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Liability of dues of old owner of the apartment
1. There are provisions for realisation of the arrears either from the old
owner or the new owner of the apartment. Please read the Section – 16
of the West Bengal Apartment Ownership Association, 1972: Liability for
unpaid common expenses : Upon the sale of an apartment, the
purchaser of the apartment shall be jointly and severally liable with the
vendor for all unpaid assessments against the latter of his share of the
common expenses upto the time of the sale.
Commentary: Scope of the Section:-
This Section has fastened liability for payment of unpaid common
expenses both the vendor as well as the purchaser of the apartment
after sale of apartment and such liability shall be joint and several. Both
of them shall bear the said liability for all unpaid assessments against the
vendor for his share of the common expenses up to the time of sale and
will continue to subsist till the date of payment of such assessments.
Thus, this Section safeguards the interest of all apartment owners so
that one apartment owner cannot evade his liability by selling the
property to a third person or even to an apartment owner of the same
property. The use of word “sale” excludes other transfers as
contemplated in Transfer of Property Act.
Liability, joint and several:-
So far as the joint and several liability is concerned, reference can be
made to Section – 43 of the Indian Contract Act.
2. Please read also the Bye-laws – 28 of the West Bengal Apartment
Ownership Act, 1972:-
Sale of apartment to be notified to the Board:-
An apartment owner who sell or otherwise transfers his apartment shall
immediately notify the Board of the fact stating the name of the
purchaser or transferee and his address.
Similarly, the purchaser or transferee of the apartment shall
immediately, apart from executing and registering an instrument in the
form (FORM-A), as provided for in clause (ii) of sub-section (3) of Section
– 4 of the West Bengal Apartment Ownership Act, 1972, notify the Board
concerned about his ownership or interest, as the case may be, of the
apartment in question.
3. Please say “common maintenance charges” instead common expenses
fees etc or like that.
Please read Section – 15. of the West Bengal Apartment Ownership Act,
1972 : Charge for property of common expenses:-
All sums assessed by the Association of Apartment Owners for the share
of common expenses chargeable to any apartment shall constitute a
charge on such apartment prior to all other charges, except charge, if
any, on the apartment for payment of municipal rates and taxes.
Payment of common expenses and assessment of all other sums payable
as charges:
As per Section 3 (e) of the West Bengal Apartment Ownership Act 1972,
“Common Expenses” means expenses of administration, maintenance,
repair or replacement of the common areas and facilities and all other
sums assessed against the apartment owners by the Association of
Apartment Owners.
Commentary: As this Act lays down the provision for formation of an
Association and entrusts it with the powers and functions of
administrating the property concerned, the Association is entitled to
assess the expenses and all the sums for the administration of the
property.
The function of an Association as specified in clause (2) of the bye-laws
4 as well include for maintenance, repair and replacement of common
areas and facilities of the property and payments thereof.
Section 9 of this Act charges the Apartment Owners with the duty of
paying the common expenses according to the percentage of undivided
interest in the common areas and facilities.
Section – 15 of the West Bengal Apartment Ownership Act 1972, defines
the detail of charge for payment of common expenses as
All sums assessed by the Association of Apartment Owners for the share
of the common expenses chargeable to any apartment shall constitute a
charge on such apartment prior to all other charges, except charge, if
any, on the apartment for payment of municipal rates and taxes.
Commentary: Scope of the Section: This section provides for the
creation of a charge on the apartment for all dues assessed by the
Association on account of share of the common expenses. This section is
also intended to provide the facility to the Association for realization of
all sums assessed on account of the share of common expenses as
expenses for administration, maintenance, repair and replacement of
common areas and facilities and all other sums assessed against any
apartment by the Association.
In addition to that and as we are facilitated to use the common areas
and facilities against specific charges, for personal need and necessity as
specified in the bye-laws, the arrear of dues as assessed by the
Association on that account shall constitute the charge against that
apartment. Non-payment of such dues will lead to be labelled as
defaulter. Personal use of common areas and facilities for car parking or
arranging social function etc, as permitted by governing body, is to be
considered as “use of common areas and facilities for personal purpose
against specific payment obeying the permission of Governing Body.
Charge, meaning of --- This Act has not defined “charge” and as the
provisions contained in this section are in no way inconsistent with the
provisions contained in the Transfer of Property Act, the provisions in
the latter Act will apply.
Section 100 of the Transfer of Property Act dealing with “charge”
provides as follows: - “When immovable property of one person is by act
of parties or by operation of law made security for the payment of
money to another, and the transaction does not amount to a mortgage,
the latter person is said to have a charge on the property; and all the
provisions herein before contained which apply to a simple mortgage
shall as far as may be apply to such change”.
So, as far the above noted Section, a charge does not amount to a
mortgage though all the provisions which apply to simple mortgage shall
insofar as may be applicable to a charge which we are discussing. The
word “charge” only gives the right to payment out of a particular
property without transferring the property. A charge can be created
either by act of parties or operation of law. Therefore, the word
“charge” is only a security for repayment of money. “Charge” has got the
legal power for enforceability against transferee also.
Effect of this provision --- Section – 15 of this Act constitute merely a
charge in express language upon such apartment and all assessed sums
payable on account of share in common expenses including any other
dues have been made prior charge to all other charges except Municipal
taxes.
This Section however contemplates creation of a charge by operation of
law and as such it is a statutory charge.
It is justified that an intending purchaser of any property in municipal
area, where the property is subject to the municipal tax, which has been
made a charge upon the property by statute, should have constructive
knowledge of the tax and of the possibility of some arrears being due to
the said property. If that intending buyer or transferee fails to make
their enquiry, such failure amounts to a wilful abstention or gross
negligence with the meaning of Section – 3 of the Transfer of Property
Act and notice must be imputed to them.
Similarly, it is also justified that an intending purchaser of any
apartment, situated under the administration of the Owners Association,
should have constructive knowledge of the possibility of some arrears
being due against such property. If that intending buyer or transferee
fails to make their prior enquiry with the Owners Association, such
failure amounts to a wilful negligence from his part which cannot
evade his liability on any dues.
Conclusion: None so blind as those that will not see.
*** Taken help from the book: Law of Ownership of Apartments/Flats in West
Bengal by Tapas Kumar Mukherjee
Compiled and Written by Subrata Banerjee, [email protected]
failure amounts to a wilful negligence from his part which cannot
evade his liability on any dues.
Conclusion: None so blind as those that will not see.
*** Taken help from the book: Law of Ownership of Apartments/Flats in West
Bengal by Tapas Kumar Mukherjee
Compiled and Written by Subrata Banerjee, [email protected]