The Delhi Apartment Ownership Act, 1986, was an effort by the parliament to

streamline the law relating to the ownership of individual apartments in

multistoreyed buildings. The preamble states that it is an Act to provide for the

ownership of an individual apartment in a multistoreyed building and of an

undivided interest in the common areas and facilities appurtenant (attached) to

such apartment and to make such apartment and interest heritable and transferable

and for the matter connected therewith or incidental thereto. Individual ownership

of apartments in multi-unit buildings requires the establishment of a complex set of

relationships and interests in the property.

The form of property ownership called condominium involves individual
ownership of part of the property with the rest of the building (the common
property) co-owned by those who own the other apartments. The common property
comprises the roof, the faade, the entryway, stairways, hallways, common walls,
mechanical systems, structural components of the building etc. The interest of the
owner of an apartment in the other parts of the common property must be clearly
denoted in the Deed of Apartment before the registration, including the percentage
or share of ownership of the common property attached with each apartment.

This also allows ownership and other rights, including contract rights, to be
established and made enforceable. This is so because some of the most important
rights and obligations of the individual owners are measured by the percentage or
share of the ownership interest in the common property. The owners fees to
maintain the common property, for example, is usually determined by the relative
size of the apartment: eg the owner of the largest apartment pays the most to
maintain the common property. Others with flats of similar size pay an equal
amount and so on.

The Act was passed to address important residential issues and received the
assent of the president on December 23, 1986. It is applicable to all multistoreyed
buildings constructed by group housing cooperative societies or any other body or
agency. There was a growing need for the Act, arising out of the increasing number
of apartments coming up in Delhi and the resultant litigation. It sets at rest many
issues relating to the rights and obligations of apartment owners, such as the
question of inheritance and ownership, the right to common areas and facilities, the
restrictions on transfers such as sale, mortgage, lease etc.

Present status of the Act

Though the Act is in force yet, unfortunately, it has not been implemented
properly. One reason could be the obvious clash of interest between the promoters
of the mult-storeyed buildings (those responsible under the Act to get the deeds of
apartments executed and registered) and the apartment owners. The promoters are
reluctant to get the deed executed as they tend to lose their ownership over the
common areas and facilities for which they charge apartment owners for
maintenance etc. The apartment owners too are reluctant pay the exorbitant
administration and transfer charges (approximately at the rate of R700 per
square feet) demanded by the promoters and builders under the flat buyer
agreement to get the apartments transferred in their name in the books of the
builder. This exploitative clause in the flat buyer agreement was surprisingly not
challenged by the Belaire Association before the Competition Commission of India
(CCI) in a recent case filed against DLF. It is only after the agreement has been
signed that the builder can be expected get the deed of apartment executed for the
individual owner. The apartment owners also hesitate to approach the competent
authorities under the Act as they dont want the agreement to sale coupled with the
possession registered by paying stamp duty to the government. The competent
authorities are under no obligation to enforce compliance of the provision of the Act
either by such promoters/builders or by individual apartment owners. There are
only three named competent authorities, ie secretary to the government of NCT of
Delhi, vice chairman, Delhi Development Authority (DDA) and the land and
development officer (L&DO) in the Central government, which is a highly centralised
infrastructure.

On a public interest litigation (PIL) filed since 2007 (O S Bajpai vs the

administrator, Lt Governor of Delhi), that sought directions for the proper
enforcement of the Act, the Delhi High Court vide judgment dated July 13, 2012,
has directed that in the event of the apartment owners applying to the competent
authority, it shall, after granting opportunity of hearing to the promoters and
builders and after satisfying itself about the transfer of apartment to the
promoter/builder and possession thereof, pass such orders directing
promoters/builders to execute and register the deed. If the promoter/builder fails to
do so, the authority should execute and register the deed.

Thus, the land owning agencies, DDA and L&DO, can itself execute and register
the deed of apartment if approached by individual apartment owners with complete
documents of title. This will enable the flat buyers to get exclusive rights over their
apartments. They do not then have to depend on the promoter to transfer and
mortgage the property, provided they are in a position to approach the competent
authority - ie theyve get their apartments transferred in their names by paying the
transfer charges.

However, in spite of this direction by the Delhi High Court, the Act is not
implemented properly. The decentralisation of the competent authorities under the
Act (ie non nomination of area-wise competent authorities, though directed by the
Delhi High Court in the above judgment) is one of the reasons as the promoters
and builders often cite this as an excuse for not going ahead with execution of the
deeds of apartments.

