A frequent dispute in newly formed housing societies arises when members are asked to bear maintenance charges of unsold flats, despite having already paid advance maintenance to the developer. Matters worsen when the managing committee labels members as defaulters, restricts access, or threatens to stop essential services such as garbage collection. Such actions are not only illegal but also harassment under cooperative laws.
Who Is Responsible for Maintenance of Unsold Flats?
The existing members are NOT liable to pay maintenance for unsold or unoccupied flats.
As per Section 11(4)(e) of the Real Estate (Regulation and Development) Act, 2016, the promoter/developer is legally bound to pay all outgoings, including:
• maintenance charges
• municipal taxes
• water and electricity dues
This obligation continues until physical possession of the flat is handed over to an allottee. Therefore, maintenance of 90 unsold flats must be paid by the developer, not distributed among members.
Advance Maintenance Paid to the Developer
Since you have already paid ₹42,480 as advance maintenance to the developer at the time of possession:
• the developer must transfer this amount to the society, and
• the society cannot demand the same amount again from you.
If the developer fails to transfer collected maintenance to the society, the liability remains with the developer, even after formation of the society.
Illegal Distribution of Unsold Flat Maintenance
Distributing the maintenance burden of unsold flats among existing members is:
• financially unfair,
• contrary to RERA, and
• against cooperative principles.
Societies are advised to include a specific clause in the bye-laws mandating recovery of maintenance from the developer for unsold units to protect members’ interests.
When Is a Member Treated as a Defaulter?
A member is deemed a defaulter only if dues remain unpaid for more than three months from:
• the due date, or
• the date of service of bill or notice,
whichever is later.
This is clearly laid down under Bye-laws 69 to 71, which also regulate:
• review of default cases, and
• levy of interest on unpaid charges.
If your demand itself is illegal, branding you as a defaulter is unsustainable.
Can the Society Restrict Access or Essential Services?
Absolutely not. Even if a member is a genuine defaulter, the managing committee cannot deny essential services.
Under Section 154B-29 of the MCS Act, the society may initiate recovery proceedings, but it cannot:
• disable entry systems or digital access
• stop garbage collection
• restrict use of lifts
• cut water or electricity
• block access to common areas
Garbage collection, security access, lifts and sanitation services are essential services. Disabling face recognition access amounts to harassment and coercion.
What Legal Remedies Are Available to You?
You may take the following steps:
• Represent your case before the General Body, placing facts and legal provisions on record
• File a complaint with the District Deputy Registrar (DDR) against illegal demands and harassment
• Initiate police complaint if threats or coercion continue
• Seek direction to recover dues only from the developer
• Challenge arbitrary actions of the managing committee under cooperative law
Key Takeaway
The developer must pay maintenance for unsold flats, not the members. The society cannot recover illegal dues, cannot label you a defaulter wrongly, and cannot deny essential services under any circumstances. Such actions expose the managing committee to legal consequences.
