
Ajit: Then, What is the meaning of section 89 of RERA. It is a legal question and GOK should take legal opinion on it. I have unofficially put on motion. Government need not respect our views. They have to take proper legal action. Let there be correct interpretation of RERA provision.
- Hence we need not worry, that this section will not make KAO redundant.
Ajit: Every thing depends on opinion given by the legal cell. We shall also insist for legal opinion rather than doing wrong thing. For laymans reading, there is inconsistency in implementing section 17(1) and KAOA basic principle. Moreover, there is mention of the contents of section 17(1) in three other sections.
- However, RERA may not over ride KAO Act, as this is an exclusive enactment which comes in to vogue only POST Sale / RERA – Handing over of possession and taking over of the maintenance by the association.
Ajit: For answering your above views, please answer my 3 questions in another email.
M.S.SHANKAR
Ajit N. Naik