Chapter II OWNERSHIP, HERITABILITY AND TRANSFERABILITY OF APARTMENTS

Where an Apartment is transferred to one person for consideration paid or provided by any other person for his own benefit, the transferee shall, not-withstanding any thing in the Transfer of Property Act, 1882 or in any other law for the time being in force, be deemed to be the real owner of such Apartment, and no court shall consider any claim of the person, paying and providing the consideration for title in such Apartment on the ground that he/she did not intend to pay or provide such consideration for the benefit of the transferee and that the transferee is his benamidar, or on any other ground.

(1) Where the Developer/ Promoter is not the owner of the land over which the Apartment is to be built, the Developer/ Promoter and the Owner shall execute and register an agreement stating all the terms and conditions of the agreement including the portion of the building and land to be shared by the Developer/ Promoter and the Owner. The agreement document shall also include that after the completion of construction of the building project the respective share owner i.e.; developer/ promoter and the land owner, shall be absolute owner of their respective shares and they will be entitle to sell/ transfer their shares separately. (2) The final sale/ lease of the Apartment along with the Common areas and facilities shall be executed and registered by the Developer/ Promoter or the Owner, as the case may be, as per sub-section 5.1. in favour of the prospective Apartment Owner.

Each Apartment owner shall comply strictly with the bye-laws and with the covenants, conditions and restrictions set forth in the Deed of Apartment, and failure to comply with any of them shall be a ground for action to recover sums due for damages, or for inductive relief, or both, by the Manager or Board on behalf of the Association of Apartment Owners or, in a proper case, by an aggrieved apartment owner.

(1) Notwithstanding anything in other law, a promoter who intends to construct or constructs a block or building of Apartment, all or some of which are to be taken or are taken on ownership basis, shall, in all transaction with persons intending to take or taking one or more of such Apartment, be liable to give or produce, or cause to be given or produced, the information and the documents hereinafter in this section mentioned, a copy of which should also be filed with the Competent Authority for information, including the full particulars about their identity, address etc. (2) A Promoter, who constructs or intends to construct such block or building of Apartment, shall - (a) make full and true disclosure of the nature of his title to the land on which the Apartment are constructed, or are to be constructed, such title to the land as aforesaid having been duly certified by an Attorney-at-law, or by an Advocate of not less than seven years standing; (b) make full and true disclosure of all encumbrances on such land, including any title, interest or claim of any party in or over such land. (c) give inspection on seven days notice or demand, of the plans and specification of the building, such as specifications relating to structural safety against earthquake and fire safety, built or to be built on the land; such plans and specifications having been approved by the local authority which he is required so to do under any law for the time being in force; (d) disclose the nature of fixtures, fittings and amenities (including the provision for one or more lifts) provided or to be provided; (e) disclose on reasonable notice or demand if the promoter is himself the builder, the prescribed particulars as respects the design and the materials to be used in the construction of the building, and if the promoter is not himself the builder disclose, on such notice or demand, all agreements entered into by him with the architects and contractors regarding the design, materials and construction of the buildings; (f) specify in writing the date by which possession of the Apartment is to be handed over (and he shall hand over such possession accordingly); (g) prepare and maintain a list of Apartment with their numbers already taken or agreed to be take, and the names and addresses of the parties, and the price charged or agreed to be charged therefor, and the terms and conditions if any on which the Apartment are taken or agreed to be taken; (h) state in writing, the precise nature of the organization of persons to be constituted and to which title is to be passed, and the terms and conditions governing such organization of persons who have taken or are to take the Apartment; (i) not allow persons enter into possession until a completion certificate where such certificate is required to be given under any law, is duly given by the local authority (and no person shall take possession of a Apartment until such completion certificate has been duly given by the local Authority); (j) make a full and true disclosure of all outgoings (including ground rent, if any, municipal or other local taxes, taxes on income, water charges and electricity charges, revenue assessment, interest on any mortgage or other encumbrances, if any); (k) make a full and true disclosure of such other information and document; in such manner as may be prescribed; and given on demand true copies of such of the documents referred to in any of the clauses of this subsection as may be prescribed at a reasonable charge therefor. (l) display or keep all the documents, plans or specifications (or copies thereof) referred to in clauses (a), (b) and (c), at the site and permit inspection thereof to persons intending to take or taking one or more Apartment. (m) when the Apartment are advertised for sale, disclose inter alia in the advertisement the following particulars, namely :- (i) the extent of the carpet area of the Apartment including the area of the balconies which should be shown separately; (ii) the price of the Apartment including the proportionate price of the Common areas and facilities which should be shown separately, to be paid by the purchaser of Apartment and the intervals at which the installments thereof may be paid; (iii) the nature, extent and description of the Common areas and facilities; (iv) the nature, extent and description of limited Common areas and facilities, and; (v) the Fire Safety & Earthquake resistant provisions as per the norms laid down in law;

