MCS ACT: Encroachment /usage of Common Area by Flat Owners - Highlights of bye laws and the role of MC/General Body

The Managing Committee has to read the bye laws in harmony and adopt a standard process as approved by the General Body 

 Almost Every Society has conflicts or even fist fights on usage of common areas, especially the parking, the passage outside the flats and other areas meant for east of movement and common utility.

As a Building lay out, and common areas differ accordingly to the size/class of buildings and also the category of flats , it is essential to review the relevant bye laws and formulate a policy with uniform norms and permitting fair use. What is permissible and fair use again depends on the unique size and design of a building, it is imperative to evolve a robust policy post deliberations at a General Body of Members. 

Bye Law No 165. Penalties for breaches 

Bye Law No 165(a) 

The meeting of the General Body of the Society may prescribe penalties for different breaches of the Bye-laws of the Society. The Secretary of the Society, under instructions from the Committee, shall bring to the notice of the Member concerned, the breach/breaches of the bye-law/bye-laws committed by him. If the Member persists in continuing the breach/breaches, the Committee shall give the notice to the Member to show cause as why the penalty should not be inflicted on him for breach/breaches of the byelaw/byelaws. The General Body Meeting, after considering the Say of the Member and after giving him hearing, may levy penalty to the extent of maximum consolidated penalty not exceeding Rs.5,000/- in any one financial year.

Bye Law No 165(b) 

Save except other provision in the Act, the A.G.M / Special G.B.M. can penalize a Member for committing breaches in his Responsibilities. Such penalty should be reasonable and equal to all such erring Members. A.G.M./Special G.B.M. is empowered to frame the penalty amount. The managing committee shall recover such penalties with proper care.

Bye Law 169(a)

All open /common area meant for use of all Members for eg. staircase, steps, landing areas, parking spaces, lift, corridor, and such other spaces, cannot be occupied by any Member for his own use. The use of such areas shall be restricted to the cause for which these are meant. Any Member found to be violating the above condition by encroachment shall have to vacate the encroachment and further he/she shall pay an amount equal to five times the monthly maintenance charges per month for the period for which he/she has encroached such spaces  and further Members must not carry out any constructions, structural changes over and above the sanctioned plan without prior permission of the Society and Concerned Municipal Authorities / Competent Authorities.          Also Members must use the flat /unit for purpose it was meant/sanctioned. Any Member violating the above directives shall pay an amount equal to five times the monthly maintenance charges, per month with retrospective effect for the period for which such violation is existed.

Procedure:

Concurrent reading of the above bye laws envisage:

(a)     The Secretary under instructions from the Committee, shall bring to the notice of the Member concerned, the breach/breaches of the bye-law/bye-laws committed by him.

(b)     If the Member persists in continuing the breach/breaches, the Committee shall give the notice to the Member to show cause as why the penalty should not be inflicted on him for breach/breaches of the byelaw/byelaws

(c)    If the Member persists in continuing the breach/breaches, the Committee shall give the notice to the Member to show cause as why the penalty should not be inflicted on him for breach/breaches of the byelaw/byelaws. The General Body Meeting, after considering the Say of the Member and after giving him hearing, may levy penalty to the extent of maximum consolidated penalty not exceeding Rs.5,000/- in any one financial year.

Common Area Usage

As per bye law 169, the use of such areas (common) shall be restricted to the cause for which these are meant. While the substantial category of common areas like parking podium and other facilities are clearly set out, the area outside the flats viz. common passage for entry  and exit by the members/residents leading to lift(s)/stair case, refuge area etc., differ as the building plan, number/type of flats, etc.

The area outside the flats are generally used for shoe racks, children’s cycle, plants, etc., and as long as such items do not obstruct the exit passage /disproportionate size and particularly causing hindrance to the neighbouring flats it is an acceptable practice in vogue.

 

Step 1:

Therefore, it would be prudent to have adequate deliberations within the Committee and accordingly put a proposal of permitted/non-permitted use before the General Body for views and formulation of a clear-cut policy, listing out common breaches and fine therefor.  Once the police is framed, should be widely circulated and put up on notice boards for information to all members and residents.

 

Step2:

Post completion of the above procedure a survey by a committee of committee/members  visit all buildings and note down any breach /violation and basis the report the committee follows the procedure as mentioned above.