Tenants, know your rights

When Karan Singh leased an apartment in a plush housing society in Mumbai a year-and-ahalf ago, little did he realise that he would have to face problems. When he moved in, he was asked to pay a monthly fee of 1,000 and 1,500 for two parking spaces for his cars. After three months, the rates were hiked to 1,500 and 2,000. “Recently, the society increased the fee to 3,000 and 10,000,” says an exasperated Singh. He approached the flat owner, who took up the matter with the society secretary. “The secretary has not given us a satisfactory answer on the hike in charges every three months. We may have to take legal action if he refuses to budge from his stand,” says the 40-year-old bank executive.

Singh’s problem is not unique. In fact, he is lucky to have a landlord who favours him In many cases, owners refuse to get involved in disputes between tenants and housing societies. “Tenants are bullied by both the owner and the housing society because they are neither legal owners nor members of the society. However, there is legal recourse against such harassment tha is open to tenants,” says Vinod Sampat, re estate lawyer and president, Cooperative Societies Residential Users Association.

Negotiating with the owner
Your rights as a tenant depend largely on the nature of your lease agreement. There are two types of agreements: rental and leave & licence. Under the former, there is a transfer of interest, wherein the tenant cannot be made to vacate the premises, except on the grounds for eviction that are stipulated by the Rent Act or the State Rent Control Act, under which the agreement falls. On the other hand, a leave & licence agreement stipulates that a tenant can be asked to vacate without any reason after a month’s notice or as has been agreed to by the two parties. Also, rental agreements come under the State Rent Control Act, so the owner cannot fix his own rent. However, in the case of a leave & licence agreement, the owner can decide the rent he wants to charge. The latter gives more control to the owner over the property, which is why it is more common than the former.

As a tenant, you need to ascertain your rights before you sign the agreement. Negotiate with the owner on the things that are important to you. Will you get a fully furnished house or can you install your own fixtures? How often and at what time will the owner come to inspect the property? If you inform the owner of a pending repair work, how much time will he take to respond? “Such details should be decided before the agreement is signed. Though no owner will allow a tenant to alter the basic structure of the house, you can ask for changes that you deem necessary,” says Shveta Jain, director, residential services, Cushman & Wakefield.

After the contract has been designed to your and the owner’s satisfaction, you ould get it registered, so that neither rty can harass the other in the future. So, has been decided that seepage or acked walls should be repaired within 30 ys, and the owner fails to address the ue, you have the right to get the work ne and deduct the expenses from the t. In case the owner raises an objection, u can approach the police or a civil court the basis of the registered agreement. wever, expenses on renovation or mainance caused by your own negligence, ch as a broken window pane or damaged ors, will not be considered for deduction m the rent.

Handling the housing society
Housing societies tend to impose their own rules, which are not legally binding. For instance, some societies restrict the owners from leasing their apartments to single people, nonvegetarians or those with pets. However, according to a 1990

Supreme Court ruling in the Sanwarmal Kejriwal versus Vishwa Cooperative Housing Society case, a member can keep the tenants of his choice.

Apart from this, housing societies tend to charge a premium for maintenance and other facilities from the tenant. “Ideally, the society cannot charge extra from the tenant because the latter does not deal with the society, just the owner,” says Ravi Goenka, advocate, Goenka Law Associates. However, under the pretext of providing additional security because of the presence of non-members, that is, the tenants, a society may levy additional charges. Such charges have to be arrived at mutually with the consent of all members, including the owner. “While a society is allowed to frame rules for its administration, it cannot force tenants to pay fees that are exorbitant and oppressive in nature. These arbitrary charges tend to be in violation of the constitution and, hence, can be challenged in court,” says Sampat.

Besides, the society has to frame rules that conform to the model bye-laws of the cooperative housing society. Most societies are members of the National Cooperative Housing Federation of India (nchfindia.net) and have to follow the bye-laws laid down by it. “If a tenant believes that a charge has been arbitrarily levied on him, he should ask the society to specify in writing the section of the model bye-laws under which it has been charged. If the society has come up with a charge that it cannot legally impose, the tenant can raise objections, and if need be, approach a cooperative court,” advises Goenka.

In case of harassment or unfair discrimination by the society, the tenant should approach the cooperative court along with the owner. He cannot do so on his own since he is not a member of the housing society, while the owner is. If, on the other hand, the tenant is harassed by the owner or refuses to accompany him to the court, he can approach the police as well as the civil court. Cooperative courts are set up by the state government in some districts, but if there isn’t one in your state, you can approach a consumer/civil court.

