A recent landmark judgement by Justice Suraj Govindraj has brought much-needed clarity to the complex landscape of Karnataka apartment law. If you’re living in an apartment society or planning to buy a flat in Karnataka, this ruling affects you directly. Here’s what you need to know about this significant development in KAOA vs cooperative societies regulation.
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The Case That Changed Everything
The judgment emerged from a typical yet complex scenario: a 5.5-acre development with five towers (A-E), where three towers (B, C, D) were completed whilst two (A, E) remained incomplete. This led to multiple associations being formed under different acts, creating conflicts that required High Court intervention.
Allottee vs Owner: A Critical Distinction
One of the most important clarifications in this judgment is the difference between an “allottee” and an “owner”:
Allottee: A person to whom a flat is allocated but not yet legally sold. This typically occurs when:
- The construction project is incomplete
- The Occupancy Certificate (OC) hasn’t been obtained
- Only an agreement to sell exists, not a sale deed
Owner: Someone who possesses a valid sale deed for their flat
This distinction isn’t just semantic—it determines your legal rights and the type of association you can form.
Which Associations Are Legal for Maintenance?
Understanding the Karnataka apartment law is crucial for determining which associations can legally collect maintenance. The judgment provides crystal-clear guidance on this:
Legal for Maintenance
- Karnataka Cooperative Societies Act (KCSA): Societies registered under this act can carry out maintenance activities, including maintaining common areas and amenities
- Karnataka Apartment Ownership Act (KAOA) 1972: Associations formed under this act can also handle maintenance
Illegal for Maintenance
Karnataka Society Registration Act (KSRA) 1960: The judgment reconfirmed that societies registered under this act “cannot carry out maintenance activity” and are considered “illegal bodies” for maintenance purposes.
Who Can Form What Type of Association?
Understanding the Karnataka apartment law is crucial for determining association formation rights. For detailed guidance on RWA formation under different Karnataka acts, the rules are now clear:
Allottees can:
- Form societies under the Karnataka Cooperative Societies Act (KCSA)
- Approach RERA for disputes
- Cannot form associations under the Karnataka Apartment Ownership Act (KAOA)
Owners can:
- Form associations under the Karnataka Apartment Ownership Act (KAOA)
- Form societies under the Karnataka Cooperative Societies Act (KCSA)
- Note: KAOA requires 100% consensus from all owners
How Different Acts Interact
The judgment clarifies the relationship between various laws affecting the Karnataka apartment law:
RERA vs KAOA: No Conflict
- RERA: Applies during construction and for developer disputes (pre-ownership)
- KAOA: Applies post-construction once apartments are sold (maintenance phase)
- These acts operate at different stages, so there’s no conflict
For comprehensive information about your rights under RERA during home purchase and possession, understanding this timeline distinction is crucial.
RERA vs KOFA: RERA Prevails
- Where the Karnataka Ownership of Flats Act (KOFA) provisions conflict with RERA, RERA takes precedence due to its “non-obstante clause”
- This means RERA’s provisions override conflicting KOFA provisions
The Conveyance Deed Conundrum
Perhaps the most significant development in Karnataka apartment law concerns the transfer of common areas and amenities. This aspect directly impacts the RWA handover process in Karnataka:
The Problem
RERA mandates that developers execute a conveyance deed transferring common areas and amenities to the society or association. However, developers typically transfer only the Undivided Share (UDS) of land and super built-up area to individual flat owners, claiming they have “nothing left to transfer.”
The Court’s Direction
In this case, the court directed the developer to execute a conveyance deed transferring common areas and amenities to the cooperative society under KAOA. This is groundbreaking because:
- It’s one of the first cases where such a direction has been given
- The developer has 120 days to implement this
- It sets a precedent for how RERA’s provisions should be implemented
The Catch-22
This creates a complex situation where KAOA and KCSA operate differently:
- Under KAOA: The association acts as custodian of common areas, with individual flat owners being the actual owners
- Under KCSA: The society can receive direct ownership of common areas through a conveyance deed
- The Problem: Three completed towers may have already had their UDS transferred to individual owners, while two incomplete towers now have a cooperative society that should receive common areas through a conveyance deed
Approaching the Courts: Understanding Jurisdiction
The judgment clarifies when you can approach different courts:
High Court (Writ Jurisdiction): Only when the opposing party is a state entity (government, statutory authority)
Civil Court: For disputes between private parties, including:
- When owners can’t achieve a 100% consensus for forming a KAOA association
- Other private disputes requiring court direction
What This Means for You
If You’re an Allottee:
- You can form a cooperative society under KCSA
- You can approach RERA for disputes
- Your society can legally collect maintenance
- You may benefit from common area conveyance under RERA
If You’re an Owner:
- You have the choice between KAOA and KCSA for forming associations
- Both options allow legal maintenance collection
- KAOA requires 100% consensus, which can be challenging
- Under KAOA, you collectively own common areas, with the association as custodian
If You’re in an Existing KSRA Society:
- Your society cannot legally collect maintenance
- You need to transition to either KCSA or KAOA
- Seek legal advice for the transition process
The Road Ahead
Whilst this judgement provides significant clarity to the Karnataka apartment law, some questions remain:
- Implementation: How will developers practically implement conveyance deeds when UDS has already been transferred?
- Legislative Clarification: The court itself acknowledged the need for legislative clarification on conveyance deed issues under KAOA
- New Legislation: There’s speculation about a new law replacing KAOA, but no draft legislation has been published yet
Key Takeaways
- Know Your Status: Understand whether you’re an allottee or owner, as this determines your rights and options
- Choose the Right Association: Both KCSA and KAOA are valid for maintenance, but KSRA is not
- RERA Compliance: Developers must execute conveyance deeds for common areas as mandated by RERA
- Legal Entities Exist: Despite some remaining ambiguities, you have legal options for forming maintenance associations
- Seek Professional Advice: Given the complexity and ongoing developments, consult legal experts for your specific situation
This judgment represents a significant step forward in clarifying apartment laws in Karnataka. While some implementation challenges remain, apartment residents now have clearer guidance on their rights and options for forming legal maintenance associations.
For specific legal advice regarding your apartment society, consult with a qualified legal professional familiar with Karnataka apartment laws.
⚠️ This blog and video is for informational purposed only and does not constitute legal advice. Always consult a qualified legal professional for advice specific to your situation.