Shortcomings in the implementation of the Act

An excellent piece of legislation, the Act, if properly implemented can bring
about significant improvement in the lot of apartment owners by providing them
exclusive ownership, heritable and transferable rights. However, due to little
awareness about the features of the Act coupled with the vested interests of both
promoters/builders and apartment owners, and reluctance of the apartment owners
to apply for execution and registration of the Deeds, the Act has made little impact.
The absence of any penal provisions in the Act has also contributed to this
ambiguity and made it a virtual toothless tiger! How can the Act be misused? The
above mentioned shortcomings, particularly, the absence of penal provisions, has
encouraged promoters and builders to avoid complying with the Act. That is also
the reason why the number of deeds of apartments executed and registered in
Delhi remains insignificant.

Further, by recognising the title of benami transactions for sale and purchase of
apartments, the Act has encouraged dubious transactions. The Act can also be
misused by such benami acquirers who may not be held responsible for any breach
of the model byelaws of the apartment owners association in case they have either
not furnished the undertaking for compliance with the terms of conditions of the
deed of apartment or in case the original owner has not executed such a deed or
get it registered.

THE UTTAR PRADESH OWNERSHIP OF FLATS ACT,

1975

(U.P. Act No. 50 of 1975)

(AS Passed by the Uttar Pradesh Legislature )

CONTENTS

1 Short title and extent 13 Bye-Laws

2 Application of the Act 14 Separate Assessment

3 Definition 15 Charge of property for common property

4 Flat to be transferable and heritable expenses 16 Insurance

5 Common areas and facilities 17 Disposition of property or destruction or damag

6 Compliance with bye-laws ,covenants. etc 18 Legal Proceedings

7 Certain work prohibited 19 Act to be binding on owners of tenants. etc

8 Encumbrances against flats 20 Joint and several Liability of vendor

9 Common profits and expenses 21 Renewal of doubts

10 Contents of Declaration 22 Power to make rules

Withdrawal from the provisions of etc. for

11
unpaid common expenses. Act.

12 Instruments of Declaration etc.

An Act to providefor matters connected with the ownership and use of individual flats in
buildings consisting of four or more flats.

It is hereby enacted in the Twenty-sixth Year of the Republic of India as

follows :-

1. Short title and extent.-

(1) This Act may be called the Uttar Pradesh Ownership of Flats Act, 1975.
(2) It extends to the whole of Uttar Pradesh.

2. Application of the Act.-

This Act applies only to property, the sole owner of all the owners of which submit the same
to the provisions of this Act by duly executing and registering @a Declaration setting out the
particulars referred to in Section (10) :

Provided that no property shall be submitted to the provisions of this Act, unless it is
actually used or is proposed to be used for residential purposes,

Provided further that the sole ower or all the owners of the land on which building is
situated may submit such land to the provisions of this Act with a condition that he or they,
shall grant a lease of such land to the owners of the flats, the terms and conditions of 'the
lease being disclosed in the declaration either by annexing a copy of the instrument of lease
to be executed m the declaration or otherwise

3. Definitions.-

In this Act,unless the context otherwise requires-

(a) 'flat' means part of a property having a direct exit to a road, street or highway or to a
common area leading to such road, strret or highway which together with its undividied
interest in the common areas and facilities forms an independent residential unit;
'building' means a building or more than one buildings situated in the same locality
containing, in all four or more flats;

'bye-laws' means bye-laws made under Act;

Common area and facilities' includes-- !

the land on which a building is located and all casements. rights and appurtenances
belonging to the land and the building.,

the foundations, columns. girder, beams, supports, main walls. roofs, halls, corridors,
lobbies, stairs, stair-way, fire escapes and entrances-and exit of the building;

the basements cellars yards, gardens, parking areas and storage spaces..

the premises for the lodging of janitors or persons employed for the management of the
property.,

installations of common services. such as power, light. gas, hot and. cold water. heating,
refrigeration. air conditioning and sewerage;

the elevators, tanks, pumps, motor, expressers. pipes and ducts and in general all
apparatus and installations existing for common use;

such other common facilities as may be specially provided for in the declaration.,

all other parts of the properly necessary or convenient to its existence, maintenances and
safety or normally in common use-,

