Introduction

The Uttar Pradesh Apartment (Promotion, Construction, Ownership & Maintenance) Act, 2010 popularly known as the UP Apartment Act, 2010, came into force on 21.07.2010 with the objective of promoting Group Housing in the state. One of the other objectives of the Act is to provide for the ownership of an apartment along with an undivided interest in the common areas and facilities related to the apartment. In pursuance of the objectives of the act, the government of Uttar Pradesh while exercising the powers provided under the Act, introduced Model Bye-laws. Among many other things, the Model Bye-laws also mention some restrictions with regard to the use and maintenance of the apartments. The Model Bye-laws also put restrictions on the use of the common areas and facilities. Such restrictions are totally relevant in order to prevent unreasonable interference in the use of each apartment and of the common areas and facilities by several apartment owners. It can be better understood by taking reference from the following illustration:

Illustration: A and B are both homeowners in a group housing project. On a certain issue, both A and B had a fight with each other. B in order to harass A keeps sitting outside the main entrance of A’s apartment. When B is asked to move away and leave the place, B does not move, stating that he is sitting outside A’s house which is a part of the common area and he has a right to enjoy the same. In such circumstances, it becomes imperative to have such provisions in the form of restrictions to stop people from abusing the law.

Right of Homeowners to Alternate Balconies

From a perusal of the Model Bye-Laws framed under the UP Apartment Act, 2010, and the reading of Bye-law 38 in particular, A homebuyer is entitled to make structural modifications or alterations in his/her unit. However, before making such changes the homebuyer needs to notify the Association of Apartment Owners (“AOA”) more precisely the Board of AOA. The homebuyer also needs to take the permission of the sanctioning authority too. The Association is obligated to answer to any such notice within thirty (30) days and in case it fails to do so it shall be deemed that there is no objection to the proposed modification.

The powers given hereunder are limited to the changes made in the dwelling unit and it does not include the common area. Now the question arises whether the Balcony is a part of the common area or the apartment. The term “common area” is defined under the Act and includes the foundations, beams, columns, girders, supports, main walls, roofs/terraces and halls of common use, corridors, lobbies, stairways, fire-escapes and entrances and exits of the building, basements (areas of common use only), cellars, yards, parks, gardens, community centres and premises for lodging of persons employed for the management of the property. Thus from the perusal of the definition, it is apparent that the balconies are not a part of the common areas, and the Homeowners are allowed to make changes to them. But before moving further it is imperative to check various other restrictions imposed by the Act.

Restrictions on the Homeowners against making Changes in the dwelling units:

However, there are some limitations provided under the Act against the right provided to the homeowners which are mentioned as follows:

1. The homeowners are restricted to undertake any work which can change the external facade of the building which includes but not limited to covering of balconies, change of colour, etc. It is pertinent to notice here that open balconies are a part of fire safety norms and the buildings that don’t have balconies are required to have fire safety floors and big balconies on certain floors.
2. The homeowners cannot undertake any work which affects the structure of the building. This means that no owner shall do anything which affects the structure of the building for e.g. demolishing the internal walls to expand the area etc.
3. The homebuyers cannot undertake any work which leads to encroachment of the common area or result in damage to common areas or adjacent upper or lower floors.

Striking the Balance:

On one side the Law is giving the right to the homeowners but at the same time, it is also proving some constraints that a homeowner must look for before making any changes to his/her apartment. In such a case it becomes necessary that the Apartment owner must try to strike a balance. No addition or alteration of an existing flat in an apartment must be done without the consent of the Apartment Owners Association. The alterations might also spoil the aesthetics of the building and thus no modification should be started by the homeowners without giving the notice to AOA and wherever necessary the homeowners must also take permission from the sanctioning authority too. In case changes have already been made by the homeowner without notifying the AOA and they are in contravention as is provided in the Bye-Laws, the homebuyer will be liable to bear the cost of correcting the same. In case the Homeowner refuses to pay the costs incurred for rectifying the changes made by him, the AOA is entitled to effect recovery of the cost of rectification from him.

Sub-section (2) of section 6 of the UP Apartment Act, 2010 also states that no owner can do any work which would be prejudicial to the soundness and safety of the property. Moreover, recently in Gurgaon a residential apartment floor of a living room on the 6^th floor collapsed leading to a cascading effect in which all the living rooms up to the 2^nd floor of the building caved in. As per the reports, some floor modification and repair work was going on the 6^th floor. Thus due care must be taken by the homeowners to protect the interest of other apartment owners, common areas, and facilities, and therefore the use of heavy machinery to complete any work, like removing the tiles etc. should not be taken in the first place. The law also provides that the AOA can enter into a property by giving notice to the homeowner to ensure that the work is carried out in a safe manner and there is no threat to the safety of other homebuyers.

Conclusion:

Analyzing all the facts, Law, and Bye-Laws mentioned above the writer of this article holds the following opinion. Apartment owners have a right to make changes to their balconies but any major structural changes and modifications like covering the balcony with permanent materials like bricks is not allowed and must be avoided. An apartment owner should not make any alterations to the balcony such that the external facade of the building is affected. Tiles on the floor of balconies can be changed and homeowners can also install tiles on walls and make gardens etc. provided that a waterproofing solution is done. But the homeowner before starting any work must give a notice to the Board of Management of AOA. The scope and nature of work should be such that no heavy machinery is used for the same (like for extracting previous tiles) which can cause vibration having the potential to damage the structure of the strength and structure of the balcony and building.

(This article is for informational purposes only and is not meant to be treated as legal advice. Before making any such changes it is advisable to consult your attorney.)