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Q. Which is the correct Act to register an Apartment Owners

Association?
Hi

I have recently bought a flat in a multi-residential complex in Bangalore consisting of 280 flats. About 80 flats are
now occupied. There is an ongoing confusion on whether we should register an association now and under what
Act. More facts of the case:

1. Sale status of Owner's share - Not known

2. About 80 flats occupied, project is still not complete. Yet to get OC and Khata transfer not yet done.
3. Some residents thought of registering an association under Karnataka Societies Registration Act, 1960. Some of
the residents are not convinced if registering under this Act will give the association any power to represent the
residents / negotiate with the builder as the laws may not be binding on non-members.
4. Our sale deed explicitly mentions that we must form an Association under Karnataka Apartment Ownership Act,
1972 - by submitting a deed of declaration - and that all owners automatically become members of such
association.
5. The builder runs maintenance for 3 years (not yet started).

The point of question is when is the right time to form the association & under which Act? Is there any minimum
number of owners required to form the association in either Acts (like at-least 60% owners)? Especially the KAOA?

Please advise
Asked 2 years ago in Property Law

Religion: Other

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17 Answers

A. since you are apartment association you should  be regsitered under provisions of KAOA
2) in KAOA Declaration and Deed of Apartment is to be  made in respect of every apartment contained in the
building forming part of the property together with a memorandum. This can be done in a single Deed listing out
all the apartments
3) Section 3 of the societies act defines the various types of societies that can be registered under the act and
none of them meet the definition of an apartment association.
 4) An apartment as defined in Karnataka is a property of a residential nature where the owner owns the apartment
and holds a percentage share in the land and common areas and amenities.
5) In a cooperative society setup, the building, common area and land is vested with the cooperative society
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6) The member has all rights to occupy his or her flat, but does not own an undivided share as is commonly
understood since all common property is vested with the society
7) Under KOFA 1972, section 3, subsection 2(h), and KOFA Rules 1975, section 5(d) the builder/promoter is
obligated to state the “precise nature of the organization to be constituted of the persons who have taken or are
to take the flats or apartments”.
8)The Deed of Declaration is to be provided in a format known as Form A, which is described in KAOA Rules 1974.
The DoD will detail the extent of property, all the common areas, limited common areas and facilities, description
of buildings and all apartments. It will also specify the percentage undivided ownership share for each apartment.
Along with Form A, a copy of the by-laws of the association and a set of floor plans of the buildings are to be
appended. It has to be certified by an architect that the plans are accurate as per what is approved by the local
body and what has been built. All registration offices are obligated to keep a book called “Register of Declarations
and Deeds of Apartments under KAOA 1972” and an Index thereto
9)The KAOA rules require that true copies of all amendments to the DoD, by-laws etc. should also be filed in the
office of the competent authority. A copy of a Deed of Apartment is to be filed within 30 days of registration.
 
10) however if it is registered under KSRA it cannot be registered under KAOA as registrar will refuse to register it
under KAOA as registration has been done under KSRA
11) in case any flat owner is aggrived he has to obtain court orders for cancellation of registration under KSRA
and registration under KAOA
 

Ajay Sethi (/lawyer/ajay-sethi)

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A. Dear Client,
Society can be register by 7 members and under society registration act. 
Owner share in land will be 1/280th. If 2 flats owner than 2/280th. ON proportionate basis.
Karnataka Societies Registration Act, the building, common area and land is vested with the Cooperative Society
and Karnataka Apartment Ownership Act, each apartment becomes a heritable and transferable unit under
separate Khata along with an undivided share of common areas.
Binding/restrictive Clause in sale deed has no relevance once full payment made.
KSRA – 7 members who are above 18 years can get the association registered.
KAOA – 4 apartments to form a building. All the owners have to come together to get the association registered.\
Authority
 KSRA – Registrar, where no such officer is appointed, the Inspector General of Registration in Karnataka.
KAOA – Sub Registrar.

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Yogendra Singh (/lawyer/yogendra-singh-rajawat)
Rajawat
(/lawyer/yogendr
a-singh-rajawat)
Advocate, Jaipur
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A. In absence of any provisions in local law with regards to time frame by which association should be formed,  the
relevant provision of central act RERA shall follow which states that in absence of any local laws the association
of allottees shall be formed within a period of three months of the majority of allottees having booked their plot or
apartment or buildings, as the case may be, in the project.
Further unless and until the association is registered under any statue it does not acquire status of legal entity
and shall have no rights or locus standi.

Kallol Majumdar (/lawyer/kallol-majumdar)

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Advocate, Kolkata
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A. The apartment association can be registered by all the members under the KAOA and by deed of declaration and
all members can be part of the said association. Further the undivided share can be transferred through the deed
to association.

Shubham (/lawyer/shubham-jhajharia)
Jhajharia
(/lawyer/shubha
m-jhajharia)
Advocate, Ahmedabad
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A. 1. KAOA, can be registered with minimum 10% members or 60% members, whichever is lower.
BUT they should be registered occupants of a legal building. This can be done immediately, with or without the
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of the Builder.
2. Association is more easier to maintain & manage, rather than a Society. Both have same legal status as far as
statutory rights & obligations are concerned.
Keep Smiling .... Hemant Agarwal

Hemant Agarwal (/lawyer/hemant-agarwal)

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Advocate, Mumbai
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A. You can do it in karnataka apartments ownership Act 1972 of Karnataka Co-operative societies Act 1959.

