COMMON EXPENSES AND MAINTENANCE IN FLATS

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The concept of apartments is of recent origin in Bangalore, and first apartments were constructed in Malleswaram an extension known for bungalows with vast open space and gardens. 

Apartments have certain special features like owners owning undivided share of the land, sharing facilities payment of maintenance charges, which necessitated separate statute.

The State of Maharashtra was first to enact “Maharashtra Apartment Ownership Act 1970, which came into force from February 19, 1971.

Karnataka Apartment Ownership Act, 1972 was first published in Karnataka Gazette extraordinary on 23.07.1973, and came into force from 01.04.1975.

Apartment, Flat and Building etc.

Apartment is defined in Karnataka Apartment Ownership Act 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.

Flat, according to Flat Ownership Act is 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.

A building contains 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. 

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Common areas and facilities

The unique feature of apartments is common areas and facilities, which is common to all owners, have to be shared with others and none will have absolute ownership over them.  This includes the land on which building is constructed, the foundation, columns girders, beams, supports, main works, roof halls, corridors, lobbies, stairs, stairways, fire escapes, entrances and exits of the building, basement, cellars, yards, gardens, parking areas, storage spaces, the premises for lodging of janitors, persons employed for management of property, installations of central services like power, light, gas, hot and cold water, heating, refrigeration, air conditioning, incinerating, elevators, tanks, pumps, motor fans, compressors, ducts, and in general all apparatus and installations existing for any common use.  Further, community and commercial facilities and all other parts of the property necessary or convenient to its existence, maintenance, safety or normally in common use.  However, all such common areas and facilities have to be mentioned in deed of declaration to be registered with the jurisdictional sub-registrar.

When there are common areas and facilities expenditures is required to maintain, to upkeep them. The expenses towards maintenance and upkeep of common areas and facilities are common expenses or maintenance charges, which has to shared by all apartment owners, based on the area of their apartments common expenses means “all sums lawfully assessed against the apartment owner” by the Association of apartment owners expenses of administration, maintenance, repair or replacement of common areas and facilities, expenses and expenses agreed as common expenses in byelaws.

Every apartment owner has to share the common expenses based on the super built area of his apartment and has to be paid periodically.

Any unpaid common expenses shall constitute a charge on such apartment, except charge if any on apartment for payment of government and municipal taxes and all sums unpaid on first mortgage of the apartment as per section 19 of the Act.

As the common expenses are shared there cannot be any loss but chances of surplus funds are there, which is common profits.  Common profits means balance of all income, rents, profits, and revenues from common areas and facilities remaining after deduction common expenses.

Property

Like various commonly used words having different meaning the property also had distinct meaning as the 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.

Deed of declaration

If any apartment owner wants to be governed buy the provisions of this Act, he shall execute a deed of declaration of apartment under this Act, which has 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, each apartment, percentage of undivided interest in common areas and facilities for each apartment, name of the owner, voting rights, use of each apartment.

Separate assessment

Each apartment with its percentage of undivided interest in the land, common areas facilities will be deemed as separate property for assessment of tax on land and building.

Status of apartments

Each apartment together with its undivided interest in land, common areas constitute a heritable and transferable immovable property.  Accordingly the apartment owners may transfer his apartment with its undivided interest in land, common areas, facilities by way of sale, mortgage, lease, gift, exchange in any other manner, may also make bequest of the same under law applicable to transfer and succession of immovable property.