Uttar Pradesh act 16 of 2010 : The Apartment Act,-2010

1

No. 398(2)/LXXIX-V-1-10-1(ka) 12-2010 Dated Lucknow, March 19 , 2010

NOTIFICATION Miscellaneous

In pursuance of the provisions of clause (3) of Article 348 of the Constitution, the Governor is pleased to order the publication of the following English translation of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Adhiniyam, 2010 (Uttar Pradesh Adhiniyam Sankhya 16 of 2010) as passed by the Uttar Pradesh Legislature assented to by the Governor on March 18, 2010

THE UTTAR PRADESH APARTMENT (PROMOTION OF CONSTRUCTION, OWNERSHIP AND MAINTENANCE)

ACT, 2010(Amended till date)

(U.P. Act no. 16 of 2010) [As passed by the Uttar Pradesh Legislature)

AN ACT

to provide for the ownership of an individual apartment in a building of an undivided interest in

the common areas and facilities appurtenant to such apartment and to make such apartment and interest heritable and transferable and for matters connected therewith or incidental thereto.

IT IS HEREBY enacted in the sixty first year of the Republic of India as follows:-

CHAPTER I PRELIMINARY

Short title, extent and Commencement

1. (1) This Act may be called the Uttar Pradesh Apartment (Promotion of Construction, Ownership, and Maintenance) Act, 2010.

(2) It extends to the whole of State of Uttar Pradesh. (3) It shall come into force on such date as the State Government may, by

notification in the official Gazette, appoint. Application 1[2. The provisions of this Act shall apply to and buildings having four or more

apartments in any building constructed or converted into apartment and land attached to the apartment, whether freehold or held on lease excluding shopping malls, multiplexes and commercial complexes which are maintained as single unit by the promoter or the maintenance agency];

Definitions 3. In this Act, unless the context otherwise requires,— (a) "allottee" in relation to an apartment, means the person to whom such

apartment has been allotted, sold or otherwise transferred by the promoter;

1. Subs. By sec-2 of (Amendment) Act-no-30 of 2016

2

1[(b) ‘apartment’ means a part of any property, intended for any type of independent use, including enclosed spaces located on one or more floors or any part or parts thereof, in a building to be used for residential or official purposes or for the purpose of practicing any profession, or for carrying on any occupation, trade or business (excluding shopping malls, multiplexes and commercial complexes which are maintained as single unit by the promoter or the maintenance agency) or for such other use as may be prescribed, and with a direct exit to a public street, road or to a common area leading to such street, road and includes any Parking space, or room (whether or not adjacent to the building in which such apartment is located) provided by the promoter for use by the owner of such apartment for parking or, as the case may be, for the residence of any domestic aide employed in such apartment];

(c) "apartment number" means the number, letter or combination thereof, designating an apartment;

(d) "apartment owner" means the person or persons owning an apartment or the promoter or his nominee in case of unsold apartments and an undivided interest in the common areas and facilities appurtenant to such apartment in the percentage specified in the Deed of Apartment and includes the lessee of the land on which the building containing such apartment has been constructed, where the lease of such land is for a period of thirty years or more;

(e) "association of apartment owners" means all the owners of the apartments therein, acting as a group in accordance with the byelaws;

(f) "board" means the Board of Management of an Association of Apartment Owners elected by its members under the bye-laws;

(g) "building" means a building constructed on any land, containing four or more apartments, or two or more buildings in any area designated as a block, each containing two or more apartments with a total of four or more apartments in all such buildings;

Provided that an independent house constructed in a row with independent entry and exit, whether or not adjoining to other independent houses, shall not constitute a building.

(h) "bye-laws" means the bye-laws made under this Act; (i) "common areas and facilities" means—

(i) the land on which the building is located and all easements, rights and appurtenances belonging to the land and the building;

2[(ii) the foundations, columns, girders, beams, supports, main walls, roofs/terraces and halls of common use, corridors, lobbies, stairs, stairways, fire-escapes and entrances and exits of the building.

(iii) The basements (area of common use only), cellars, yards, parks, gardens, community centers and common parking areas];

(iv) the premises for the lodging of janitors or persons employed for the management of the property;

(v) installations of central services, such as, power, light, gas, hot and cold water, heating, refrigeration, air conditioning, incinerating and sewerage;

1. Subs. By sec-3(a) of (Amendment) Act-no-30 of 2016 2. Subs. By sec-3(b)(I & ii) of (Amendment) Act-no-30 of 2016

3

(vi) the elevators, tanks, pumps, motors, fans, cable pipe line (TV, gas,

electricity etc.) rain water harvesting system, compressors, ducts and in general all apparatus and installations existing for common use;

1[(vii) such other common areas and community facilities as may be

specified in the bye-laws; and ]; (viii) all other parts of the property necessary or convenient to its

existence, maintenance and safety, or normally in common use; (j) "common expenses" means—

(i) expenses of administration, maintenance, repair or replacement of the common areas and facilities, utilities, equipments and machineries and all other sums assessed against the owners of apartment by the Association of Apartment Owners.

