The questions are answered by industry experts & the Mygate Team.
Q1. Is probate necessary for transferring the property situated in mumbai to the nominee ?
A flat can be transferred to a nominee after the original member’s death, but full ownership requires an NOC from siblings or other legal heirs. If the member has named a legal heir in their will, probate is needed to complete the transfer.
Q2. Can RWAs disconnect the water or electricity supply of maintenance defaulters?
In Mangalore, an elderly couple has lived without electricity for four years after their RWA cut off power due to unpaid dues. Similarly, in Bengaluru, tensions escalated into a physical altercation when a resident’s water and electricity were disconnected due to the non-payment of fees.
Many RWAs use disconnection as a measure to recover dues, but does it entail crossing the legal line?
Water and electricity are considered essential services, and multiple court rulings, including from the Supreme Court, have made it clear that RWAs do not have the authority to cut these services. For instance, the Madras High Court ruled in 2010 that disconnecting water over unpaid dues was illegal, as it interfered with residents’ access to common facilities.
The Electricity Act of 2003 also states that only authorised officials can disconnect power, and only under specific conditions. Disconnections must follow legal procedures and be preceded by proper notice.RWAs cannot directly intervene in this process.
However, in states like Karnataka, the issue is more complicated. The lack of a comprehensive real estate regulatory framework means that RWAs and residents often find themselves in a legal grey area, leaving many disputes unresolved.
So, what can RWAs do when faced with non-payment issues? Associations can pursue legal routes such as filing recovery suits in civil court or approaching the registrar if registered under cooperative society laws. In states like Maharashtra, established processes allow RWAs to take their cases to the registrar, who can issue orders for dues recovery along with interest.
Q3. Can a Housing Society be exempt from paying GST?
Did you know that If your society’s turnover is under ₹20 lakh or the total annual maintenance stays below ₹20 lakh, you can skip GST altogether? No registration, no GST, nothing!
But, if you’re in Kashmir, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, Tripura, Himachal Pradesh and Uttarakhand, the threshold for registration liability drops to ₹10 lakh.
Annual Turnover is up to ₹20 lacks and the Maintenance Charge per member per month remains under ₹7500. No GST.
Annual Turnover is up to ₹20 lacks and the Maintenance Charge per member per month is over ₹7500. Still No GST.
Annual Turnover is More than ₹20 Lakh and the Maintenance Charge per member per month remains under ₹7500.
Q4. Can Tenants stand for RWA elections?
According to a recent Mygate survey, more than 52% of RWA members believe tenants don’t share the same voting rights as homeowners. But is that really the case?
There’s no national law that directly bars tenants from standing in elections, yet things get tricky with state laws and society bylaws. For instance, in the U.P. Apartment Act, only apartment owners can be part of the association.
So, are tenants just out of the game?
Not quite! A High Court ruling even recognized lawful tenants as ‘apartment owners’—if they’re living there and impacted by the association’s decisions. This interpretation focuses on including those who live in the community, not just property owners.
But it doesn’t stop there. Bylaws can still influence who can vote or run, leading to legal disputes. In 2022, the Uttarakhand High Court took it a step further, ruling that all residents, including tenants, should have the right to participate in RWA elections.
So, what’s the bottom line? The rules can differ depending on your location, but tenants may have more of a stake in RWA elections than you think.
Q5. Can a gated community have more than one RWA?
The short answer is No. Once an RWA is registered in your community, it holds all legal rights and can’t be replaced by another. This existing RWA has the authority to take legal action and enjoy benefits under the law.
In fact, a notable incident back in 2019 in Gurugram involved four RWAs operating simultaneously in Mayfield Gardens in N-Block, which led to conflicts among residents. The district registrar intervened and cancelled the registrations of these RWAs. According to the Haryana Registration and Regulation of Society (HRRS) Act, no colony can have more than one functional RWA, and only a single common governing body can manage services and facilities in that area.
However if discontent is thick in the air i.e. if a resident or a member of the association is not satisfied with the current RWA, they can file a complaint with the Registrar of Societies.
If the current RWA is defunct—perhaps its term has ended —then they can then establish a new RWA. They just need to follow the Apartment Owners Act or Societies Registration Act and publish a notice in the newspaper.