'common expenses' means expenses of administration, maintenance, repair, or replacement

of the common areas and facilities and all other sums assessed against the owners of flats
by the Association of Owners of the flats;

'common profits' means the balance of all income, rents; profits and revenues from the
common areas and facilities remaining after the deduction of the common expenses;

'competent authority' means the Housing Commissioner appointed under the Uttar Pradesh
Avas Evam Vikas Parishad Adhiniyam, 1965;

'declaration' means the instrument by which a property is submitted to the provisions of

this Act as hereinafter provided;

'limited common areas and facilities' means those common areas and facilities which may
be designated in the declaration as reserved for use of certain flat or flats to the exclusion of
the other flats

'prescribed' means prescribed by rules made under this Act;

'property' comprises any land, any building, built or proposed to be built thereon, and the
common areas and facilities.
4. Flat to be transferable and heritable property.-

(1) Each owner of a flat shall be entitled to the exclusive ownership and possession of his
flat in accordance with the declaration.

(2) Subject to the provisions of the second proviso to Section 2, a flat. together with Its
undivided Interest In the common areas and facilities', shall constitute heritable and
transferable immovable property within the meaning of any law for the time being in force;

Provided that no flat and the percentage of undivided interest in the common areas and
facilities appurtenant to such flat shall be partitioned or sub-divided for any purpose
whatsoever

5. Common areas and facilities.-

(1) Each owner of a flat shall be entitled to an undivided interest In the common areas and
facilities In the percentage expressed in the declaration.

The percentage of the undivided interest of each owner of a flat in the common areas and
facilities as expressed in the declaration shall not be altered without the consent of all the
owners of the flats expressed In an amended declaration duly executed and registered as
required by this Act.

The percentage of the undivided interest in the common areas and facilities shall not be
separated from the flat to which it appertains. and shall be deemed to be cony-eyed or
encumbered with the flat even though such interest is not expressly mentioned in the
conveyance or other instrument.

The common areas and facilities shall remain undivided, and no suit shall lie at the instance
of any owner of the flat or other person partition or division of any part thereof, unless the
property have been withdrawn from the provisions of this Act.

Each owner of a-flat may use the common areas and facilities for., the purpose for- which
they are intended without hindering or encroaching upon the lawful rights of the owners of
other flats.

The work relating to the maintenance, repair and replacement of' the common areas and
facilities and the making of any addition or improvements thereto shall be carried out in
accordance with the provisions of this Act and the bye-laws.

The Association of Owners of flats shall have irrevocable right to be exercised by the
Manager or the Board of Manager on behalf of the Association with such assistance as the
Manager or the Board of Managers as the case may be, considers necessary to have access
to each flat from time to time during reasonable hours for the maintenance repair and
replacement of any of' the common areas facilities therein or accessible therefrom or for
making emergency repairs therein to prevent any damage to the common areas and
facilities or to other flats.

6. Compliance with bye-laws, covenants, etc.-

Each owner of flat shall comply strictly with the bye-laws and with the covenants, conditions
and restricts set forth in the declaration, and his failure to comply with any of the same
shall be a ground for an action to recover damages or for other relief or reliefs at the
instance of the Manager or the Board of Manager on behalf of the Association of Owners of
flats or, in a proper case, by an aggrieved owner of a flat.

7. Certain work prohibited.-

No owner of a flat shall do any work which would be prejudicial to the soundness or safety
of the property or hereditament or shall add any material structure or excavate any
additional basement or cellar.

8. Encumbrances against flats .-

(1) During the period the property remains subject to this Act, no encumbrance of any
nature shall be created against the property;

Provided that during such period an encumbrance may be created against each flat and the
percentage of undivided interest in the common areas and facilities appurtenant to such flat.
in the same manner as in relation to any other separate parcel of property subject to
Individual ownership.

Labour performed and material furnished for the common areas and facilities, if duly
authorised by the Association of Owner of flats, the Manager or Board of Managers !--i
accordance with this Atf, the declaration or bye-laws, shall be deemed to be performed o.-
furnished with the express consent of each owner of a flat and shall be the basis for a
charge or encumbrance under the Transfer of Property Act, 1882. against each of the flats
and shall be subject to the provisions of Sub- section (3).