(ii) expenses declared as common expenses by the provisions of this Act or by the bye-laws, or agreed upon by the Association of Apartment Owners;

(k) "common profits" means the balance of all income, rents, profits, and revenues from the common areas and facilities remaining after the deduction of the common expenses;

(l) "competent authority" means any person or authority authorised by the government by notification to perform the functions of the competent authority under this Act for such areas as may be specified in the notification;

(m) "declaration" means declaration referred to in section 12; (n) "deed of apartment" means the Deed of Apartment referred to in

section 14; (o) "government" means the Government of Uttar Pradesh; (p) “independent areas” means the areas which have been declared but

not included as common areas for joint use of apartments and may be sold by the promoter without the interference of other apartment owners;

(q) "joint family" means a Hindu undivided family, and in the case of other persons, a group or unit, the members of which are by custom, joint in possession or residence;

(r) "local authority" means the Development Authority established under the Uttar Pradesh Urban Planning and Development Act, 1973 or Controlling Authority established under the Uttar Pradesh (Regulation of Building Operations) Act, 1958 or Special Area Development Authority established under the Uttar Pradesh Special Area Development Authorities Act, 1986 or the Uttar Pradesh Housing and Development Board established under the Uttar Pradesh Housing and Development Board Act,1965 or the Industrial Area Development Authority established under the Uttar Pradesh Industrial Area Development Authorities Act, 1976 or the Uttar Pradesh Cooperative Housing Federation established under the Uttar Pradesh Cooperative Housing Societies Act, 1965 or the Municipal Corporation constituted under the Uttar Pradesh Municipal Corporations Act, 1959 or the municipality established under the Uttar Pradesh Municipalities Act, 1916, having jurisdiction over the site of property;

1. Subs. By sec-3(b)(iii) of (Amendment) Act-no-30 of 2016

4

(s) ”limited common areas and facilities" means those common areas and

facilities which are designated in writing by the promoter before the allotment, sale or other transfer of any apartment as reserved for use of certain apartment or apartments to the exclusion of the other apartments;

(t) "manager" means the Manager of an Association of Apartment Owners appointed under the bye-laws;

1[(tt) ‘Multiplex’ means a movie theater complex with multiple screens, shopping area, food court and ancillary services within a single building constructed on a land area admeasuring 4000 sqm or more];

(u) "person" includes a firm and a joint family, and also includes a group housing co-operative society;

(v) "Prescribed" means prescribed by rules made under this Act; (w) "promoter" means a person, company, firm, Association or cooperative

society, as the case may be, by which, or by whom the building has been constructed;

(x) "property" means the land, the building, and all improvements and structures thereon, and all easements, rights and appurtenances belonging thereto, and all articles of personal property intended for use in connection therewith, which have been, or are intended to be submitted to the provisions of this Act;

2[(y) ‘Shopping Mall’ means a large enclosed shopping area or complex constructed on a land area admeasuring 4000 sqm or more having independent retail stores, food court and ancillary services];

CHAPTER II DUTIES AND LIABILITIES OF PROMOTERS

General liabilities of promoter

4. (1) Any promoter who intends to sell an apartment, shall make a full and true disclosure in writing of following to an intending purchaser and the Competent Authority:- (a) rights and his title to the land and the building in which the apartments

have been or proposed to be constructed; (b) all encumbrances, if any, on such land or building, and any right, title,

interest or claim of any person in or, over such land or building; (c) the plans and specifications approved by or submitted for approval to

the local authority of the entire building of which such apartment forms part;

(d) detail of all common areas and facilities as per the approved layout plan or building plan;

3[(dd) Built-up area and common area of an apartment]; (e) the nature of fixtures, fittings, and amenities, which have been or

proposed to be provided; (f) the details of the design and specifications of works or and standards of

the material which have been or are proposed to be used in the construction of the building, together with the details of all structural, architectural drawings, layout plans, no objection certificate from Fire Department, external and internal services plan of electricity, sewage, drainage and water supply system etc. to be made available with the Association;

1. Inserted By sec-3© of (Amendment) Act-no-30 of 2016 2. Inserted By sec-3(d) of (Amendment) Act-no-30 of 2016 3. Inserted By sec-4(a) of (Amendment) Act-no-30 of 2016

5

(g) all outgoings, including ground rent, municipal or other local taxes, water and electricity charges, revenue assessments, maintenance and other charges, interest on any mortgage or other encumbrance, if any, in respect of such land, building and apartments;

(h) such other information and documents as may be prescribed. (2) Every promoter shall,

(a) specify in writing the date by which, construction of the apartment is to be completed subject to force majeure clause and intimation sent to such purchaser;

(b) declare the penalty for delay in completion of the building and also penalty in the event of non-payment of instalment by the purchaser;

(c) declare the conditions for cancellation or withdrawal of allotment and the extent of compensation either way in the event of violations of any of the conditions.

(d) give the intending purchaser, on payment of photocopying charges, true copies of the documents referred to in this section.

(3) Where a building or apartment is proposed to be constructed by a promoter, the Jal Sansthan or the Uttar Pradesh Power Corporation Limited or the local authority, may supply water and electricity respectively on a temporary basis on intimation of approval of the plan by the prescribed sanctioning authority:

Provided that the Jal Sansthan or the Uttar Pradesh Power Corporation Limited or the local authority may, on an intimation from the prescribed sanctioning authority, disconnect such supply of water and electricity as the case may be, if the promoter proceeds with the construction of building contrary to the approved plan, except for such deviations as are within the permissible limits:

Provided further that no such disconnection of supply of water and electricity, as the case may be, shall be made by the Jal Sansthan or Uttar Pradesh Power Corporation Limited or Local Authorities without first giving a show cause notice and providing opportunity of hearing for intended disconnection and also recording reasons in writing thereof.

