State Housing Federation wants clarity on ownership rights in cooperative housing societies

There are four types of housing society members. Representation pic

With property prices skyrocketing in Mumbai and the Mumbai Metropolitan Region (MMR), the State Housing Federation has insisted that the state government introduce a special chapter/explanation in the still-awaited Maharashtra State Cooperative Societies Rules and also in its bylaws, clearing the misconception of right over property through nomination paper, submitted to the society by the flat owner, when alive.

Housing experts say family members named in nomination forms are mere provisional members and have to adhere to the personal laws for succession claiming property rights if the original owner expires intestate (without will).

Idea mooted

Adv. Shreeprasad Parab, expert director, State Housing Federation

"We as a federation have provided our suggestions to the state authorities to streamline the process of the nomination in cooperative housing societies by making simplified provisions, in the yet-to-be-published Maharashtra State Cooperative Societies Rules and also in its bylaws, by introducing a chapter/explanation on nominations under the sub-head Housing Societies. The federation has been receiving numerous queries/complaints about nominations, especially when the flat owner has expired intestate and next of kin in the family claim membership right on the basis of nomination, filled by the original flat owner, without realising that they (next of kin/legal heirs) are mere provisional members and have to follow the due process of personal law for succession and claim right over the property. However, due to a lack of legal understanding, the next of kin and the society office bearers in most cases remain puzzled," said, Adv. Shreeprasad Parab, expert director, State Housing Federation.

"In Maharashtra, there are more than 1.25 lakh housing societies, having over 30 lakh members and more than 1.2 crore people residing in them. Due to the various differences/ignorance of law, there are many disputes or conflicts between the members of housing societies and the managing committee," said Adv. Parab.

Can't enforce new act without rules in place

Housing societies in Maharashtra are governed by the Maharashtra Cooperative Societies Act of 1960. However, with a large number of cooperative housing societies being formed over the years, the need was felt to change the 1960 Act and a new MSCS Act of 2019, was introduced for housing societies by the state, with effect from March 9, 2019.

Though the nomination process and the concept of provisional membership are mentioned in the new act of 2019 under section 154B of chapter XIII-B, the said provisions under the act are toothless without having the MSCS Rules (yet to be released) for its implementation. "Hence a request has been made by the federation to the state authorities for bringing more clarity and simplifying the process of nomination and provisional membership in the coming MSCS Rules and the bylaws," explained Adv. Parab.

"The concept of membership and ownership in the housing society is closely associated with each other as the person who is the owner of the flat is the member of the society and if any person is a co-owner then he is a joint member. The nomination form is an important document which upheld the continuation of the membership process even after the death of the member/joint member, though temporary," he said.

4 types of CHS members

• Member: Original Member whose name stands first in the title documents such as agreement for sale or sale deed
• Joint member: A joint member is a member whose name stands second, third, fourth etc. in the title documents
• Associate member: An associate member is one who doesn't hold any share, right, title or interest in the flat and is a near relative such as husband, wife, father, mother, brother, sister, son, daughter, son-in-law, daughter-in-law, nephew or niece of the original member.
• Provisional member: A person who is admitted on a temporary basis after the death of the member on the basis of the nomination filed by the deceased member till the legal heir(s) of the deceased member are brought on record.

Nomination forms

It is the duty of every society to get the nomination forms filled up by their members as and when they are admitted to the society. The nomination forms as provided in the Model Bye-Laws 2014 are to be filled in sets of three by every member of the society, incorporating all his/her details such as name, share certificate details, flat number, area etc. The member shall further provide the name(s) of the nominee(s) to whom he/she intends to give provisional membership after his/her death. The nomination form provides details such as the address of the nominee(s), type of relationship with the member, date of birth and the percentage share of each nominee.

Misconceptions

There is a misapprehension in a majority of the societies that only the first owner i.e. the member and not the joint member shall fill the nomination forms which is not correct as the member and the joint members (if any), shall make their nomination separately by filling up separate forms.

"Some societies ask the associate member or the provisional member to fill the nomination forms which is also incorrect as they are not holding title when they are in the capacity of such type of membership," clarified Adv. Parab.

If nomination is filed

On the member's death, the nominee(s) shall apply for provisional membership of the society along with the death certificate, within six months. "If there is more than one nominee, they shall make a joint application to the society and indicate the name of the nominee who should be enrolled as a provisional member of the society," Adv. Parab said.

No nomination filed

If no person has been nominated, then the society shall admit such a person as a provisional member as may appear to the committee to be the heir or legal representative of the deceased member in the manner prescribed. The conditions to apply for provisional membership are the same as if a nomination has been filed.

Percentage of share

It is very clear that the provisional membership is temporary till the legal heir(s) is brought on record. Once the legal heir(s) is on record the provisional member ceases his membership and the legal heir(s) becomes the owner/co-owner of the flat and thereby the member/joint member of the society. "Thus even if the member/joint member incorporates the percentage share to his nominee(s), the nominees ultimately get only temporary membership and the share is ultimately decided by the testamentary documents, succession laws or family arrangement obtained after the death of the member/joint member," Adv. Parab concluded.

Expert take

Rajesh Lovekar, deputy registrar for D ward cooperative housing societies (Malabar Hill, Peddar Road, Walkeshwar, Grant Road, Girgaum etc), who has around 1,150 CHS under him, said, "It is true that under the new MSCS Act, 2019, those mentioned in the nomination form and the legal heirs of the deceased member are mere provisional members and can only assist in the day-to-day functioning of the society, and do not get rights over the property. There are numerous judgments from the Supreme Court, which clearly state that the succession law supersedes the nomination provisions in a housing society."