In order to regularise the promotion, construction, sale, management and transfer of ownership of flats, the Karnataka Ownership flat (Regulation of the
promotion of construction, Sale, management and Transfer) Act 1972, was enacted
by the Government of Karnataka. The Act popularly known as Karnataka Act 16 of
1973 was first published in Gazettee Extraordinary on 23.07.1973, received the
assent of the president on 29.06.1974, and came into force on 01.04.1975, as per notification No.FD/KHB/75 dated 06.03.1975. The Act details the rights and
responsibilities of promoter and purchaser of flats.
A
flat is defined in the Act as “a separate and self contained set of premises
used or intended to be used for residence, or office, or shop, or go down, and includes a garage the premises forming a part of a building”.
Promoter
is a person who constructs or causes to be constructed a block of building of
flats or apartments for the purpose of selling some or all of them to other
persons or to a company, co-operative society or others.
Thus a promoter need not construct a flat. He may get them constructed through
another builder. Such construction is for selling some or all of the
flats. Since he receives advance amounts
from proposed purchasers and will be in possession of the land not owned by
him, the Act prescribes certain obligation on promoter.
General liabilities
Section
3 deals with the general liabilities of promoter. The promoter has to disclose the nature of
his title to the land on which the flats are constructed. Such title has to be duly certified by an
advocate who has standing practice of not less than seven years. He shall produce the original documents of
his title to the property. Advocates
certificate of his title, encumbrance certificates, documents relating to the
title, the plan and specifications of building proposed, before the intending
proposer. Some of the promoters refuse
to give copies of the title documents to the proposed purchaser which is
against the law and not ethical. He has
to allow inspection of plans and specifications of the property of the building
approved by local authority, disclose the nature of fixtures, fittings,amenities including provisions for lift. If the promoter himself is the builder shall disclose the prescribed
particulars of design and materials used for building. If the promoter is not the builder, he shall
make available for inspection all agreements entered by him with architects and
contractors related to design and materials used for construction.
Promoter has to prepare and maintain a list of flats with their specific numbers andnames and complete address of persons who have agreed to purchase flats with
consideration amount charged and terms and conditions on which flats are sold
and shall inform the proposed purchaser in writing the date by which the
possession of the flat will be given.
He
has the responsibility of informing in writing the nature and constitution of
organisation to which title being passed with terms and conditions.
He
should not allow persons to enter and take possession of flats until completion
certificate wherever required is obtained from the competent authority. He is duty bound to disclose the full
outgoings including ground rent, municipal taxes, tax on income, water and
power charges and any subsisting mortgage. If the purchaser demands, he has to furnish the true copies of all
documents of title, advocates certificate, encumbrance certificates/documents,
approved plan and specifications, list of furniture, fixtures, amenities, list
of flats with numbers with the name and address of proposed purchasers, the
price at which the flats are sold and also terms and conditions of such sale,
provided the purchaser pays the charges for such copies.
Agreement
The
promoter may receive the advance amount not exceeding 20% of sale price, but
before accepting such advance, he has to enter into an written agreement with
the purchaser and such agreement shall be registered. The sale agreement should contain the
complete details of the building to be constructed, and promoter obligation to
comply with the approved plans and specifications, the date by which the
possession will be handed over, the agreed consideration and mode of payment of
the consideration, nature of owners’ organisation proposed, details of common
areas, facilities including limited common areas and amenities, and percentage
of undivided interest. But most of the
agreements are one sided in favour of promoters / builders. The
copies of advocates certificate and plan and specification of the flat to be
sold has to be enclosed to the agreement.
Promoter as trustee
The
promoter receives various amounts from flat purchasers like advance, deposits,
towards share capital to form the society, or company, ground rent, water and power charges, taxes. He shall maintain
a separate account of such advances and deposits in any bank. He shall hold such money as a trustee and
disburse the moneys towards the intended purposes.
The
promoter who is in possession of flats shall pay all outgoings on flats until
he transfers flats to persons who have purchased or to an organisation of such
persons.
Changes in plans and specifications
After the approved plans and specifications are disclosed / furnished to the proposed purchaser, any alterations in the
structure of any particular flat shall be done only with the prior consent of
the proposed purchaser.
If
any alterations have to be made in the structure of the building the consent of
all proposed purchasers is required. The
building shall be constructed in strict conformity with the approved plans and
specifications.
Any
defect in the construction of the building, materials used in the construction or unauthorized change in construction has to be brought to the notice of the promoter within a year of taking possession, and the promoter shall wherever
possible rectify such defects free of cost. If rectification is not possible the aggrieved person is entitled to receive
reasonable compensation. State government will designate an officer not below
the rank of Superintending engineer to settle the disputes in connection with
defects, reasonable compensation and rectification. The aforesaid person may
approach such designated person within two years of taking possession on
payment of specified fee (Rs.100). The
decision of such officer shall be final.
Delay in handing over possession
The
promoter has to handover the possession of the flat on to the agreed date. Such date may be extended on agreement. The
promoter may also not in a position to handover the possession of the flat for
reasons beyond his control.
If
the promoter fails to deliver the possession of flat on the agreed or extended
date and by another three months thereafter of such agreed extended time the
proposed purchaser may claim refund of the amounts paid.
Similarly
in case of non delivery of flats on account of reasons beyond the control of
the promoter, and if such reasons exists after three months from the agreed
date of handing over possession, the proposed purchaser may claim refund of the
amounts paid.
In
both the cases the promoter shall refund the amounts received with simple
interest at 9% p.a. from the date of receipt till the date of payment. Such amounts and interest shall continue to
be a charge on land and flat but any earlier encumbrances have priority.
Mortgage
The
promoter shall not create any mortgage or charge on the flat or land after the
execution of the agreements without previous written consent of proposed
purchaser. Any mortgage / charge created
without previous written consent of proposed purchaser shall not affect the
right and interest of proposed purchaser.
Formation of society or company
The
promoter has to take steps to form society or company consisting of
owners. The promoter shall submit an
application to the registrar for registration of organisation. Such application shall be submitted within
four months from the date on which minimum number of persons required to form
such society or company have taken flats. The promoter shall represent the flats which are unsold.
If the owners opt to submit to the provisions of Karnataka Apartment Ownership Act 1972, by submitting a deed of declaration, the promoter shall inform the
registrar of co-operative society as soon as possible after the date of which
at least five owners have filed the deed of declaration Conveyance
of title etc.
The
promoter shall take steps to complete his title and convey to the organisation,
which is registered either as co-operative society, or company or association
of flat owners, his right, title and interest in the land and building as per
the agreement. If the agreement provides
no definite date for conveying the title to the organisation/society, he shall
convey his title within four months from the date of which the organisation was
registered and association of owners is duly constituted.
The
promoter will be very co-operative and extend red carpet treatment to the
prospective purchasers at the time of entering into an agreement and receiving
advance money, thereafter it would be very difficult to meet any important
person at promoters office and the purchasers will be at the mercy of
receptionist.