1[(4) After plans, specifications and other particulars specified in this section as sanctioned by the prescribed sanctioning authority are disclosed to the purchaser to home allotment letter in respect of an apartment is issued, the promoter may make such additions are alternations except any change in the location and character of parks and green areas earmarked in the originally approved plan, as may be necessary due to architectural and structural reasons duly recommended and verified by authorized architect or engineer after proper declaration and intimation to said purchaser: Provided that the promoter shall not make any alterations in the plans, specifications and other particulars without obtaining the permission of the prescribed sanctioning authority: Provided further that after completion fully or partially of a project or of a particular phase of a project, the promoter shall not make any alternations in any building or common areas and facilities in respect of which completion certificate has been issued];

1. Subs. By sec- 4(b) of (Amendment) Act-no-30 of 2016

6

(5) An apartment may be transferred by the promoter to any person only after

obtaining the completion certificate from the prescribed sanctioning authority concerned as per building bye-laws. The completion certificate shall be obtained by promoter from prescribed authority 1[within the period specified for completion of the project in the development permit or the building permit as the case may be]; Provided that if the construction work is not completed within the stipulated period, with the permission of the prescribed authority;

Provided furthar that if the completion certificate is not issued by the prescribed sanctioning authority within three months of submission of the application by the promoter complete with all certificates and other documents required, the same shall be deemed to have been issued after the expiry of three months. Explanation: For the purposes of this sub- section "completion" means the completion of the construction works of a building as a whole or the completion of an independent block of such building, as the case may be.

(6) After obtaining the completion certificate as provided in sub-section (5) and handing over physical possession of the apartments to the allottees, it shall be the responsibility of the promoter to hand over the possession of the common areas and facilities and also the originals of the plans and documents to the Association of apartment owners formed and registered under sub-section (2) of section-14.

2[Provided that handing over of physical possession of the common areas and facilities under this sub-section shall be completed within a period of one year from the date of issue of completion certificate or the date by which sixty percent of the apartments have been handed over to the owners, whichever is earlier, subject to the condition that the promoter shall be responsible for the sale and transfer of the balance apartments];

(7) The promoter shall maintain the common areas and facilities till the Association is formed in accordance with the conditions laid down in sub section (2) of section-14 and shall be entitled to levy proportionate maintenance charges as specified in the declaration.

(8) The promoter shall be responsible upto two years after handing over the apartments regarding construction and structural defects in the building constructed by him and he shall get such defects removed at his own cost, failing which he shall liable to pay compensation for the losses incurred by him for such defects.

(9) The promoter shall pay all local taxes including house tax, water tax, sewer tax, until and unless subleases have been executed in favour of the apartment owners

CHAPTER III

RIGHTS AND OBLIGATIONS OF APARTMENT OWNERS Rights of Apartment Owners

5. (1) Every person to whom any apartment is sold or otherwise transferred by the promoter shall subject to the other provisions of this Act, be entitled to the exclusive ownership and possession of the apartment so sold or otherwise transferred to him.

1. Subs. By sec-4© of (Amendment) Act-no-30 of 2016 4. Subs. By sec-4(d) of (Amendment) Act-no-30 of 2016

7

(2) Every person who becomes entitled to the exclusive ownership and

possession of an apartment 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 basis, the area of the apartment in relation to the aggregate area of all apartments of the building.

(3) (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 and approval of the competent authority.

(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 apartment, even though such interest is not expressly mentioned in the conveyance or other instrument.

(4) The common areas and facilities shall not be transferred and 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.

(5) 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 apartment owners.

(6) The necessary work relating to maintenance, repair and modification or relocation 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 bye-laws.

(7) The Association of Apartment Owners shall have the irrevocable right, to be exercised by the Board or 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.

Obligation of Apartment Owners

6. (1) 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 injunctive 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.

2) 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 heriditament or shall add any material structure or excavate any additional basement or cellar or alter the external facade without first obtaining the consent of all the apartment owners. Explanation: In this section, reference to apartment owners shall be construed, in relation to a building in any block, pocket or other designated area, the apartment owners of the concerned building in such block, pocket or other designated area.

8

(CHAPTER IV OWNERSHIP, HERITABILITY AND

TRANSFERABILITY OF APARTMENTS

Apartment to be heritable and transferable

7. Each apartment, together with the undivided interest in the common areas and facilities appurtenant to such apartment, shall, for all purposes constitute 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 the 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 proceedings, remedies 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. 1[Provided that where the allotment, sale or other transfer of any apartment has been made by any group housing co-operative society or association in favour of any member thereof, the transferability of such apartment and all other matters shall be regulated by the law, which may provide a transfer fee at a maximum rate of 1 percent in any case of the sale value, applicable to such group housing co-operative society or association whosoever maintains the common areas and facilities. The transfer fee shall not be leviable in case of heritability];

Ownership of apartment shall be subject to conditions

8. 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 interest 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. There shall not be any hidden charges. All sale consideration shall be fixed either at the time of agreement to sale or when the purchases are made final in writing as per provisions of this Act;

Right of reentry

9. (1) Where any land is given on lease by a person (hereafter in this section referred to as the lessor) to another person (hereafter in this section referred to as the lessee, which term shall include a person in whose favour a sub-lease of such land has been granted), and any building has been constructed on such land by the lessee or by any other person authorised by him or claiming through him, such lessee shall grant in respect of the land as many sub-leases as there are apartments in such building and shall execute separate deeds of sublease in respect of such land in favour of each apartment owner before handing over the possession of apartment in such building to him. The lessor shall be duty bound to supply the plans and other legal documents to the lessee.

1. Subs. By sec-5 of (Amendment) Act-no-30 of 2016

9

Provided that no sub-lease in respect of any land shall be granted

except on the same terms and conditions on which the lease in respect of the land has been granted by the lessor and no additional terms and conditions shall be imposed by the lessee except with the previous approval of the lessor.

(2) Where the lessee has any reason to suspect that there had been any breach of the terms and conditions of the sub-lease referred to in sub- section (1), he may himself inspect the land on which the building containing the concerned apartment has been constructed, or may authorise one or more persons to inspect such land and make a report as to whether there had been any breach of the terms and conditions of any sub-lease in respect of such land and, if so, the nature and extent of such breach, and for this purpose, it shall be lawful for the lessee or any person authorised by him to enter into, and to be in, the land in relation to which such breach has been or is suspected to have been committed.