(1) The Promoter would execute an agreement with an Allottee setting out the terms and conditions of construction, payment schedules and other requirements under Section 7 of the Act and every Allottee who has executed an agreement to take an Apartment shall pay at the proper time and place the price, his proportionate share as amended time to time of the Municipal taxes, water and electricity charges, ground rent (if any) and other public charges in accordance with his agreement with the promoter; and where a co-operative society or a company of persons taking the Apartment is to be constituted, co-operate in the formation of such society or company, as the case may be. (2) Any person who has executed an agreement to take an Apartment and who, without reasonable excuse, fails to comply with or contravenes sub-section 8.1 shall, on conviction, be punished with fine which may extend to two thousand rupees.

(1) The Common profits of the property shall be distributed among, and the Common expenses shall be charged to, the Apartment owners according to the percentage of the undivided interest of the Apartment owners in the Common areas and facilities. (2) Where the Apartment owner is not in the occupation of the Apartment owned by him, the Common expenses payable by such Apartment owner may be recovered from the person in the occupation of the Apartment. (3) Common profits can be used for major repair/ up-gradation of Common facilities in future.

(1) Every person to whom any Apartment is allotted, sold or otherwise transferred by the Promoter, on or after the commencement of this Act shall, save as otherwise provided in Section 11, and subject to the other provisions of this Act, be entitled to the exclusive ownership and possession of the Apartment so allotted sold or otherwise transferred to him. (2) Every person to whom any Apartment was allotted, sold or otherwise transferred by the promoter before the commencement of this Act shall, save as otherwise provided under section 11 and subject to the other provisions of this Act, be entitled, on and from such commencement, to the exclusive ownership and possession of the Apartment so allotted, sold or otherwise transferred to him. (3) Every person who becomes entitled to the exclusive ownership and possession of an Apartment under sub-section (1) or sub-section (2) shall be entitled to such percentage of undivided interest in the Common areas and facilities as may be specified in the Deed of Apartment and such percentage shall be computed by taking, as a basic, the value of the Apartment in relation to the value of the property. (4) (a) The percentage of the undivided interest of each Apartment owner in the Common areas and facilities shall have a permanent character, and shall not be altered without the written consent of all the Apartment owners. (b) The percentage of the undivided interest in the Common areas and facilities shall not be separated from the Apartment to which it appertains and shall be deemed to be conveyed or encumbered with the Apartment, even though such interest is not expressly mentioned in the conveyance or other instrument. (5) The Common areas and facilities shall remain undivided and no Apartment owner or any other person shall bring any action for partition or division of any part thereof, and any covenant to the contrary shall be void. (6) Each Apartment owner may use the Common areas and facilities in accordance with the purposes for which they are intended without hindering or encroaching upon the lawful rights of the other Apartments owners. (7) The necessary work relating to maintenance repair and replacement of the Common areas and facilities and the making of any additions or improvements thereto shall be carried out only in accordance with the provisions of this Act and the byelaws. (8) The Association of Apartment Owners shall have the irrevocable right, to be exercised by the Board of Manager, to have access to each Apartment from time to time during reasonable hours for the maintenance, repairs or replacement of any of the Common areas or facilities therein, or accessible there from, or for making emergency repairs therein necessary to prevent damage to the Common areas and facilities or to any other Apartment or Apartments.

Where any allotment, sale or other transfer of any Apartment has been made, whether before or after the commencement of this Act, in pursuance of any promise of payment, or part payment, of the consideration thereof, the allottee or transferee, as the case may be, shall not become entitled to the ownership and possession of that Apartment or to a percentage of undivided interests in the Common areas and facilities appurtenant to such Apartment, until full payment has been made of the consideration thereof together with interest, if any due thereon, and where any such allottee or transferee has been inducted into the possession of such Apartment or any part thereof in pursuance of such allotment or transfer, he shall, until the full payment of the consideration has been made, continue to remain in possession thereof on the same terms and conditions on which he was so inducted into possession of such Apartment or part thereof.

Subject to the provisions of Section 11, each Apartment, together with the undivided interest in the Common areas and facilities appurtenant to such Apartment, shall, for all purposes constitute as a heritable and transferable immovable property within the meaning of any law for the time being in force, and accordingly, an Apartment owner may transfer his Apartment and percentage of undivided interest in the Common areas and facilities appurtenant to such Apartment by way of sale, mortgage, lease, gift, exchange or in any other manner whatsoever in the same manner, to the same extent and subject to the same rights, privileges obligations, liabilities, investigations, legal proceeding, remedy and to penalty forfeiture or punishment as any other immovable property or make a bequest of the same under the law applicable to the transfer and succession of immovable property;

Provided that where the allotment, sale, or other transfer of any Apartment has been made by any group housing co-operative society in favour of any member thereof, the transferability of such Apartment and all other matters shall be regulated by the law applicable to such group housing co-operative society.