(a) In the event of a charge or any encumbrance jointly against two or more flats becoming
effective, the owners of the separate flats may remove their flats and the percentage of
undivided interest In the common areas mid facilities appurtenant to such flats from the
charge or encumbrance by, payment of the fractional or proportional amounts attributable
to each of the flats affected in accordance with the percentages appearing in the
declaration.

Subsequent to any such payment, discharge or other satisfaction. the flat and the
percentage of undivided interest in the common areas and facilities appurtenant thereto
shall thereafter be free and clear of the charge or encumbrance so paid. satisfied or
discharged.

Such partial payment, satisfaction or discharge shall not prevent the person having a charge
or any other encumbrance from proceeding to enforce h-is rights against any flat and the
percentage of undivided interest in the common areas and facilities appurtenant thereto not
so paid, satisfied or discharged.

9. Common profits and expenses.-

The common profits of the property shall be distributed among, and the common expenses
shall be charged to, the owners of flats according to the respective percentages of their
undivided interest in the common areas and facilities.
10. Contents of Declaration.-

The declaration referred to in Section 2 shall be submitted in such form and in such manner
as may he prescribed and shall contain the following particulars, namely-

(a) description of the property namely the description of the land on which the building is
or is to be located, whether the land 's freehold or leasehold and whether any lease of the
land is to be granted in accordance with the second proviso to Section 2. and description of
the building or proposed building stating the number of storeys and basements and the
number of flats;

(b) nature of interest of the owner or owners in the property;

(c) existing encumbrance. if any, affecting the Property.

(d) description of each flat containing its location approximate area, number of rooms,
immediate common area to which it has access, and any other data necessary for its proper
identification.

(e) description of the common areas and facilities;

(f) description of the limited common areas and facilities, if any, stating to which flats their
use is reserved;

(g) value of the property and of such flat, and the percentage of undivided Interest in the
common areas and facilities appertaining to each flat and its owner for all purposes,
including voting.

11. Withdrawal from the provisions of the Act.-

(1) All the owners of flats may withdraw a property from the provisions of this Ant by an
instrument executed to that effect.

(2) Upon the prop" being withdrawn from the provisions of this Act, it shall be deemed to be
owned in common by the owners of flats and the share of each such owner in the property
shall be the percentage of undivided interest previously owned by such owner in the
common areas and facilities.

(3) Any encumbrance affecting any of the flats shall be deemed to be transferred in
accordance with the existing priority to the percentage of the undivided interest of the
owner of the flat in the property as provided herein.

(4) The withdrawal provided for in Sub-section (1) shall in no way bar the subsequent
resubmission of the property to the provisions of this Act,

12. Instruments of declaration, etc.-

compulsorily registerable -All instruments relating to the declaration or any amendment

thereto referred to in Section 10 or the withdrawal of a property from the provisions of this
Act referred to in Section 11 shall be deemed to be instrument compulsorily registerable
within the meaning of Clause (b) of Sub-section (1) of Section 17 of the Registration Act.
1908.

13. Bye-Laws.-

(1) Every property shall he administered In accordance with such bye-laws as may be
framed by the competent authority with the prior approval of the State Government.

The bye-laws shall provide for the following amongst other matters. namely-

(a) the manner in which the Association-of Owners of flats is to be formed, the election of a
Board of Managers from amongst the owners of flats, the number of persons constituting
the Board the number of members of such Board to retire annually, the powers and duties
of the Board, the method of removal from office of members of the Board, the power of
the Board to engage to Services of a Secretary or Manager. the delegation of powers and
duties to such Secretary or Manager;

the method of calling meetings of the owners of flats and the number to constitute a
quorum,

the election of a President who shall preside over the meetings of the Board and of the
Association of Owners of flats.,

the maintenance repair and replacement of the common areas and facilities arid payments
therefor;

the manner of collecting the share of the common expenses from the owners of flats,

any other matter considered to be necessary for the administration of the property.

14. Separate Assessment.-

Notwithstanding anything to the contrary contained in any law for the time being in force
each flat and its percentage of undivided interest in the common areas and facilities shall
be deemed to be a separate property for the purpose of assessment of rates and taxes
leviable by a local authority under any law for the time being in force

15. Charge of Property for common expenses.-

All sums assessed by the Association of Owners of flats for the share of the common
expenses chargeable to any flat shall constitute a charge on such flat prior to all other
charges except charge, If any. on the flat for payment of taxes due to the Central
Government or the State Government or to any local authority under any law for the time
being In force.

