How best can Residential Communities align their administrative decisions to legal frameworks?

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If you have recently bought an apartment in a new residential complex, then you will know that the owners are required to form an association or society to collectively administer and maintain it. But many of us, who are unaware of the applicable  laws and regulations, tend to flounder in this new task,  follow a few under-informed persons and rush into situations that land us into prolonged litigation with other owners or stakeholders such as vendors. Many focus on a few specifics in the fine print without understanding the larger picture, thus falling into confusion and conflict at a later stage. Sometimes associations unknowingly take decisions which violate the fundamental rights of the residents leading to civil court cases which are damaging to all parties. Sometimes, government advisories which are not enforceable are directed by associations, leading to embarrassment when they are not followed and cannot be legally supported.

Let’s take a few examples to illustrate these situations.

A.  An eight year old association  decides to ban the keeping of pets by residents, through a majority vote in an Annual General Body Meeting (AGM).

B.  An association decides to prioritise common facilities for the owners of apartments, thus denying  proportionate use by the tenants.  

C.   An association bans the use of water during Holi celebrations based on advisories issued by municipal authorities.

D.  An association decides to restrict and charge vendors a fee for selling their products or services within the community.

E.   Owners decide to remove tennis courts and use the land for a mini-football ground, through a majority vote in an AGM.

F.    An association fines some residents for providing charged services/products such as yoga lessons or home cooked food in their apartments.

G.   An association lays down the wage rates for domestic helps working in their community.

These are all common issues but surprisingly complex and many have entailed long drawn litgation even reaching High courts for a resolution.  In many cases,  the reasons for escalation and being prolonged, were that owners or their associations have been oblivious to the more fundamental rights of citizens and assumed that association decisions especially through majority voting in AGMs are binding.

So, before we analyse and find the right legal standing on each of the above situations, lets take a look at the legal framework and hierarchy in India, as it applies to residents. The chart below may seem overly simple, but adequate to guide us.

It is clear that Association/Society Bye-laws must align with Constitutional rights of citizens and all the higher laws and regulations. In some cases, National laws and regulations overlap with those of the State and may very rarely be at variance. In such cases, clauses are invariably included indicating which is applicable. For example, in the RERA 2016, it is mentioned that local laws such as Karnataka’s Ownership Flat Act will take precedence in some aspects.

Sometimes laws are enacted but are impossible or extremely challenging to implement, leading to infringements by most citizens, especially if they are unreasonable. In many such situations, it has been found to be prudent to have these laws repealed. The same holds true for Association Bye-laws.

With the above framework in mind, let us apply ourselves to each of the difficult situations listed above. We have repeated the situations and then added our analysis :

A.    An eight year old association  decides to ban the keeping of pets by residents, through a majority vote in an Annual General Body Meeting (AGM). The questions that need to be asked - Does this infringe on individual rights to keep pets for their well-being? Does keeping pets infringe on the individual rights of others to safety? Does it conflict with the sale agreement/ society laws at the time of purchase by a buyer? If the buyer has invested his life savings in purchasing an apartment where there was no such ban on pets, would it be fair to change that rule later? Does this decision violate any directions by courts or government bodies?

B.    An association decides to prioritise common facilities such as badminton courts for the owners of apartments, thus denying  proportionate use by the tenants.   The questions to ask – were the tenants apprised of this before they rented their apartment? Do their rental agreements state such an arrangement is acceptable to them? Do owners who have rented out agree to reduce use of facilities by their tenants ( since it will lower their rental value)? Do tenants have a right to demand a reduction in their rents due to this?

C.    An association bans the use of water during Holi celebrations based on advisories issued by municipal authorities.  Questions – Are the advisories enforceable by law and implementable by security guards? Do the advisories quote State laws or regulations? Can the association instead limit use to specific areas to reduce water consumption and spoiling of the façade of the buildings and facilities?

D.     An association decides to restrict apartment brokers and vendors and charge them a fee for selling their services or products within the community.   Questions – Does this restrict the individual rights of residents to choose their services or products? Does this violate the tenets of free competition as per Competition law, 2002? Are the residents aware of and accepting of higher prices for the services/products due to the fees charged by the association?

E.      An association decides to remove tennis courts and use the land for a mini-football ground, through a majority vote in an AGM.  This is similar to situation A.  Some owners may have purchased apartments in the complex so as to avail of the tennis courts. Would it be fair to remove them without their explicit consent?

F.         An association fines some residents for providing charged services such as yoga lessons or home cooked food from their apartments.   Many association Bye-laws state that commercial activity is not permitted, but do not define what is construed by it. In absence of such clarity, can owners or tenants be penalised for something they were not made aware of before purchasing or renting an apartment? Municipal Zoning laws state restrictions on dangerous/unhygienic activity in residential areas. Are these activities violative of them? Does the restriction infringe on an individuals right to self-employment?

G.          An association lays down the wage rates for domestic helps working in their community.  Are the wage rates in keeping with the State’s minimum wage rates?  How can this be enforced since employers have hugely varying needs and will tip their helps with gifts or provide assistance in health care etc? Can the association keep track of the scores of different arrangements?

These are but a few of the situations that residential communities face. Today’s AI platforms can help communities find the answers to many such complex and conflicting situations since they draw on Court verdicts and published laws and regulations. But even these can sometimes go wrong. Turning to lawyers is another option, but these may not be easily available or may charge considerably. Relying on a structured and a questioning approach as illustrated above may provide members of associations with better answers for their unique situations, and  a litigation-free and implementable policy framework.

Did you find this article useful?  Do you have insights or experiences in such situations which can benefit others? We look forward to  receiving your views at Contact@CoCreed.in