By: Pune Pulse
November 29, 2023
Pune: Several citizens grapple with a critical issue plaguing both high-rise and low-rise buildings – leakages. This persistent problem not only endangers the structural integrity of buildings but also poses serious health risks to the residents.
The deteriorating metal rods, cement structures, and the development of unsightly, unhygienic conditions have created a hazardous zone for inhabitants.
Thus, a resident & secretary of a residential society in Pune has tried to explain all the legal solutions, what to do in case of leakages in residential flats, whom to approach & much more.
Understanding the experience of some impacted flat owners :
A resident of Hadapsar said, “The owner of the upper flat blames the issue on the builder’s work. When we complain to the society committee, they avoid responsibility and tell the lower flat to deal with the builder. The lower flat resident is left in a state of confusion between the builder, committee, and the flat above, receiving no response. The upper flat owner should share responsibility as the issue originates from their flat. They should also communicate, negotiate, and ensure timely repairs. However, only the lower flat resident complains, and the committee sees them as a chronic complainer. People fear the legal process time and costs, as well as damaging social relations with neighbours, the committee, and other residents, which makes the complainant appear like an outsider.”
A resident of Mundhwa said “The lower flat is grappling with leakage issues stemming from either a fault or negligence in the upper flat. The upper flat has been offering various excuses to delay repairs, potentially in an attempt to evade detection or expenses. These excuses range from claims of financial constraints, despite owning luxury items, to citing the presence of vulnerable residents at home. Additionally, they are unwilling to contribute to the expenses for detection and repairs, given their impending sale or rental of the flat. The upper flat owner has issued a threat of filing defamation and harassment cases against the society committee, even when receiving notices from the chairman in front of society members. These situations have caused significant stress in my life and that of my family members. We are losing valuable personal and professional time addressing this issue, despite it being the fault of the upper flat owner.”
A resident of Chinchwad said, “Living abroad for work, I’ve raised concerns with the CHS Committee about my rented flat. The occupant above me avoids responsibility, blames external issues, and insists it’s society’s concern. They accuse the committee of threats and disrespect, making the situation perplexing. In such cases, starting with minor repairs before major ones is common, just like trying medication before open-heart surgery. High-cost surgeries lack guarantees; expecting repair guarantees at lower costs is unreasonable. Unsure of the best course for the lower flat owner—any advice or suggestions? I don’t have an issue with anyone but my aim is to have a leakage-free home.”
Rights and legal remedies for citizens :
· Easement Rights (Indian Easement Act, 1882): The Indian Easement Act, of 1882, recognizes easement rights, which entail privileges or rights that property owners may have over neighbouring properties to ensure the comfortable enjoyment of their own property. If leakages from an upper flat result from a pre-existing easement right, such as a drainage system, you may have a legal right to expect proper maintenance.
· Private Nuisance Laws: In situations involving leakages, private nuisance laws come into play when the actions of an upper flat owner cause substantial and unreasonable interference with your right to enjoy your property. This includes issues like water leakage, structural damage, or health hazards. Under civil law, if the leakage causes substantial and unreasonable interference with the lower flat owner’s right to enjoy their property, it may be treated as a private nuisance. Remedies may include an injunction or damages.
· Health Hazard (nuisance causing bodily harm): If leakages lead to health hazards, you can emphasize this in your legal complaint. Nuisance causing bodily harm is a serious matter and can strengthen your legal case.
Whom can citizens approach to complain about the leakage issue?
· By-law No 172 – Complaint application to be submitted to the society member/members shall submit their complaint application to any of the office bearers of the society, in writing, giving thereby the details of the complaint.
· By law no 173 – After receipt of such, complaint application, the committee shall take a decision thereof, in the immediate next managing committee meeting. Such a decision shall be communicated to the concerned Member, within 15 days thereafter.
· By law no 174(A)(xxii) – If the society committee is not cooperating to the difficulties, citizens can approach the District Registrar.
· By-law No 174(D)(iv) – The same complaint can be addressed to the municipal corporation or local ward office.
· By-law No 174(E)(i) – The same complaint can be addressed to the police station.
The role of Housing Society Management Committee
· After completing construction, the builder had given possession of the building to the society and executed conveyance about the same in favour of the society. At that time society had verified the construction of the building made by the builder and after being satisfied with the construction had taken possession of the same. Hence, after the formation of the society, society has taken over possession of the building from the builder and society is liable with respect to the construction of the building and any deficiency arising out of the same.
· Before pursuing a civil suit, consider attempting mediation and resolution through the housing society or local dispute resolution mechanisms as specified in your society’s bylaws.
· Compliance with applicable laws: Ensure that the housing society complies with all relevant laws, including building codes, health and safety regulations, and environmental laws.
· The society may have provisions for resolving disputes related to leakage issues, including establishing a dispute resolution mechanism.
· The committee should enforce the bylaws, which may include rules for the prevention and resolution of leakage problems.
· Procedures should be in place to respond to leakage emergencies, providing immediate assistance and contacting relevant authorities if needed.
· If the flat owner does not take action within the specified timeframe, the housing society may discuss the matter at a general body meeting. The society’s members can decide whether to authorize the committee to proceed with forced repairs by passing a resolution.
· Once authorized, the housing society’s committee can hire contractors or take necessary actions to carry out the repair work. The expenses incurred are typically the responsibility of the flat owner, and they may be recovered through maintenance charges or a separate assessment.
· Before initiating force repairs, the housing society usually sends written notices to the flat owner or owners responsible for the leakage issue. The notice informs them of the problem, the required repairs, and a reasonable timeframe within which they must take action to address the issue themselves.
The role of Registrar of Co-operative Societies
Section 89A of the Maharashtra Cooperative Societies Act, 1960 may grant the registrar certain powers related to inspecting housing societies in cases of leakage and related issues.
Rules of the Municipal Corporation
· Health and building structure hazards related to leakage may fall under municipal laws and building regulations. Violations of these regulations may provide grounds for legal action.
· If the leakage is causing environmental harm or posing a health risk, relevant environmental laws may also apply.
Rules of Civil Court
· Court order for repairs (section 151, CPC): Seek an order directing the upper flat owner to repair the source of the leakage as part of the relief in your civil suit.
· Temporary Injunction (Order 39, CPC): If immediate relief is needed to halt damage or health hazards during ongoing legal proceedings, request a temporary injunction.
· Damages (Section 9, CPC): File a suit for compensation under Section 9 of the CPC for losses suffered due to leakage.
The looming threat of leakages in cities, and states not only imperil the structural integrity of buildings but also poses severe health risks to residents. As legal mechanisms, government rules, and authorities stand ready to assist impacted flat owners, seeking proper legal redressal without fear is pivotal. Adhering to these regulations and pursuing legal avenues is essential to curbing this growing hazard and securing the rights of affected residents.