(3) Where the lessee or any person authorised by him makes an inspection of the land referred to in sub-section (1), he shall record in writing his findings on such inspection [a true copy of which shall be furnished to the apartment owner by whom such breach of the terms and conditions of sub-lease in respect of the land appurtenant to the apartment owned by him has been committed (hereinafter referred to as the defaulting apartment owner)] and where such findings indicate that there had been any breach of the terms and conditions of the sub-lease in respect of such land, the lessee may, by a notice in writing, require the defaulting apartment owner to refrain from committing any breach of the terms and conditions of the sub-lease in respect of such land, or to pay in lieu thereof such composition fees as may be specified in the notice in accordance with such scales of composition fees as may be prescribed.

(4) The defaulting apartment owner who is aggrieved by any notice served on him by the lessee under sub-section (3) may, within thirty days from the date of service of such notice, prefer an appeal to the Court of the District Judge having jurisdiction (hereinafter referred to as the District Court), either challenging the finding of the lessee or any person authorised by him or disputing the amount of composition fees as specified in the notice, and the District Court may, after giving the parties a reasonable opportunity of being heard, confirm, alter or reverse those finding or may confirm, reduce or increase the amount of composition fees or set aside the notice.

(5) Where, on the breach of any terms and conditions of any sub-lease in respect of any land, any composition fees become payable, the defaulting apartment owner shall be deemed to have been guilty of such breach and in default of payment thereof it shall be lawful for the lessee to recover the amount of the composition fees from the defaulting apartment owner as arrears of land revenue.

(6) Where any composition fees are paid whether in pursuance of the notice served under sub-section (3) or in accordance with the decision of the District Court or a higher court on appeal, no further action shall be taken by the lessee for the breach of the terms and conditions of the sub-lease in respect of the land in relation to which payment of such composition fees has been realised.

10

(7) If the defaulting apartment owner omits or fails to refrain from committing

any breach of the terms and conditions of the sub-lease in respect of the land or, as the case may be, omits or fails to pay the composition fees in lieu thereof—

(i) in accordance with the notice issued by the lessee under subsection (3); or

(ii) where the finding of the lessee or the person authorised to inspect the land about any breach of the terms and conditions of any sub- lease in respect of the land or the amount of composition fees specified in the notice issued by the lessee are altered by the District Court on appeal or by any higher court on further appeal, in accordance with the decision of the District Court or such higher court, as the case may be; the lessee shall be entitled,—

(a) where no appeal has been preferred under sub-section (4), within sixty days from the date of service of the notice under sub-section (3), or

(b) where an appeal has been preferred under sub-section (4), within sixty days from the date on which the appeal is finally disposed of by the District Court or, where any further appeal is preferred to a higher court, by such higher court, to exercise the right of re-entry in respect of the undivided interest of the lessee in the land appurtenant to the apartment owned by the defaulting apartment owner, and where such right of re-entry cannot be exercised except by the ejectment of the defaulting apartment owner from his apartment, such right of re-entry shall include a right to eject the defaulting apartment owner from the concerned apartment:

Provided that no such ejectment shall be made unless the defaulting apartment owner has been paid by the lessee such amount as compensation for such ejectment as may be determined in accordance with the prescribed scales of compensation.

(8) No appeal preferred under sub-section (4) shall be admitted, unless twenty-five per cent of the composition fees specified in the notice served on the defaulting apartment owner has been deposited to the credit of the District Court in savings bank account to be opened by the District Court in any branch of an approved bank:

Provided that the District Court may, on sufficient cause being shown, either remit or reduce the amount of such deposit, and the interest accruing on such deposit, shall ensure to the credit of defaulting apartment owner by whom such deposit has been made:

Provided further that the amount of such deposit together with the interest due thereon shall be distributed by the District Court in accordance with the decision in such appeal, or where any further appeal has been preferred against such decision, in accordance with the decision in such further appeal.

(9) The defaulting apartment owner, who is aggrieved by the amount offered to be paid to him under the proviso to sub-section (7) as compensation for ejectment from his apartment may, within thirty days from the date of such offer, prefer an appeal to the District Court and the District Court may, after giving the parties a reasonable opportunity of being heard, maintain, increase or reduce the amount of compensation.

11

(10) On the ejectment of the defaulting apartment owner from the apartment

under sub-section (7), the lessee by whom such ejectment has been made may make a fresh allotment of the concerned apartment to any other person on such terms and conditions as he may think fit.

(11) Where any lessee omits or fails to take any action either in accordance with the provisions of sub-section (2) or sub-section (3) or sub-section (7) the lessor may, in the first instance, require the lessee by a notice in writing to take action against the defaulting apartment owner under sub-section (2) or sub-section (3) or, as the case may be, under sub-section (7), within a period of ninety days from the date of service of such notice, and in the event of the omission or failure of the lessee to do so within such period, the lessor may himself take action as contained in sub-section (2) or subsection (3) or sub-section (7), and the provisions of sub-section (4) to sub-section (6) and sub-section (8) to sub-section (10), shall, as far as may apply to any action taken by him as if such action had been taken by the lessee.

(12) For the removal of doubts, it is hereby declared that no work in any apartment by the owner thereof shall be deemed to be a breach of the terms of the sub-lease in respect of the land on which the building containing such apartment has been constructed unless the work is prohibited by sub-section (2) of section 6.

Purchase or person taking lease of apartments from apartment owners to execute an undertaking

10. Notwithstanding anything contained in the Transfer of Property Act, 1882 (Act No. 4 of 1882), or in any other law for 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 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.