Notwithstanding anything contained in the Transfer of Property Act, 1982 (4 of 1882), or in any other law of the time being in force, any person acquiring any Apartment from any Apartment owner by gift, exchange, purchase or otherwise, or taking lease of an Apartment from an Apartment owner for a period of thirty years or more, shall - (a) in respect of the said Apartment, be subject to the provisions of this Act; and (b) execute and register an instrument in such form, in such manner and within such period, as may be prescribed, giving an undertaking to comply with the covenants, conditions and restrictions, subject to which such Apartment is owned by the Apartment owner aforesaid.

No Apartment owner shall do any work which would be prejudicial to the soundness or safety of the property or reduce the value thereof or impair any easement or hereditament or shall add any material structure or excavate any addition basement or cellar without first obtaining the consent of all the other Apartment owners. Explanation – In this section, reference to Apartment owners shall be construed, in relation to a multi-storied building in any block, pocket or other designated area, the Apartment owners of the concerned multi-storied building in such block, pocket or other designated area.

(1) The owner of each Apartment may create any encumbrance, only against the Apartment owned by him and the percentage of the undivided interest in the Common areas and facilities appurtenant to such Apartment in the same manner and to the same extent as may be created in relation to any other separate parcel of property subject to individual ownership. Provided that where any such encumbrance is created, the Apartment in relation to which such encumbrance has been created shall not be partitioned or sub-divided. (2) No labour performed or material furnished with the consent, or at the request, of an Apartment owner or his agent or his contractor or sub-contractor, shall be the basis for a charge or any encumbrance under the provisions of the Transfer of Property Act, 1882 (4 of 1882), against the Apartment or property of any other Apartment owner not expressly consenting to, or requesting the same, except that such express consent shall be deemed to be given by the other Apartment owner in the case of emergency repairs thereto. (3) The labour performed and material furnished for the Common areas and facilities, if duly authorized by the Association of Apartment Owner in accordance with the provisions of this Act or the bye-laws, shall be deemed to be performed or furnished with the express consent of each Apartment owner and shall be the basis for a charge or encumbrance under the Act aforesaid against each of the Apartments and shall be subject to the provisions of sub-section (4) (4) In the event of a charge or any encumbrance against two or more Apartments becoming effective, the Apartment owners of the separate Apartments may remove their Apartments and the percentage of undivided interest in the Common areas and facilities appurtenant to such Apartments from the charge or encumbrance on payment of the fractional or proportional amount attributable to each of the Apartments affected and on such payment, the Apartment and the percentage of undivided interest in the Common areas and facilities appurtenant thereto shall be free of the charge or encumbrance so removed. Provided that such partial payment shall not prevent the person having a charge or any of the encumbrances from proceeding to enforce the rights in relation to the amount not so paid, against any other Apartment and the percentage or undivided interest in the Common areas and facilities appurtenant to such Apartment. (5) On any such payment, discharge or other satisfaction, referred to in sub-section (4) the Apartment and the percentage of undivided interest in the Common areas and facilities appurtenant thereto shall be free and clear of the charge or encumbrance, so paid, satisfied or discharged.

As soon as a minimum number of persons required to form a Co-operative Society or a company have taken Apartments, the promoter shall within the prescribed period submit an application to the Registrar for registration of the organization of persons who take the Apartments as a Co-operative Society, or as the case may be, as a company; and the promoter shall join, in respect of the Apartments which have not been taken, in such application for membership of a Co-operative Society or as the case may be, of a company.

(1) Any promoter who knowingly makes a false disclosure in respect of any of the matters referred to in clauses (a), (b), (c), (g), (i) or (j) of Section (2) or contravenes the provisions of this Act shall, on conviction, be punished with imprisonment for a term which may extend to one year or with fine which may extend to two thousand rupees, or with both. (2) a promoter who commits criminal breach of trust of any amount advanced or deposited with him for the purposes mentioned in Section 10 shall, on conviction be punished with imprisonment for a term which may extend to four years, or with fine, or with both; (3) A Promoter who constructs a building in violation of plans and specifications, approved by the Local Authority or BRDA Act notified by the Local Authority shall on conviction be punished with imprisonment for a term which may extend to ten years or with fine, or with both;

Nothing contained in this Act shall apply to the State Government or to The Bihar State Housing Board constituted under The Bihar State Housing Board Act, 1982 [Bihar Act 57 of 1982, published in Bihar Gazette (Extra-ordinary) dated 08-10-1983].