Q6. Can the society claim a GST refund from the builder if maintenance was only provided for 5 months and not the full 2 years?
If the builder collected 2 years of maintenance fees, including 18% GST, but only maintained the building for 5 months, the builder is required to refund the maintenance fees for the remaining months along with the corresponding GST.
To address this, the apartment owners or association should:
1. Write to the Builder:
– Send a formal letter requesting an explanation for why the GST for the unused maintenance period was not refunded.
– Specify a clear deadline for the builder to respond.
2. Consult a Legal Consultant:
– Engage a legal consultant with expertise in residential property matters and accounting.
– Have the consultant draft a notice demanding the refund of the GST for the unused maintenance period.
The builder should then issue a credit note for the unutilized months, adjusting their taxable income to reflect only the 5 months of maintenance. This will allow the builder to claim a refund or adjustment for the excess GST that was initially paid.
Q7. Can any external organisation help me install solar panels in my community?
If your society needs assistance with installing solar panels on the rooftop, you can reach out to the Directorate of Cooperative Societies. They can connect you with the right resources and authorities, making the process easier and encouraging your community to adopt sustainable energy solutions.
Q8. Is it fine for my residents to promote any business on the Mygate feed?
If you recommend a business on the Mygate feed, please disclose any relationships or financial interests. This includes stating if the business belongs to a friend, relative, or networking group, or if you have an ownership or investment stake in the business.
Q9. Do the recent changes in criminal laws impact building bylaws? If yes, how should we adjust and adapt?
(Ashish, Surabhi garden)
The new Bharatiya Nyaya Sanhita Act has no direct impact on the model bylaws already implemented. However, this act covers all criminal offences that may come under bylaws – vandalism, criminal trespassing etc… Therefore offences of this nature would be subject to the penalty imposed by the act. To be better equipped it would be in one’s best interest to familiarise themselves with criminal offences that would fall under the bylaws.
Q10. What are the typical reasons for the disqualification of candidates from RWA elections?
(John, Sunlight greens)
Candidates may be disqualified from RWA elections due to reasons such as non-payment of dues to society, breach of society rules or bylaws, criminal convictions, or failure to meet eligibility criteria specified in the election guidelines. Additionally, a member cannot contest an election if they fail to pay society dues within three months of receiving a written notice. Additionally, an Associate Member without a No-Objection Certificate from the Original Member cannot participate in the Election.
Q11. What is the expense distribution factor for RWF?
(Jigar, Kalpataru Sunrise)
The expense distribution factors for a Resident Welfare Fund typically involve how funds collected from residents are allocated and distributed to cover various expenses and initiatives within a residential community. The specific factors and methods for expense distribution can vary based on the bylaws and policies of the RWA or housing society, as well as the needs and preferences of the residents. The basic consideration fpr expense distribution is done on the basis of the nature of expense incurred. For instance, shared expenses like service charges are divided equally among all residents, while personal consumption expenses like water charges are calculated based on individual usage. Each society follows its own guidelines, often outlined in state-specific bylaws, ensuring fair allocation tailored to community needs.
Q12. Can by-laws be amended to increase the number of MC members?
(Mitesh, Srishti Complex)
By-laws are regulations made by the local authorities to establish an internal system for decision-making and the obligations of members. The Managing Committee once set up, is responsible for taking up the financial, operational, and executive duties. The number of MC members cannot be increased by amending the by-laws. However, you can appoint two people as advisors to the Committee. They can attend MC meetings and provide advice but do not have voting rights on any resolutions.
Q13. What are the guidelines for electrical charging infrastructure for EV charging in an apartment?
(Abhishek Arora, Alpine Viva)
Navigating the regulations around EV charging infrastructure in gated communities can be daunting, especially since guidelines vary from state to state and city to city. Interestingly, there are currently no pan-Indian guidelines to streamline the process. For Resident Welfare Associations (RWAs) gearing up to install electric vehicle (EV) charging stations in apartment complexes, understanding these nuances is key. To simplify this journey, we’ve put together a comprehensive guide that covers everything RWAs need to know about implementing EV charging infrastructure, complete with current guidelines and best practices.