Encumbrances against apartments

11. (1) The owner of each apartment may create any encumbrance, only against the apartment owned by him by executing an instrument and registering it in the office of the registering authority 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) 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 the undivided interest in the common areas and facilities appurtenant to such apartments from the charge or encumbrance on payment of the fractional or proportional amounts 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.

12

Provided that such partial payment shall not prevent the person

having a charge or any of the encumbrance from proceeding to enforce the rights, in relation to the amount not so paid, against any other apartment and the percentage of undivided interest in the common areas and facilities appurtenant to such apartment.

CHAPTER V DECLARATION OF BUILDING AND DEED OF APARTMENT

Contents of Declaration

12. (1) The declaration shall be submitted by a promoter in the office of the competent authority in respect of a building constructed after the commencement of this Act in such form, within such period and in such manner as may be prescribed and shall contain full and true particulars of the following, namely :- (a) description of the land on which the building and improvements are,

or are to be located, and whether the land is free hold or lease hold; (b) Description of the building stating the number of stories and

basements, the number of apartments and principal materials of which it is or is to be constructed;

(c) the number of each apartment and a statement of its location, approximate area, number of rooms and the immediate common area to which it has access and any other data necessary for its proper identification;

(d) description of the common areas and facilities; (e) description of the common areas and facilities if any, stating to which

apartments, their use is reserved; (f) value of the property and of each apartment, and the percentage of

undivided interest in the common areas and the facilities appertaining to each apartment and its owner for all purposes, including voting;

(g) particulars of encumbrances, if any, on the property of apartment and its undivided interest at the date of the declaration;

(h) such other particulars as may be prescribed. 1[ Provided that such declaration shall not be required for the

buildings completed prior to commencement of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) (Amendment) act-2016

Provided further that the amended declaration shall not be required to be filed every time whenever a plan is amended or revised after obtaining the permission of the prescribed sanctioning authority but, the final declaration shall be filed at the time of applying for completion fully or partially of the project as the case may be];

(2) The declaration referred to in sub-section (1) may be amended under such circumstances and in such manner as may be prescribed.

Registration of Deed of Apartment

2[13. No promoter or an apartment owner shall transfer or hand over the possession of any apartment constructed after the commencement of this Uttar Pradesh Apartment (promotion of construction, ownership and maintenance) Act -2010 without executing an appropriate transfer deed and also getting it registered under the provisions of the Registration Act, 1908];

1. Inserted By sec-6 of (Amendment) Act-no-30 of 2016 2. Subs. By sec-7 of (Amendment) Act-no-30 of 2016

13

CHAPTER VI ASSOCIATION OF APARTMENT OWNERS AND BYE-LAWS FOR THE

REGISTRATION OF THE AFFAIRS OF SUCH ASSOCIATION

Association of apartment owners and bye-laws relating thereto

14. (1) There shall be an Association of Apartment Owners for the administration of the affairs in relation to the apartments and the property appertaining thereto and for the management of common areas and facilities :

Provided that where any area has been demarcated for the construction of buildings, whether such area is called a block or pocket or by any other name, there shall be a single Association of Apartment Owners in such demarcated area.

1[(2) It shall be the joint responsibility of the promoter and the apartment owners to form an Association. The promoter shall get the Association registered when such number of apartments have been handed over to the owners which are necessary to form an association or 60% of apartments, whichever is more, by way of sale, transfer or possession, provided the building has been completed along with all infrastructure services and completion certificate obtained from the concerned local authority.

Provided that in case of an independent area or and independent commercial area the promoter may form a separate Association for its management, if required];

(3) In a case, where an association of the apartments owners of a building has not been formed, on the intended date of execution of a deed of apartment in favour of prospective apartment owner, it shall be obligatory for a prospective apartment owner to become member of the association within a period of 4 weeks on receipt of a written intimation about the formation of such association.

(4) Where an association of an apartment owners exist on the intended date of transfer of an apartment, it will be obligatory for the prospective apartment owner to become member of such association before execution of a deed of an apartment in his favour.

(5) On formation of the Association of the Apartment Owners under sub- section (2) above, the management of the affairs of the apartments regarding their common areas and facilities shall be deemed to be transferred from the promoter to the Association which shall thereupon maintain them,

Provided that till all the apartments are sold or transferred, the promoter shall proportionately share the maintenance cost of common areas and facilities.

2[Provided further that the amount collected by the promoter towards interest free maintenance security shall be transferred to the association at the time of handing over of the common areas and facilities];

(6) The Government may by notification in the gazette frame model bye-laws in accordance with which property referred to in subsection (1) shall be administered by the Association of Apartment Owners and the Association shall, at its first meeting, make its byelaws in accordance with the model bye-laws so framed, and in making its bye-laws the Association of Apartment Owners shall not make any departure from, variation of, addition to, or omission from, the model bye-laws aforesaid except with the prior approval of the competent authority. 1. Subs. By sec-8(a) of (Amendment) Act-no-30 of 2016 2. Inserted By sec-8(b) of (Amendment) Act-no-30 of 2016

14

(7) The model bye-laws framed under sub-section (5) shall provide for the following, among other matters, namely:— (a) the manner in which the Association of Apartment Owners is to be

formed; (b) the election, from among apartment owners, of a Board of

Management by the members of the Association of Apartment Owners;

(c) the number of apartment owners constituting the Board, the composition of the Board and that one-third of members of the Board shall retire annually;

(d) the powers and duties of the Board; (e) the honorarium, if any, of the members of the Board; (f) the method of removal from office of the members of the Board; (g) the powers of the Board to engage the services of a Manager; (h) delegation of powers and duties of the Board to such Manager; (i) method of calling meetings of the Association of Apartment Owners

and the number of members of such Association of Apartment Owners;

