RWA and Maintenance Disputes in Apartments

Who decides the maintenance charges in an apartment complex?

It depends on who is running the complex today. In a new project, the builder or a maintenance agency appointed by the builder usually runs it until the residents' association takes over. In that phase the builder sets the charges, but it is bound by the builder buyer agreement, the maintenance agreement you signed at possession, and RERA's requirement that charges be reasonable.

Once the association takes over, the charges are fixed by its general body or managing committee as the bye-laws provide. In a Delhi cooperative group housing society, the bye-laws approved by the Registrar of Cooperative Societies govern. In a registered society, such as many RWAs in DDA flats and colonies, the memorandum and rules filed with the Registrar of Societies govern. In Noida, Greater Noida and Ghaziabad high-rises, the Apartment Owners Association formed under the UP Apartment Act 2010 runs the building under its bye-laws.

So the first question in any maintenance fight is not whether the charge is fair. It is who had the power to fix it, and whether it was fixed by the procedure the bye-laws require. A charge passed by a general body with proper notice and quorum is hard to challenge on merits. A charge imposed by a committee without the general body's approval, where the bye-laws require approval, can be challenged on that ground alone.

Builder maintenance before handover: what does RERA say?

Section 11(4)(d) of RERA makes the promoter responsible for providing and maintaining essential services, on reasonable charges, until the association of allottees takes over maintenance. Section 11(4)(e) requires the promoter to enable the formation of an association within three months of a majority of allottees having booked, unless local law provides otherwise. Section 17 requires the promoter to hand over the common areas, and the documents and plans, to the association.

In practice the friction points are predictable. Builders charge maintenance from a date before a valid offer of possession, collect a year or two of maintenance in advance at possession, run the club and power backup at a margin, and delay the handover because the maintenance contract is profitable. Consumer commissions and RERA authorities have generally held that maintenance cannot be charged for a period before possession was validly offered with an occupation certificate.

Section 19(6) of RERA, on the other side, requires allottees to pay their share of maintenance charges, and section 19(9) requires them to take part in forming the association. Owners who refuse to pay anything to a builder until handover usually weaken their own position. The better course is to pay the undisputed part, record the objection in writing, and complain about the excess.

The laws that apply in Delhi, Noida, Ghaziabad and Gurugram

There is no single apartment law for the NCR. The right statute depends on the state and on how the association is registered.

Which forum for which maintenance dispute?

This is the table we use when an owner first comes in with a maintenance problem. The right forum saves months.

Can the RWA cut water, electricity or power backup for unpaid maintenance?

An RWA has no general legal power to cut water or electricity supply to a flat because maintenance is unpaid. Electricity supply is given by a distribution licensee under the Electricity Act 2003, and the power to disconnect for non-payment belongs to the licensee and relates to electricity dues, not society dues. Water is an essential service, and courts and commissions have repeatedly restrained societies from cutting it as a recovery tool.

The position is more nuanced in Noida and Greater Noida towers with a single point electricity connection, where the builder or AOA buys power in bulk and supplies flats through its own meters. Here the electricity regulator's rules on single point supply govern rates, billing and disconnection, and the UP regulator has issued directions against linking power supply to maintenance dues. Owners and committees should both check the current regulations before acting.

Amenities that are not essential services, such as power backup from the diesel generator, club use or gym access, are different. Many bye-laws allow these to be restricted for defaulters after notice, and courts have been slower to interfere. Even here, the restriction has to follow the bye-laws, apply equally to all defaulters, and come after written notice. A committee that switches off one member's backup because of a personal quarrel is inviting an injunction.

Can I refuse to pay maintenance if the services are poor?

Not safely. Withholding maintenance gives the association a clean claim against you, adds late fees and interest under the bye-laws, and can lead to restrictions on amenities and, in a cooperative society, to proceedings that affect your membership rights. Poor service is a reason to complain, ask for accounts and vote out the committee; it is rarely a legal defence to non-payment.

The workable approach is to pay under protest. Write to the committee stating which items you dispute and why, pay the amount with a covering letter saying it is paid under protest and without prejudice to your claim, and keep the receipts. If the dispute is about a specific charge, such as a special levy or a hike passed without a general body resolution, pay the regular charge and dispute only the contested part.

