UP Apartment Act, 2010 with 2016 Amendment, Real Estate (Regulation & Development) Act 2016, UPRERA Draft Guidelines of 14.09.2020 on Association of Allottees and relevant Case Laws.
What is Association of Allottees (AOA)?
It is an Association of owners/buyers which is formed to represent the interests and protects the rights of the property owners. It is also responsible for providing valuable services like maintenance of common areas, enforcing society regulations and working towards the residents’ welfare through special initiatives or events.
Rights & Responsibilities of Association of Allottees:
- Maintenance, repair and replacement of the common areas and facilities,
- Collection from apartment owners share of common expenses.
- Resignation and removal of persons employed for the maintenance,
- Elections, where an arrangement shall be made by the board to ensure that one third of members of the board retire annually.
- Repair and replacement of common areas and facilities.
- To provide for the manner in which the audit and account of the association shall be carried out.
- To inspect the accounts kept by the Secretary/Treasurer’ and examine the registers and account books and to take steps for the recovery of all sums due to the Association,
- To see that cash book is written up promptly and is signed daily by one of the members of the Board.
- To specify the times at which and the manner in which the annual general meetings and special general meetings of the Association shall be held and conducted.
When can the AOA be formed?
Handing over to the owners 60% of the total flats of the complex, or within period of one year from Completion Certificate obtained from local authority. No promoter shall delay the formation of Association beyond the above. In case, it is delayed, the apartment owners can get it registered after giving a notice giving reasonable period (30 days) to promoter and adopting model bye laws.
Sequence of Events
- Situation 1: When the Apartment Owners form an Association:
Serve a notice of 30 days to the Builder asking him to form the AOA or otherwise residents will conduct a General Body Meeting (minimum 50% should vote in favour) on first Sunday post 30 days from the date receipt of the said notice by the builder. Copy this notice to the Competent Authority as well as the Registrar of the Societies.
Post 30 days of the service of the notice on builder conduct a general body meeting. The meeting should be notified through wider publicity and all the apartment owners must be aware of the same. The Agenda of the meeting should be mentioned i.e. formation of AOA, adoption of Model Bye-Laws and election of Board of Management.
In the General Body Meeting pass resolutions:
a) That all the apartment owners agree to form AOA.
b) That all the apartment owners adopt the model bye-laws dated 16.11.2011
c) Choose a Board of Management of 10 members comprising of President, VP, Secretary and Treasurer and Executive members.
Voting shall be on percentage basis, and the percentage of the vote to which the owner is entitled is the percentage assigned to the dwelling unit/units in the Declaration, Form A (Clause 6).
Quorum- Except as otherwise provided in the bye-laws, the presence in person of 30 percent of owners shall constitute a quorum. Votes will be cast in person. Except as otherwise provided resolution of the Association shall require” approval by a majority of owners casting votes in person or proxy.
The elected Board of Management will do followings: Write and follow up with the Competent Authority (LDA, ADA, KDA, GDA, NOIDA, GNIDA, YEIDA etc.) to get NOC for the formation of the AOA on the basis of the resolutions of the GBM. Post the issuance of the NOC from Competent Authority, register the AOA at the office of the Registrar of Societies through online portal available at: http://uprfsc.gov.in/
- Situation 2: When AOA registered by Promoter.
Choose a Board of Management of 10 members comprising of President, VP, Secretary and Treasurer and Executive members. Register the AOA at the office of the Registrar of Societies through online portal available at: http://uprfsc.gov.in/. The details of the process as in ‘Situation 1’ given above.
1) Formation of AOA (Stepwise)
- A) Choose a Board of management of 10 members comprising of President, VP, Secretary, Joint Secretary and Treasurer. 5 members as Executive Members. (The members of Board are chosen by the Developer & the allottees, jointly)
- B) Two Photos – President or Secretary
- C) Collection of their identity proof, PAN, address proof and other relevant details of members.
a) Name and Address of the AOA
b) Builders Consent Letter/ Affidavit
c) Completion Certificate (N.O.C from Authority)
d) List of General Members
e) Conducting of General Body Meeting (as needed)
f) Draft of Bye Laws in strict compliance to the applicable law and rules.
g) Adoption of model Bye Laws dated 16.11.2011 or proposing Bye Laws based on this.
h) Application in the Office of Deputy Registrar Firms, Societies, & Chits, Meerut.
i) Publishing in two newspapers.
j) Registration of AOA in Office of Deputy Registrar Firms, Societies, & Chits.
k) Executive Body Meeting
2) Election Process after formation of AOA
Election and term of office: (i) The annual general meeting of the Association, to be held in the first quarter of each financial year, shall elect neither less than 5, nor more than 10 Members including the President, Vice President, Secretary, and Treasurer from Members of the Association.