(j) election of a President of the Association of Apartment Owners from among the apartment owners, who shall preside over the meeting of the Board and of the Association of Apartment Owners;

(k) election of a Secretary to the Association of Apartment Owners from among the apartment owners, who shall be an ex-officio member of the Board and shall keep two separate minutes books, one for the Association of the Apartment Owners and the other for the Board, pages of each of which shall be consecutively numbered and authenticated by the President of the Association of Apartment Owners, and shall record, in the respective minutes books, the resolutions adopted by the Association of Apartment Owners or the Board, as the case may be;

(l) election of a Treasurer from among the apartment owners, who shall keep the financial records of the Association of Apartment Owners as also of the Board;

(m) maintenance, repair and replacement of the common areas and facilities and payment therefor;

(n) manner of collecting from the apartment owners or any other occupant of apartments, share of the common expenses;

(o) resignation and removal of persons employed for the maintenance, repair and replacement of the common areas and facilities;

(p) restrictions with regard to the use and maintenance of the apartments and the use of the common areas and facilities, as may be necessary to prevent unreasonable interference in the use of each apartment and of the common areas and facilities by the several apartment owners;

(q) any matter which may be required by the Competent Authority to be provided for in the bye-laws for the proper or better administration of the property;

(r) such other matters as are required to be, or may be, provided for in the bye-laws.

15

(8) The bye-laws framed under sub-section (5) may also contain provisions, not inconsistent with this Act— (a) enabling the Board to retain certain area of the building for

commercial purposes and to grant lease of the areas so retained, and to apply the proceeds of such lease for the reduction of the common expenses for maintaining the building, common areas and facilities, and if any surplus is left after meeting such expenses, to distribute such surplus to the apartment owners as income;

(b) relating to the audit of the accounts of the Association of Apartment Owners and of the Board, and of the administration of the property;

(c) specifying the times at which and the manner in which annual general meetings and special general meetings of the Association of Apartment Owners shall be held and conducted;

(d) specifying the time at which and the manner in which, the annual report relating to the activities of the Association of Apartment Owners shall be submitted;

(e) specifying the manner in which the income derived and expenditure incurred by the Association of Apartment Owners shall be dealt with or as the case may be, accounted for.

Insurance 15. (1) The Board or Manager- (a) shall have, if requested so to do by a mortgagee having a first

mortgage covering an apartment, the authority to, and (b) shall, if required so to do by the bye-laws or by a majority of the

apartment owners, Obtain insurance for the property against loss or damage by fire or other hazards under such terms and for such amounts as requested or required.

(2) Such insurance coverage shall be written on the property in the name of such Board or Manager as trustee for each of the apartment owners in the percentages specified in the bye-laws.

(3) The premia payable in respect of every such insurance shall be common expenses.

(4) The provisions of sub-section (1) to (3) shall be without prejudice to the right of each of the apartment owner to insure his own apartment for his benefit.

Disposition of property, destruction or damage

16. If within sixty days of the date of damage or destruction to all, or part of any property, or within such further time as the competent authority may, having regard to the circumstances of the case, allow, the Association of Apartment Owners does not determine to repair, reconstruct or re-build such property, then, and in that event,- (a) the property shall be deemed to be owned in common by the apartment

owners; (b) the undivided interest in the property owned in common, which shall

appertain to each apartment owner, shall be the percentage of the undivided interest previously owned by such owner in the common areas and facilities;

(c) any encumbrances affecting any of the apartments shall be deemed to be transferred in accordance with the existing priority to the percentage of the undivided interest of the apartment owner in the property;

16

CHAPTER VII COMMON PROFITS, COMMON EXPENSES AND

OTHER MATTERS Common profits, common expenses and other matters

18. (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 liability to the common expenses payable in respect of such apartment shall be the joint and several liability of the apartment owner and the person in occupation of the apartment.

Apartment owner not to be exempt from liability for contribution by waiver of the use of the common areas and facilities

19. No apartment owner may exempt himself from liability for his contribution towards the common expenses by waiver of the use of enjoyment of any of the common areas and facilities, or by the abandonment of his apartment

Common expenses to be a charge on the apartment

20. (1) All sums assessed by the Association of Apartment Owners, but unpaid for the share of the common expenses chargeable to any apartment, shall constitute a charge on such apartment prior to all other charges except only- (i) the charge, if any, on the apartment for payment of Government and

Municipal taxes; and (ii) all the sums unpaid on a first mortgage of the apartment.

(2) The Association of Apartment Owners may approach the Competent Authority with a request for recovery of amount lying unpaid for a period of more than 12 months and which is due towards the common expenses payable in respect of an apartment, and the Competent Authority, on being satisfied, shall take appropriate action for its recovery from the owner of that apartment as arrears of land revenue

(d) the property shall be subject to an action for partition at the suit of any apartment owners in which event, the net proceeds of sale together with the net proceeds of the insurance on the property, if any, shall be considered as one fund and shall be divided amongst all the apartment owners in the percentage equal to the percentage of undivided interest owned by each apartment owner in the property after paying out, all the respective shares of the apartment owners to extent sufficient for the purpose and all charges on the undivided interest in the property owned by each apartment owner.

Action 17. (1) Without prejudice to the rights of any apartment owner, action may be brought by the Board or Manager, in either case in the discretion of the Board on behalf of two or more of the apartment owners as their respective interest may appear, with respect to any cause of action relating to the common areas and facilities or more than one apartment.

(2) The service of process on two or more apartment owners in any action relating to the common areas and facilities or more than one apartment may be made on the person, designated in the bye-laws to receive service of process.

17

Separate assessments

21. (1) Notwithstanding anything to the contrary contained in any law relating to local authorities, each apartment and its percentage of undivided interest in the common areas and facilities appurtenant to such apartment shall be deemed to be separate property for the purpose of assessment of tax on lands and building leviable under such law and shall be assessed and taxed accordingly; and for this purpose a local authority shall make suitable regulations to carry out the provisions of this section.