A point Advocate B.K. Singh often makes to owners in these disputes is that the paper trail decides the case far more than the merits. An owner who paid under protest, wrote dated letters and asked for the accounts in writing is in a strong position before any forum. An owner who simply stopped paying is answering a recovery claim instead of making one.

IFMS, sinking fund and corpus: how do you get the money from the builder?

Most NCR flat buyers paid an Interest Free Maintenance Security (IFMS) at possession, and many also paid a sinking fund or corpus contribution. This money is collected for the building's long-term upkeep, and it should pass to the association when maintenance is handed over, with an account of how much was collected and any deductions. Builders often hand over the building but keep the IFMS, or hand over a figure that does not match what owners paid.

The first step is to collect the receipts. The association should ask every owner for the IFMS receipt and build a register of what was paid, flat by flat. That register, compared with the builder's statement, shows the gap. A written demand to the builder with the register attached usually produces a counter-statement and a negotiation.

If the builder does not pay, the association can complain to the RERA authority as an association of allottees. In UP, the UP Apartment Act also allows the AOA to approach the competent authority, which can recover IFMS and sinking fund dues as arrears of land revenue and treat them as a charge on the promoter's unsold flats. Where the builder is under insolvency, the claim has to be filed in the insolvency process, as explained in our post on builder insolvency and homebuyers' options.

Disputes about RWA elections, accounts and the managing committee

Many maintenance disputes are really disputes about control: who sits on the committee, whether elections were held on time, and whether the accounts are honest. Every member is entitled under most bye-laws to inspect the accounts, the minutes and the audit report, and to ask for copies on payment of a fee. A written request that is refused or ignored is the starting point for any further step.

In a Delhi cooperative group housing society, the Registrar of Cooperative Societies can hold an inquiry, order an inspection of books, and in serious cases supersede the committee and appoint an administrator. Election disputes and disputes about the management of the society can go to arbitration under the Delhi Cooperative Societies Act. In a registered RWA in Delhi, the Registrar of Societies does not have comparable powers, so a member usually has to file a civil suit for a declaration and injunction, for example to restrain a committee whose term has expired from taking major decisions.

In Noida and Ghaziabad, AOAs registered under the UP framework face both the society registration authorities and the development authority, depending on the issue. Before suing, requisition a general body meeting under the bye-laws. A requisition signed by the required number of members often achieves what a suit would, and a court will in any case ask whether internal remedies were tried.

How to raise a maintenance dispute, step by step

This sequence works for most disputes, from a disputed hike to a refused handover. Skip steps only where something urgent, such as a cut water supply, needs a court at once.

1. Identify who runs the building and under which law

   Find out whether the builder, an AOA, a cooperative society or a registered RWA is in charge, and get a copy of the bye-laws or the maintenance agreement. This tells you who fixed the charge and which forum has power over it.

2. Put the dispute in writing

   Write to the committee or the builder, stating the charge you dispute, the reason, and what you want. Ask for the resolution under which the charge was fixed and the accounts for the period. Keep proof of delivery.

3. Pay the undisputed part under protest

   Pay the regular charge with a covering letter saying it is paid under protest. This avoids late fees and keeps the dispute about the contested item only.

4. Use the internal remedies

   Raise the issue at the general body meeting, or requisition a special meeting with the support of other members. Many disputes end here once the accounts are on the table.

5. Approach the regulator

   For builder issues, file before RERA or a consumer commission. For a Delhi cooperative society, apply to the Registrar of Cooperative Societies. In Noida and Ghaziabad, approach the competent authority under the UP Apartment Act.

6. Go to court if needed

   For cut essential services, illegal elections, or a committee acting beyond the bye-laws, a civil suit with an application for a temporary injunction under Order 39 rules 1 and 2 of the Code of Civil Procedure is the usual route. Send a legal notice first unless the matter is urgent.

Documents to gather before you complain

Can the RWA sue an owner for unpaid maintenance?