Prashant Nayak (/lawyer/prashant-nayak)

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Advocate, Mumbai
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Q. Thank you all for the answers. One final question remains pertinent. Right now about 80 flats are occupied out of a
possible 280. Can this group of 80 persons now form an association under KAOA and will it be binding on the
future buyers / occupants? Or is there a minimum requirement of X% of flats to be sold OR all 280 owners need to
come together? This is the main point of contention among the current occupants.
Asked 2 years ago

A. NO, future buyers will to give there fresh consent to be part of association. All 280.

Yogendra Singh (/lawyer/yogendra-singh-rajawat)

Rajawat
(/lawyer/yogendr
a-singh-rajawat)
Advocate, Jaipur
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A. your sale deed mentions that you  must form an Association under Karnataka Apartment Ownership Act, 1972 -
by submitting a deed of declaration - and that all owners automatically become members of such association.
 
builder will execute deed of declaration in respect of all apartments 

Ajay Sethi (/lawyer/ajay-sethi)

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sethi)
Advocate, Mumbai
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A. To form an apartment association the following steps have to be taken:

1) You have to elect the members of the board of association
2) You have to conduct a general body meeting to ratify the bye-laws of the association
3) You have to approach the Registrar of Co-operative Societies with the bye-laws, Deed of Declaration (Form-A)
and the consent of the other owners to register the association.
Please note that the Apartment Association has to be registered under the Karnataka Apartment Owners' Act,
1972 and not the Karnataka Societies Registration Act, 1960
 
 

Mohammed (/lawyer/mohammed-mujeeb)
Mujeeb
(/lawyer/moham
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Advocate, Hyderabad
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A. Association can only be formed on attaining majority of allottees having booked their plot, or flat in the project.
This simple majority means more than 50%  of total no. Of flat/plot available for sale. 
 Kallol Majumdar (/lawyer/kallol-majumdar)
(/lawyer/kallol-
majumdar)
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Advocate, Kolkata
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A. yes you can proceed with the same if they are owners and occupying the same for residential purposes only.

Prashant Nayak (/lawyer/prashant-nayak)

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-nayak)
Advocate, Mumbai
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A. 1. the persons occupying the flats can certainly form a society under the societies act applicable to your state and
register such society with the registrar of co-operative housing societies
2. in Maharashtra the minimum number of persons required to form a society is 10. I am not aware about your
state but i think 80 occupants can certainly form a society
3. even if the OC is not received the flat purchasers can form a society 
4. coming to apartment association, that cannot be formed by the flat buyers. 
5. for forming an apartment association either the owners of the land or the builder has to submit the land and
building to the apartment owners act by executing and registering a deed of declaration
6. thereafter whenever any flat is sold, the builder can first execute agreement for sale with the buyer and later the
apartment association, formed due to the submission of the deed of declaration, can then execute deed of
apartment with the flat buyer, through its manager or secretary

Yusuf (/lawyer/yusuf-rampurawala)
Rampurawala
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Advocate, Mumbai
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A. 1. KAOA, can be registered with minimum 10% members or 60% members, whichever is lower.
BUT they should be registered occupants of a legal building. This can be done immediately, with or without the
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of the Builder.

Hemant Agarwal (/lawyer/hemant-agarwal)

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Advocate, Mumbai
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A. Yes the future buyer shall be member of same and 80 members can form an association.

Shubham (/lawyer/shubham-jhajharia)
Jhajharia
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m-jhajharia)
Advocate, Ahmedabad
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A. 1. Yes, you can form an association with these many memes also and later on when others would be coming
then they would also become the member.
2. As per law, all are bound to become the member of the society, otherwise would be difficult to maintain the
society.
3. This is the mere intention of the society act to have all the members of the society being some of them
holding a formal position to loom after the work of society.
4. And the society must run in accordance of the law on the state prevailing from time to time, so that no one
individual may have all right/ power in the association.

Sanjay Baniwal (/lawyer/sanjay-baniwal)

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Advocate, South Delhi
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A. The Karnataka Apartment Ownership Act of 1972 (KAOA), which came into force in 1975, encourages
homeowners to form associations on democratic grounds. These associations ensure a smooth functioning
within the housing societies and apartment complexes. Generally, such associations are registered by the
developers. However, in case that doesn't happen, the apartment residents can take a lead and get it registered
with the help of a lawyer.
In Karnataka, there is a general confusion about whether apartment associations must be registered under
Karnataka Apartment Ownership Act 1972 or Karnataka Societies Registration Act 1960 (KSRA). By law, the KAOA
is the provision. But, the confusion arises because there is no authority specified for it to register the association
through the Registrar of Cooperative Societies is regarded as the competent authority in this regard. However,
note that you have the provision to tackle issues if you go by the rules of the KAOA. When it comes to the KSRA,
the powers are well laid out and therefore, it paves way for such confusion. At this juncture, it is important to
mention that while the KAOA deals with apartment complexes, the KSRA's jurisdiction involves- literary, scientific,
charitable and other organisations.
Thus it is recommended that the same may be registered under KAOA.

T Kalaiselvan (/lawyer/t-kalaiselvan)
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A. It can be registered with the existing members for now and the new members can be added subsequently
The homeowner under the KAOA is the absolute owner with a clear title of the apartment and its proportional
undivided share (UDS).
It is governed by the Transfer of Property Act (https://www.kaanoon.com/indian-law/transfer-of-property-
act/),1882.
It requires a Deed of Declaration that describes the property- bye laws, the number of units, lifts, generators,
gymnasiums, pools, firefighting equipment and such common facilities.
The Declaration is made perfectly traceable by giving it a registration number as well.

T Kalaiselvan (/lawyer/t-kalaiselvan)
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