Transfer of flats in housing societies
By Advocate H.G. Vijaykumar
Absolute owner of the Property.
Qns1. I have been staying in a flat, which is jointly in the name of my father and brother. Both my father and Brother have planned to give the flat to me by way of nomination. When will the flat be transferred to my name by way of nomination, whether stamp duty will be applicable? When I will become the absolute owner of the flat as there is no other legal heirs?
Ans. I would like to say and submit that under section 30 of the Maharashtra co-op societies Act, 1960, it is mandated that on the death of a member of a society, the society shall transfer the share or interest of the deceased member to a person or persons nominated in accordance with the rules, or if no person has been nominated, to such person as may appear to the committee as the heir or legal representative of the deceased member, provided that such a nominee, heir or legal representative, as the case may be, is duly admitted as member of the Society. Rule 25 of the Maharashtra Co-op rules, 1961, provides that for the purpose of transfer of his share or interest under the aforesaid provisions of the MCS act, a member of the society may nominate any person or persons either by a document signed by him or by making a statement in any book kept for the purpose by the society. Where the nomination is made by a document such a document is required to be deposited with the society during the members lifetime, and where the nomination is made by a statement then such a statement shall be signed by the member and attested by one witness. Every such nomination is required to be entered in the register of members kept by every CHS under Rule 32 of the MCS rules 1961.
I would like to further state that in case of transmission of shares( transfer of shares of the deceased member to his Legal heirs/nominees) there is no question of stamp duty liability. The occupation of the flat by nominee is effectively an occupation of the member, through their interest would only vest on you (nominee) on the death of both the members. You will be entitled to the proportionate half share and interest of the deceased member (if your father dies or brother dies whoever dies earlier) on the basis of the said nomination. It is only after the death of both of your father and brother, that you shall be entitled to become the absolute owner of the said flat.
Transfer Fees on collector’s Land.
Q2) We are a Registered CHS but the Building is Built on collector’s Land. Whether NOC of collector is mandatory for transfer and what are the transfer fees charges on collectors Land?
ANS) It is absolutely essential to obtain a NOC from collector as the Building was built on collector’s Land. Transfer of membership along with rights to the Premises is considered by collector as transfer and transfer fees is levied thereon. The transfer fees payable is sometimes already mentioned in Lease deed. In other cases the collector issues guidelines for payment of Transfer fees. At present the collector is collecting transfer fees they are as follows: A) Premises held for more than 5 years Rs 500 per sq.ft. b) Premises held for more than 10 years Rs 300 per sq.ft. and C) Premises held for more than 15 years Rs 200 per sq.ft. This percolates that such premises must be held for a minimum period of 5 years. After 5 years only you can transfer the premises. Transfer fees payable for transfer of commercial premises is at rate of Rs 1500 per sq.ft. subject to depreciation if only applicable. Such aforesaid rates are only for premises in Mumbai. Exemption from payment of transfer fees is available in case of certain family members.
Precautions to be taken while purchasing a terrace flat.
Qns3) we are planning to buy a terrace flat from a builder ? what are the precautions to be taken while buying a terrace flat? Please clarify us.
Ans ) Please peruse the approved original building plan. check that there is a unambiguous (clear – cut) accessibility of the terrace from your flat only. The terrace should not have access from the common staircase of the Building. This is one of the most important step to be taken. So make sure that before purchasing a terrace flat a copy of the Original building plan must be demanded from the builder. You should ascertain that in the approved plan, terrace should be a part of your flat with FSI. I will justify you the reason why Building Approved plan should be checked as there are in many cases, “few builders”, what they do is that once the plans are approved from the BMC and the Occupation certificate is procured, they block the access from the common staircase and provides exclusive access to the terrace for the adjacent flat to term it as a terrace flat which is nothing but cheating. Generally building plan shows terrace flat as spaces having access from the common staircase so that builder will enable to get municipal approvals for terrace development free of FSI.
Please also ensure a clear-cut agreement with the builder spelling out in the agreement clause that terrace being sold as an integral part of FSI. The Agreement should also specify the carpet area clearly along with the Terrace rights. I mean to say that carpet area of flat should be inclusive of terrace. Also ensure that an enclosed drawing of the terrace space and get the same registered. Stamp duty should be paid only when in the agreement the carpet area of flat will be inclusive of the terrace FSI. If terrace flat is free of FSI then legally speaking it cannot be included in your FSI of flat and if you had a transaction with the builder for the same then you will be in deep trouble inspite of an agreement for the Terrace flat duly stamped and registered.
Refusal to make Associate member by the CHS
Qns4) I am currently staying in a CHS with my parents in a flat standing in my fathers name. He has made all the formalities to make me an Associate Member before the society as per byelaws and also had taken my consent. Now the CHS is refusing to make me associate member as the Committee is referring to my father’s will, whereby my father has nominated my mother as a nominee to the flat so they rejected my fathers application in the meeting. The CHS is demanding affidavit stating that my father has appointed my mother as nominee and he wishes to appoint me as an associate member. Is the stand of the CHS is justified?
Ans. In my mind that there is no need of affidavit in this Case. The Society is not justified in rejecting your application for Associate membership, when you have completed with the formalities as per Byelaws. There are 2 things Common between nominee and will. Both nominee and will come into operation or becomes effective only on the death of the original member. And secondly both these documents can be changed any number of times by the original member thereof. The difference between will and nomination is that nomination does not bestow any title or ownership rights in the property. A nominee is merely a trustee and accountable to legal heirs. He works as a catalyst to facilitate the procedure of transmission to the legal heirs. In contrast a will bestows an inheritable right, title and interest in the property. The beneficiary of Will is entitled to the ownership of the property as stipulated in the will. A person making a will can even oust the rights of his legal heirs.
In your case, your father is very much alive. At present your father is very much entitled to deal with his property in whatsoever form he wishes. So if he wishes to make you as an associate member, he has every right to do so. I further submit that in your context the CHS is duty bound to accept you as an associate member. You can explain this position to the CHS by writing a letter with an acknowledgement for the same. Inspite of the requisition given by you if the CHS is not ready to accept you. Then it becomes a fit case to file before the Dy.Registrar of your respective ward. After your father’s death, CHS can deal with the beneficiary mentioned in the will. Ultimately it is the beneficiary mentioned in the ‘will’ who will supersede the nominee by obtaining a probate, if the Society insists for a probate. The purpose of your father to make your mother nominee in the ‘will’ is similar of appointing an administrator/executor/trustee/caretaker of the “will” who will work as a catalyst to facilitate transmission of shares in favour of the beneficiary mentioned in the will.