STEPS TENANTS SHOULD TAKE TO AVOID BEING CHARGED ARBITRARILY

When Karan Singh leased an apartment in a plush housing society in Mumbai a year-and-a-half ago, little did he realize that he would have to face problems. When he moved in, he was asked to pay a monthly fee of Rs 1,000 and Rs 1,500 for two parking spaces for his cars. After three months, the rates were hiked to Rs 1,500 and Rs 2,000.

'Recently, the society increased the fee to Rs 3,000 and Rs 10,000,' says an exasperated Singh. He approached the flat owner, who took up the matter with the society secretary. 'The secretary has not given us a satisfactory answer on the hike in charges every three months. We may have to take legal action if he refuses to budge from his stand,' says the 40-year-old bank executive.

Singh's problem is not unique. In fact, he is lucky to have a landlord who favours him. In many cases, owners refuse to get involved in disputes between tenants and housing societies. 'Tenants are bullied by both the owner and the housing society because they are neither legal owners nor members of the society. However, there is a legal recourse against such harassment that is open to tenants,' says Vinod Sampat, real estate lawyer and president, Cooperative Societies Residential Users Association.

Negotiate with the owner

Your rights as a tenant depend largely on the nature of your lease agreement. There are two types of agreements: rental and leave & license. Under the former, there is a transfer of interest, wherein the tenant cannot be made to vacate the premises, except on the grounds for eviction that are stipulated by the Rent Act or the State Rent Control Act, under which the agreement falls.

On the other hand, a leave & license agreement stipulates that a tenant can be asked to vacate without any reason after a month's notice or as has been agreed to by the two parties.

Also, rental agreements come under the State Rent Control Act, so the owner cannot fix his own rent. However, in the case of a leave & license agreement, the owner can decide the rent he wants to charge. The latter gives more control to the owner over the property, which is why it is more common than the former.

You need to ascertain your rights before you sign agreement

As a tenant, you need to ascertain your rights before you sign the agreement. Negotiate with the owner on the things that are important to you. Will you get a fully furnished house or can you install your own fixtures?

How often and at what time will the owner come to inspect the property? If you inform the owner of a pending repair work, how much time will he take to respond? 'Such details should be decided before the agreement is signed. Though no owner will allow a tenant to alter the basic structure of the house, you can ask for changes that you deem necessary,' says Shveta Jain, director, residential services, Cushman & Wakefield.

After the contract has been designed to your and the owner's satisfaction, you should get it registered, so that neither party can harass the other in the future.

So, if it has been decided that seepage or cracked walls should be repaired within 30 days, and the owner fails to address the issue, you have the right to get the work done and deduct the expenses from the rent.

In case the owner raises an objection, you can approach the police or a civil court on the basis of the registered agreement. However, expenses on renovation or maintenance caused by your own negligence, such as a broken window pane or damaged doors, will not be considered for deduction from the rent.

Handling the housing society

Housing societies tend to impose their own rules, which are not legally binding. For instance, some societies restrict the owners from leasing their apartments to single people, non-vegetarians or those with pets. However, according to a 1990 Supreme Court ruling in the Sanwarmal Kejriwal versus Vishwa Cooperative Housing Society case, a member can keep the tenants of his choice.

Apart from this, housing societies tend to charge a premium for maintenance and other facilities from the tenant. 'Ideally, the society cannot charge extra from the tenant because the latter does not deal with the society, just the owner,' says Ravi Goenka, advocate, Goenka Law Associates. However, under the pretext of providing additional security because of the presence of non-members, that is, the tenants, a society may levy additional charges.

Such charges have to be arrived at mutually with the consent of all members, including the owner. 'While a society is allowed to frame rules for its administration, it cannot force tenants to pay fees that are exorbitant and oppressive in nature. These arbitrary charges tend to be in violation of the constitution and, hence, can be challenged in court,' says Sampat.

Tenant should approach cooperative court in case of harassment

Besides, the society has to frame rules that conform to the model bye-laws of the cooperative housing society. Most societies are members of the National Cooperative Housing Federation of India (nchfindia.net) and have to follow the bye-laws laid down by it.

'If a tenant believes that a charge has been arbitrarily levied on him, he should ask the society to specify in writing the section of the model bye-laws under which it has been charged. If the society has come up with a charge that it cannot legally impose, the tenant can raise objections, and if need be, approach a cooperative court,' advises Goenka.

In case of harassment or unfair discrimination by the society, the tenant should approach the cooperative court along with the owner. He cannot do so on his own since he is not a member of the housing society, while the owner is.

If, on the other hand, the tenant is harassed by the owner or refuses to accompany him to the court, he can approach the police as well as the civil court. Cooperative courts are set up by the state government in some districts, but if there isn't one in your state, you can approach a consumer/civil court.

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