Provided, that no member shall be eligible for election if he has been found guilty of misusing the post during his previous term. The term of office of the office-bearers of the Board shall be one year from the date of assuming office and they will be eligible for re-election. Provided, that a person cannot hold the same post continuously for more than 2 years.
(ii) An arrangement shall be made by the board to ensure that one third of members of the board retire annually. The office bearers shall hold office until their successors have been elected and hold their first meeting.
3) Maintenance Charges
The Promoter shall be responsible to Provide and maintain essential services in the Project till the taking over of the of the Project by the association of Allottees. Maintenance cost from the issuance of the completion certificate for one year from the date of completion certificate has been included in the Price of the Apartment/Plot.
If the Association of Allottees is not formed within one year of completion certificate the promoter will be entitled to collect from the allottees amount equal to the amount of maintenance disclosed in the Agreement+10% in lieu of price escalation for the purpose of the maintenance for next one year and so on. The Promoter will pay the balance amount available with him against the maintenance charge to Association of Allottees once it is formed.
There is no waiver or exemption to promoter in contributing towards maintenance of common facility areas, if the amount is not paid unto 12 months then, the association of allottees can approach the competent authority. (In both the cases)
4) Documents required for Registration of AOA:
- Declaration, Form A (with relevant attached Documents mentioned in the Declaration)
- Details of the land of the building to which the present declaration relates
- Details of Apartment
- Details of covered area of apartments and total covered area of common areas and facilities
- Details of the common area and facilities of the building to which the present declaration relates
- Details of the limited common area and facilities of the building to which the present declaration relates
- Details of the “independent areas” of the building to which the present declaration relates
- Affidavit(NOC) by Builder
- Completion Certificate (N.O.C from Authority)
- Name and Address of the AOA
- Proceedings of formation of Institution
- Office Bearers or members detail (photograph, scanned signature & ID proof)
- List(Name) of members of General Assembly
- Rights & Duties (As per Bye Laws)
- Organization’s Fund
- Source of Income
5) Handing over process by promoter to AOA
Certain documents which are required to be handed over by the Promoter:
- Property Certificates & Documents
- Approved Building Plan: The builder has to hand over a copy of the construction plan along with block-wise and floor-wise details, approved by the local authority.
- Completion Certificate: The local authority issues this as proof that the construction is done as per required norms.
- Occupancy Certificate: This certificate is proof that the building is suitable for occupation by the residents.
- No Objection Certificates: NOCs are provided from water, fire, pollution and electrical authorities.
2. Financial Documents
- Insurance documents of the building;
- Payment records of taxes paid for property and construction;
- Payment receipts of water and electricity services along with details of security deposits and no due certificates;
- Financial records of maintenance charges and GST paid while the premises were under the builder’s care;
- Handing over corpus/leftover investment amount;
- A statement or record of all collections made from the members (other than the purchase amount)
- Audited account statements related to all of the above
3. Operational Documents
- Annual Maintenance Contracts (AMCs) and vendor information along with bills and service records of the purchased equipment, such as generators, gym equipment, sewage and water treatment plants, etc.;
- Manual, drawings, technical details and specifications of sewage and water treatment plans;
- List of all amenities and assets in the building including movable and immovable ones;
- Detailed and approved compounding layouts of convenience stores, offices, etc. that constitute the building premises;
- Piped gas systems diagrams (if applicable) along with approval from relevant authorities, inspection records;
- CCTV Access Control System (if applicable) with user manuals, technical warranty, contracts and inspection report;
- Drawings of electrical wiring with earthing points, instructions on safety measures, generator set configurations and diesel storage facility;
- Water piping diagrams, lab tests of water quality, overhead tanks’ technical documentations, borewell yield report, and documented evidence of rain-water harvesting compliance;
- Fire/ emergency detectors and alarm systems with technical documents and instructions on resident alert protocol, panic button systems, inventory of hoses, hydrants and fire extinguishers;
- Automobile parking with layout and numbering;
- Layout and drawings of common areas including community hall, playground, and others;
- Lift license documents, clearance to operate them, safety manuals, warranty documents and details of renewal;
- Approval, specifications and vendor agreements for multi-utility pre-paid meter with validated software and tariff rates;
- Records of existing maintenance/service staff and their detailed work schedule.
- All legal documents signed between the builder and the landowner have to be handed over to the society;
- Deed of conveyance and sale of ownership for every member along with Share
- Certificate Copies should be duly passed on to the society’s office-bearers;
- Legally binding contracts signed with any vendors or maintenance companies should be provided to the society along with zero dues certificates/guarantee;
- Insurance documents for amenities/equipments and third party inspection contracts;
- Record of car parking allocation provided to members;
- Undertaking by the Builder regarding Indemnity & Limitation of Liabilities of the Society for all transactions prior to the handover date.