Responsibilities of tenants

• Do not sub-let the property to a third person.

• Pay your rent on time.

• Keep the property in good order.

• Allow the owner to inspect the property at a mutually agreed upon time.

• If you have friends or relatives staying with you, inform the owner.

• Give the owner access to property to carry out repairs

Source : ET

Can housing societies refuse tenants?

Sumanta Layak, 25, is used to rejection. Whenever he has to look for a house on lease in the National Capital Region, he goes through a harrowing time. Layak is well-qualified and has no criminal history, yet, he is refused rental accommodation by most owners of housing societies. The reason? He is single. “Being single is the biggest disadvantage if you are looking to rent a house in the metros. This is because most housing societies disallow their members from leasing their properties to bachelors. So, even if the owner wants to give it on rent to a group of singles, the housing society won’t give him a no-objection certificate (NOC),” he explains.

According to real estate experts, being single is not the only reason that people find it difficult to rent a house in the top cities, though it is the most common one. “The society feels that a group of singles is likely to rough up the place and create nuisance for other society members. Besides, bachelors typically don’t stick to a place for long and this doesn’t provide stability in rental income compared with that from families,” says Ramesh Prabhu, chairman of Maharashtra Societies Welfare Association.

The other reasons for refusal (see box) include keeping pets, such as dogs and cats, for fear that they will dirty the society or harm the children. “Besides, people with certain meal preferences are known to have been denied tenancy. There were some media reports as well about people belonging to a certain religion being denied permission by the housing society,” says Prabhu.

Can housing societies frame their own laws?
If legal experts are to be believed, the housing societies can indeed frame their own laws. According to Ravi Goenka, advocate, Goenka Law Associates, there are broad guidelines, or bye-laws, that every housing society adopts when it is registered. These rules and regulations govern the day-to-day functioning of the housing society and are crucial to its smooth running. “These guidelines are typically framed under the Co-operative Societies Act, which is a Central Act. This provides specific guidelines for a society to be registered with the municipal corporations, its governance structures, common area maintenance rights, dos & don’ts, accounting practices and various other covenants related to leasing/ purchasing a house within the society,” he explains. The Act also offers a degree of flexibility to societies to add regulations of their own, he adds. “For instance, if the housing society has made a rule fortenants, according to which they
cannot park their vehicles in the parking slots allotted to members, then they have every right to enforce it,” he explains.

Can the housing society overrule a flat owner?
Om Ahuja, CEO, residential services, Jones Lang LaSalle India, explains that though it is the legal right of the owner to lease his property, the housing society in which the flat is situated, too, has a say in it. “Individual societies are legally empowered to deny tenancy based on their bye-laws. In many cases, such bye-laws are interpreted in a certain manner in order to achieve this. However, they have no constitutional right to do so,” says Ahuja.

Besides, the housing societies that impose additional maintenance charges on the flat owners who have leased their property are legally allowed to do so under The Societies Act.

According to Goenka, bye-law 43(2) of the Co-operative Housing Societies Act mentions a proper format as per which a member of the housing society can sublet his house to tenants.

Can the bye-laws be challenged?

Vinod Sampat, president, Cooperative Societies Residential Users Association, and a real estate lawyer, explains that any regulation which infringes on the fundamental rights of an individual can be challenged in the court of law. “The housing society regulations don’t have the same stature as that of a law. Every Indian citizen has the right to reside anywhere in the country and discrimination is not allowed on the basis of religion, caste, sex, eating habits or marital status,” he explains.

So if a tenant feels a housing society has not been fair, he can file a police complaint against it, claiming infringement of his rights as a citizen. The member, too, can take legal recourse, such as approaching the civil or the cooperative court. He can also appeal to the deputy registrar of housing societies concerning his grievances.
In fact, there have been several cases, where the courts have ruled in favour of the owner and against the housing society (see box). According to Sampat, as per a recent court judgement, pets such as dogs and cats are also regarded as family members, and tenants have every right to keep them. “Besides, it is not mandatory for the housing society to issue noobjection certificates. What is mandatory is police verification,” he adds.

Challenging society bye-laws
Though the courts consider each case independently, here are some rulings in favour of the home owner.

• In the Sanwarmal Kejriwal versus Vishwa Co-operative Housing Society Ltd & Ors case, 1990, the Supreme Court had upheld the member’s right to keep tenants of his choice.

• In the Bombay High Court ruling, in 2000, Justice DY Chandrachud rejected the amendment of bye-law framed by the St Anthony Cooperative Housing Society, which wanted to restrict the membership to Catholics.