(2) Neither the building nor the property nor the common areas and facilities referred to in sub-section (1), shall be deemed to be separate properties for the purpose of the levy of such taxes.

Board to cut off, withhold, curtail or reduce essential supply of service

22 (1) If an apartment owner ; (a) either willfully violates or evidently threatens to violates the provision of sub-section (1) or sub-section (2) of section 6, or (b) fails to pay the common expenses, which are payable by him under this Act for a period of more than 6 months, the general body of the Association of Apartment Owners concerned may, after giving notice of not less than seven days to such apartment owner, may pass a resolution to cut off withhold or in any manner curtail or reduce, any essential supply or service enjoyed by such apartment owner; Provided that such Association of Owners shall not take any action in furtherance of the resolution referred to above unless a certified copy is sent each to the competent Authority and the concerned Apartment owner by registered or speed post and one month expires from the date of its being sent and its copy is displayed at some conspicuous place of the building. Explanation: It is clarified that the power to take action under this sub section shall not prejudice the other rights and remedies of the Association of Apartment Owners available under this Act or under any other law for the time being in force.

(2) If an apartment owner is aggrieved by an action under sub-section (1), he may prefer an appeal to the Competent Authority within a period of 15 days from the date of the receipt of the copy of the resolution, and the Competent Authority shall after affording sufficient opportunity to the parties pass such orders most expeditiously as he deems fit.

Joint and several liability of vendor etc., for unpaid common

23. (1) Upon the sale, bequest or other transfer of an apartment, the purchaser of the apartment or the grantee or legatee or the transferee, as the case may be, shall be jointly and severally liable with the vendor or the transferor for all unpaid assessment against the vendor or transferor for his share of the common expenses up to

expenses the time of the sale, bequest or other transfer, without prejudice to the right of the purchaser, grantee, legatee or transferee to recover from the vendor or the transferor any amount paid by the purchaser, grantee or legatee or transferee thereof. (2) Any purchaser, grantee, legatee or transferee refereed to in subsection

(1) shall be entitled to a statement from the Board or Manager setting forth the amount of the unpaid assessment against the vendor or transferor, as the case may be, and such purchaser, grantee, legatee or transferee shall not be liable for, nor shall be subject to a charge for any unpaid share of common expenses against such apartment accrued prior to such sale, bequest or other transfer in excess of the amount set forth in the statement.

18

CHAPTER VIII MISCELLANEOUS

Act to be binding on apartment owners, tenants, etc.

24. (1) All apartment owners, tenants of owners, employees of owners and tenants, or any other person who may, in any manner, use the property or any part thereof to which this Act applies, shall be subject to the provision of this Act and the bye-laws and the rules made thereunder :

Provided that nothing contained in this sub-section shall effect the right, title or interest acquired by any allottee or other person in common areas and facilities from any promoter on or before the date of commencement of this Act.

(3) All agreements, decisions and determinations lawfully made by the Association of Apartment Owners in accordance with the provisions of this Act and the bye-laws shall be deemed to be binding on all apartment owners.

Offences 25. (1) If any promoter, (a) transfers by way of sale or otherwise any land appurtenant to a building

and such land was originally shown as common areas and facilities such as park, open space, path ways, circulation areas, etc. in the plan approved by the prescribed sanctioning authority, or

(b) illegally makes construction in contravention of the plan approved by the prescribed sanctioning authority beyond compoundable limits; he shall, on conviction, be punished with imprisonment for a term not less than three years which may extend to six years or with fine not less than three lacs rupees, which may extend to five lacs rupees or with both. Explanation: Above punishment shall not exonerate the promoter from his liability to restore the status of common areas and facilities as per the approved plan.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 it shall be lawful for a Metropolitan Magistrate or a Judicial Magistrate of the First Class to pass on any person convicted of an offence under this Act, a sentence of imprisonment or fine or both as provided in the relevant section of this Act, in exercise of powers under section 29 of the said Code.

(3) If the owner of an apartment which is subject to the provisions of Chapter III contravenes-

(a) the provisions of section -5, or 6 or (b) any bye-laws made under the provisions of this Act, he shall, on

conviction, be punishable with fine not less than ten thousand rupees which may extend to Fifty thousand rupees and in case of a continuing contravention, to an additional fine which may extend to one thousand rupees for every day during which such contravention continues after the conviction.

(4) No court shall take cognizance of an offence under this section, except on the written complaint by the board after a majority decision thereof and after obtaining prior permission of the Competent Authority in such manner as may be prescribed.

Offences by Companies

26. (1) Where an offence under this Act has been committed by a company, every person who, at the time the offence was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

19

Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence.

(4) Notwithstanding anything contained in clause (1), where an offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly.

Explanation-For the purposes of this section- (a) "company" means any body corporate and includes a firm or other

association of individuals; and (b) "director" in relation to a firm, means a partner in the firm.

Control by State Government

27. (1) The Competent Authority Shall carryout such directions as may be issued to it from time to time by the State Government for the efficient administration of this Act.

(2) If in, or in connection with, the exercise of its powers and discharge of its functions by the Competent Authority under this Act any dispute arises between the Competent Authority and the State Government, the decision of the State Government on such dispute shall be final.

(3) The State Government may, at any time, either on its own motion or on application made to it in this behalf, call for the records of any case disposed of or order passed by the Competent Authority for the purpose of the satisfying itself as to the legality or propriety of any order passed or direction issued and may pass such order or issue such direction in relation thereto as it may think fit: Provided that the State Government shall not pass an order prejudicial to any person without affording such person a reasonable opportunity of being heard.

