UP APARTMENT ACT 2010 IN A NUTSHELL

Decoding U.P Apartment Act In Bullet Points:

The Allahabad High Court judgment clears the air on a number of critical points in group
housing and development matters in Uttar Pradesh
About completion certificate
(1) Completion certificate must be obtained and deed of apartment must be executed
and registered by builder/promoter before giving possession of an apartment. If the
developer fails to do so, he will not be able to claim, what is called, limited common
areas and facilities or independent areas.
(2) The promoter has to provide all infrastructure services and to obtain completion
certificate, failing which the promoter will invite the punishment for the offence as
prescribed under Section 25 of the Act, including the punishment of imprisonment under
Section 25 (1) of the Act.
(3) In case the whole project is not complete, the competent authority will give
provisional completion certificate to the completed portion with all infrastructure
services.
For purchasable FAR :-
(1) The FAR or any additional FAR is a property, appended to rights in the property on
which the building is constructed, and is thus a property in which the apartment owners
have interest by virtue of the provisions of the UP Apartment Act, 2010.
(2) The promoter shall not make any alterations in the plans, specifications and other
particulars without the previous consent of the allottee.
(3) The promoter cannot make alterations in the plans after possession and execution of
conveyance deed without getting it approved by the majority owners in the meeting of
the association.
For common areas and facilities:-
(1) Common areas and facilities are deemed handed over to the association after
adopting the model bylaws.
(2) MOFA Act and Rules which have the same object and purpose as the UP Apartment
Act, 2010, of which definitions and various provisions are similar to the UP Apartment
Act, 2010, and the judgment passed in the Nahalchand Laloochand (P) Ltd v Panchali
Cooperative Housing Society Ltd. applies while defining common areas and facilities
(3) The builder has to propose the plan and common benefit to the owners first and get
the majority to approve the building plan and its usage.
(4) The limited common areas and facilities, which are specified in writing by the
promoter before the allotment, sale or other transfer and the independent areas, which
have been declared but not included as common areas for joint use of apartments, must
be clearly defined and delineated in the declaration under Section 12, failing which the
promoter will not be entitled to claim these common areas and facilities to be limited or
independent.
Act applies to all old/new buildings :-
The UP Apartment Act, 2010, which has come into force from March 19, 2010, is
applicable to all the buildings, which have three or more than three apartments intended
for any type of independent use including enclosed spaces located on one or more
floors 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.
Regarding true disclosure of the project:-
(1) Promoters will have to disclose all details of the project and common assets to buyer
before allotment.
(2) Declaration has to be filed by all promoters within 12 months from the date of
approval of building plan and within 90 days for constructed or under-construction
buildings.
(3) Promoter cannot change the scheme without the written consent of all the allottees.
Competent authority:-
(1) The competent authority includes vice chairman of the development or the collector
of the district. In case of the industrial development authority the competent authority
shall be the chief executive officer of the industrial development authority.
(2) For the purposes of discharging functions and duties and resolving the disputes the
competent authority will be entitled to delegate its powers to an officer not below the
rank of joint secretary, including legal advisor of the authority and any sub divisional
magistrate of the district in case of a district.
(3) The competent authority will also be entitled to verify the contents of the declaration
under Section 12 of the UP Apartment Act, 2010 and to decide any question, which may
arise out of such declaration.
(4) Any dispute raised before the competent authority shall be decided by the
competent authority or delegatee as provided above or his delegatee as provided
above, to be decided by the officer notified by the state government under Section 27
(2) and (3) of the Act, before it is brought before the Court of law.
About formation of RWAs :-
(1) After the enforcement of the UP Apartment Act, 2010 no builder, promoter can
resist/ or delay the formation of association of apartment owners under Section 14 of
the Act.
(2) If the promoter does not get the association registered, the apartment owners can
get it registered after a notice giving some time to the promoter and adopt model
bylaws. In this case the registrar of societies shall not refuse the registration of the
association of the apartment owners.
(3) The promoter, however, has to be made a member as he is jointly responsible with
the apartment owners to form an association. Even if he does not get the association
registered and does not join or his authorized agents subscribe to be members of the
association, he will be deemed to be member of the association for the purposes of
enforcement of the Act as the promoter being the member of the association has duties
and liabilities under the Act which he has to enforce.