The Uttar Pradesh Apartment (Promotion of Construction, Ownership & Maintenance) Act 2010, popularly known as the UP Apartment Act, 2010 came into force on 21.07.2010. The Act applies to all buildings having four or more apartments whether the building is constructed on freehold land or leasehold land. The Act does not apply to shopping malls or multiplexes. It is also pertinent to note an independent house constructed with independent entry and exit shall not constitute a building thus the Act does not apply to the same. The Act provides that there shall be an Association of Apartment Owners i.e. AOA for the administration of the affairs in relation to apartments to which the Act is applicable. The AOA shall also be responsible for the management of common areas and facilities.

Responsibility of Formation of Association of Apartment Owners (AOA)

As per the provisions laid in the UP Apartment Act, 2010, it is the joint responsibility of the Promoter and the Apartment Owners to form the association. Moreover, the Act mandates that the AOA has to be registered and it is the responsibility of the Promoter to get the association registered when 33% of apartments (60% of apartments as per the Amendment of 2016, though the writer of this article, is of the firm opinion that the amendment of 2016 has not come into force yet) have been handed over to the owners by way of sale, transfer or possession provided. However, in practice, the Promoters are most reluctant to form an association of apartment owners as the same will take away their right to manage the common areas and facilities which will ultimately lead to a loss of money collected for that.

What are the Steps to form AOA?

The following are the steps for the formation of an AOA if the builder is not forming an association of apartment owners in Uttar Pradesh, especially in Noida, Greater Noida, Lucknow, Agra, Ghaziabad, Meerut, Allahabad, etc.

Step 1: Serving Notice on the Builder:

The buyers must serve a notice of 30 days to the Promoter asking him to form the AOA. In case, the Promoter does not comply with the same and does not try to form AOA the residents can move further to make AOA by themselves. A copy of the notice must also be served to the Competent Authority as well as the Registrar of the Societies. If after 30 days of the receipt of the notice the builder does not reply, the residents can call a General Body Meeting (GBM). The finer nuances of the notice can be discussed with the advocate depending on the circumstances.

Step 2: Calling General Body Meeting (GBM)

As discussed above after 30 days of the service of the notice on the Promoter, the residents must conduct a General Body Meeting (GBM). General body means all the residents of the apartment building. This meeting should be notified through wider publicity and all the apartment owners must be aware of the same. The agenda of the meeting should be mentioned clearly i.e. formation of AOA, adoption of Model Bye-Laws, and election of the Board of Management.

Step 3: Passing the Resolutions

In the GBM all the apartment owners must pass the following resolutions:

1. That all the apartment owners agree to form AOA.
2. That all the apartment owners adopt the model Bye-laws dated 16.11.2011
3. Chose a Board of Management of 9 members comprising of President, VP, Secretary & Treasurer, and Executive members.

Alternate Process to form AOA

The apartment owners after taking the Step-1 as suggested above i.e. after service of notice to the Promoter can directly make a complaint to the Competent Authority (LDA, ADA, KDA, GDA, NOIDA, GNIDA, YEIDA, etc.) about the non-adherence of the law by the Promoter. In this complaint, the apartment owners can request the Competent Authority for passing a direction to the Promoter to form and register the Association. Such a request to the Competent Authority should be made to the members of the Authority in a personal meeting and the same should also be given in writing.

If in case the Competent Authority is not issuing directions and is delay dallying the process, then the apartment owners can directly approach the Hon’ble High Court and file a writ petition. The Hon’ble High Court will then direct the competent authority to take steps for the formation of the apartment owners association. Once there will be an order from the High Court then the process of registration will be faster and smoother.

Registration of AOA

The Uttar Pradesh Act, 2010 makes it compulsory to register an Apartment Owners Association. Moreover, the registration of an AOA is important for the uninterrupted maintenance of any housing society. It also provides a platform for apartment owners to raise their grievances regarding any issue in society with the Registrar of societies. Once the AOA is formed it must be registered with the office of the registrar of societies. The transfer of responsibility for the management of affairs of apartments regarding their common areas and facilities from the Promoter to the Association can be done only if the AOA is registered. Moreover, the Interest-Free Maintenance Security (“IFMS”) money collected by the Promoter shall be transferred to the Association at the time of handover.

Conclusion

The Association of Apartment Owners has been recognized as the official body for administrating the affairs in a group housing project and for the management of common areas and facilities therein. The Uttar Pradesh government has officially recognized the right of the apartment owners to maintain their apartments and the common areas and facilities they are using. It has made it clear that the Promoter is not supposed to maintain the same for the residents in the project. It has made the process more democratic. In pursuance of the same, the AOA has also been entrusted with widespread powers to maintain the condominium. But to have access to these powers and before taking handover of the common areas and facilities from the Promoter it is imperative that the AOA must also be registered.