(4) Every order of the State Government made in exercise of the powers conferred by this Act shall be final and shall not be called in question in any court.

Exemptions 28. (1) Nothing in section 25 and 26 of this Act shall apply, if the promoter is- (a) a local authority or any other statutory body constituted for the

development of land or housing; or (b) a company or a body wholly owned or controlled by the government

created for development of land or housing or promotion of industry. (2) No suit, prosecution or other legal proceeding shall lie against the

Government or any officer or other employee of the Government in respect of anything which is in good faith done or intended to be done by or under this Act.

Removal of doubts

29. For the removal of doubts, it is hereby declared that the provisions of the Transfer of Property Act, 1882 (Act No. 4 of 1882), shall, in so far as they are not inconsistent with the provisions of this Act, apply to the transfer of any apartment, together with its undivided interest in the common areas and facilities appurtenant thereto, made by the owner of such apartment, whether such transfer is made by sale, lease, mortgage, exchange, gift or otherwise, as they apply to the transfer of any immovable property.

20

Power to make rules

30. The Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

Overriding effect of this Act

31. (1) The provisions of this Act shall have effect, notwithstanding anything inconsistent therewith contained in any other law for the time being in force;

(2) Save as otherwise expressly provided in sub-section (1) the provisions of this Act, shall be in addition to, and not in derogation of any other law for the time being in force.

Power to exempt

32. If the Government is of the opinion that the operation of any provision of this Act causes any undue hardship, it may exempt, by a general or special order, any class of person or areas from the provisions of this Act.

Removal of difficulties

33. (1) The Government may, for the purpose of removing any difficulty, by a notified order, direct that the provisions of this Act, shall, during such period, as may be specified in the order, have effect subject to such adaptation whether by way of modification, addition or omission, as it may deem necessary or expedient:

Provided that no order shall be made after a period of two years from the date of commencement of this Act,

(2) No order made under this section shall be called in question in any court on the ground that no such difficulty existed or was required to be removed.

Repeal of U.P. Act no. 50 of 1975

34. The Uttar Pradesh Ownership of Flats Act, 1975 is hereby repealed.

STATEMENT OF OBJECTS AND REASONS

Housing is a basic human necessity and the quality of the house as well as of its environment plays an important role in the growth of individuals, both physically and mentally. The widening gap between the rising urban population and the housing stock added every year has gradually reached such a critical stage that the problem of providing proper shelter and desirable standard of living seems very difficult of be solved. Moreover, majority of the citizen of urban areas of the State cannot thinks in terms of owing houses on individual basis because of the shortage of land in the urban areas. The efforts made by the Government as well as different agencies have not made much dent into the housing problem.

Uttar Pradesh is predominantly an agricultural State; is no advisable to use fertile lands more and more for housing purposes which ultimately will affect the production of food grains. It is essential investment should be observed, for which Group Housing development will have to be promoted. With a view to promoting the Group Housing, it has been decided to make a law to provide for the ownership of an individual apartment in a building of an undivided interest in the common areas and facilities appurtenant of such apartment and to make such apartment and interest heritable and transferable.

The Uttar Pradesh Apartment (Promotion of Construction Ownership and Maintenance) Bill, 2010 is introduced accordingly.

By order, P. V. KUSHWAHA,

Sachiv

21

No. 398(2)/LXXIX-V-1-10-1(ka) 12-2010 Dated Lucknow, March 19 , 2010

NOTIFICATION Miscellaneous

In pursuance of the provisions of clause (3) of Article 348 of the Constitution, the Governor is pleased to order the publication of the following English translation of the Uttar Pradesh Apartment (Promotion of Construction, Ownership and Maintenance) Adhiniyam, 2010 (Uttar Pradesh Adhiniyam Sankhya 16 of 2010) as passed by the Uttar Pradesh Legislature assented to by the Governor on March 18, 2010

THE UTTAR PRADESH APARTMENT (PROMOTION OF CONSTRUCTION, OWNERSHIP AND MAINTENANCE)

ACT, 2010

(U.P. Act no. 16 of 2010) [As passed by the Uttar Pradesh Legislature)

AN ACT

to provide for the ownership of an individual apartment in a building of an undivided interest in

the common areas and facilities appurtenant to such apartment and to make such apartment and interest heritable and transferable and for matters connected therewith or incidental thereto.

IT IS HEREBY enacted in the sixty first year of the Republic of India as follows:-

CHAPTER I PRELIMINARY

Short title, extent and Commencement

1. (1) This Act may be called the Uttar Pradesh Apartment (Promotion of Construction, Ownership, and Maintenance) Act, 2010.

(2) It extends to the whole of State of Uttar Pradesh. (3) It shall come into force on such date as the State Government may, by

notification in the official Gazette, appoint. Application 2. The provisions of this Act shall apply to all buildings having four or more

apartments in any building constructed or converted into apartment and land attached to the apartment, whether freehold or held on lease excluding shopping malls and multiplexes.

Definitions 3. In this Act, unless the context otherwise requires,— (a) "allottee" in relation to an apartment, means the person to whom such

apartment has been allotted, sold or otherwise transferred by the promoter;

(b) "apartment" means a part of any property, intended for any type of independent use, including enclosed spaces located on one or more floors or any part or parts thereof, in a building to be used for residential or official purposes or for the purpose of practicing any profession, or for carrying on any occupation, trade or business (excluding shopping malls and multiplexes) or for such other use as may be prescribed, and with a direct exit to a public street, road or to a

22

common area leading to such street, road and includes any garage or room (whether or not adjacent to the building in which such apartment is located) provided by the promoter for use by the owner of such apartment for parking or, as the case may be, for the residence of any domestic aide employed in such apartment;