16. Insurance.-

(1) The Manager or Board of Manager if required by the declaration or the bye-laws or by a
majority of the owners of flats or at the request of a mortgagee having a first mortgage
covering a flat, shall have the authority to, and shall, obtain insurance for the property
against loss or damage by fire and such other hazards, under such terms and for such
amounts as shall be required or requested.

Such insurance coverage shall be written on the property In the name of such Manager or of
the Board of Managers of the Association of the owners of flats as trustee for such owner of
flats in the percentage established in the declaration.

Premium relating to such insurance shall be common expense.

The foregoing provisions for such insurance shall be without prejudice to the right to each
owner of a flat to Insure his own flat for his benefit.

17. Disposition of property or destruction or damages.-

lf within sixty days of the date of damage or destruction to all or part of the property, it is
not determined by the Association of Owners of flats to repair, reconstruct or rebuild, then
and in that event-

the property shall be deemed to be owned in common by the owners of flats;

the undivided interest, In the property owned In common which shall appertain to each
owner of a flat shall be the percentage of the undivided interest previously owned by such
owner in the common areas and facilities;

any encumbrances affecting any of the flats shall be deemed to be transferred in accordance
with the existing priority to the percentage of the undivided Interest of the owner of the flat
In -the property as provided herein,

the property shall be subject to an action for partition at the suit of any owner of a flat in
which event the net proceeds of sale together with the net proceeds of the insurance on the
property, if any shall be considered as one 'fund and shall be divided along all the owners of
the flats in percentage equal to the percentage of undivided interest owned by each owner
in the property after first paying out all -the respective shares of the owners of the flats to
the. extent sufficient for the purpose and all charges on the undivided interest in the
property owned by each owner of flat.

18. Legal Proceedings.-

(1) Without limiting the rights of any owner of a flat suits and other legal proceedings may
be brought by the Manager or Board of Mangers, in either case at the discretion of the
Board of Managers, on behalf of two or more of the owners of flats as their respective
Interest may appear, with respect to any cause to action relating to the common areas and
facilities or more than one flat.

Service of process on two or more owners of flats in any suit or other legal proceeding
relating to the common areas and facilities or more than one flat may be made on the
person designated In the declaration to receive service of process.

19. Act to be binding on owners of flat, tenants, etc.-

(1) All owners of flats. tenants of such owners. employees of owners and tenants or any
other person who may in any manner use the property, or any part thereof submitted to the
provisions of this Act shall be subject to this Act and to the declaration and the bye-laws.

All agreements. decisions and determinations lawfully made by the Association of Owners
-of flats In accordance with the voting percentage established under this Act. the declaration
or the bye-laws, shall be deemed to be binding on all owners or flats.

20. Joint and several Liability of vendor, etc. for unpaid common expenses.-

(1) Upon the sale or other grant of a flat the purchaser or grantee of the flat shall be Jointly
and severally liable with the vendor or grantor for all unpaid assessments against the latter
for his share of the common expenses up of the time of such sale or grant without prejudice
to the purchaser's or grantees right to recover from the vendor or grantor the amount paid
by the purchaser or grantee therefor.

Any such purchaser or grantee shall be entitled to a statement from the Secretary or Board
of Managers, setting forth the amount of-the unpaid assessment against the vendor or
grantor and such purchaser or grantee shall not be liable for. nor shall the flat sold or
granted by subject to a charge for any unpaid share of common expenses against such flat
in excess of the amount therein set forth.

21. Removal of doubts. -

For the removal of doubt, it is hereby declared. that the provisions of the Transfer of
Property Act, 1882 shall in so far, as they are not inconsistent with the provisions of this
Act, apply to every flat together with its undivided interest In the common areas and
facilities as those provisions apply In relation to any other immovable property.

22. Power to make rules -

(1) The State Government may by notification in the Gazette make rules for carrying out
the, purposes of this Act.

(2) All rules made under this Act shall, as soon as may be after they are made, be laid
before each House of the State Legislature while it is in session for a total period of thirty
days, extending in its one session or more than one successive sessions and shall unless
some later date is appointed take effect from the date of their publication in the Gazette
subject to such modifications or annulments as the two Houses of the Legislature may
during the said period agree to make, so, however, that any such modification or annulment
shall be without prejudice to the validity of anything previously done thereunder.