Yes. Unpaid maintenance is a debt owed to the association under the bye-laws or the maintenance agreement, and the association can recover it. A Delhi cooperative society can use the dispute and recovery procedures under the cooperative law. A registered RWA or AOA usually files a civil recovery suit, preceded by a legal notice, for the arrears with interest at the rate allowed by the bye-laws.

The limitation period for a money claim is generally three years, counted from each date on which a monthly charge fell due. So an association that waits too long may find the oldest arrears time-barred, while the recent ones remain recoverable. Our post on limitation periods for civil suits explains how this works.

Owners who receive a recovery notice should reply in writing with any genuine dispute, such as charges levied without authority or payments not credited. A defence based only on poor service rarely succeeds. Where the amount is small, a settlement at a mediation centre or a Lok Adalat is often the quickest end to it.

GST, late fees and interest on maintenance

Maintenance collected by an RWA from its members is exempt from GST up to ₹7,500 per month per member, and an RWA whose annual turnover is below the registration threshold does not need to register at all. Where the monthly charge exceeds ₹7,500, the CBIC's view is that GST applies to the whole amount, while the Madras High Court has held that only the excess over ₹7,500 is taxable. Check the current position with the association's tax adviser before you dispute a GST charge.

Late fees and interest on delayed maintenance must come from the bye-laws or a valid general body resolution. A committee cannot invent a penal rate. Very high rates, such as monthly compounding at rates far above bank interest, are open to challenge as a penalty rather than compensation. Ask for the resolution that fixed the rate before paying it.

Other common flashpoints: parking, pets, tenants and renovations

• Parking. Open and stilt parking spaces are generally common areas. Builders have sold them as separate units, and the Supreme Court has held, in a case under the Maharashtra flats law, that stilt parking forms part of the common areas. Allotment rules made by the association must be applied equally.
• Pets. Advisories of the Animal Welfare Board of India say societies cannot ban pets or charge discriminatory fees for them, though they can make reasonable rules on hygiene and the use of lifts. Rules that amount to a ban are open to challenge.
• Tenants. The owner remains liable to the association for maintenance even when the flat is let out, whatever the lease says between owner and tenant. Associations may require tenant details for security, but cannot charge arbitrary "tenant fees" not provided in the bye-laws.
• Renovations and structural changes. Changes that affect structure, façade or common areas usually need the association's consent and, in some cases, the development authority's approval. An association can seek an injunction against unauthorised structural work.
• Domestic staff and visitors. Associations can regulate entry for security, but blanket bans on particular groups of workers or visitors are difficult to justify.

When is a RERA or consumer complaint the right route?

When the dispute is with the builder. Overcharging of maintenance before handover, refusal to hand over common areas, IFMS and documents, non-formation of the association, and defects in common facilities within five years of possession are matters against the promoter. RERA is usually the more direct forum for handover and registration-linked issues, and our post on filing a RERA complaint in Delhi, UP and Haryana sets out the procedure.

A consumer commission can also hear a builder's deficiency in maintenance services, and individual owners sometimes prefer it for small money claims. Whether a member can file a consumer complaint against his own RWA or cooperative society is less settled, and commissions have taken different views depending on the facts. Where the society law gives a specific forum, use it. Our consumer court page explains the commissions in Delhi.

Misappropriation of society funds: when does it become a criminal matter?

When money entrusted to office-bearers is dishonestly used for their own benefit, it may be criminal breach of trust under section 316 of the Bharatiya Nyaya Sanhita, and falsified accounts may involve forgery. A complaint can go to the local police station, and for large sums in Delhi to the Economic Offences Wing. Our post on what to do after an FIR is registered covers the other side of that process.

Do not jump to a criminal complaint because accounts are untidy. Poor bookkeeping, unapproved but genuine expenses and late audits are management failures, not crimes, and a police complaint over them sours the society for years. Start with a written demand for accounts, a special audit or a Registrar's inquiry where available, and keep the criminal route for cases where there is evidence of money actually taken.

What to do this week

• Find out who runs your building and get the bye-laws or maintenance agreement.
• Collect your maintenance receipts, IFMS receipt and possession papers.
• Write to the committee or builder identifying the disputed charge and asking for the resolution and accounts.
• Pay the undisputed charge under protest instead of stopping payment.
• Talk to other owners; a requisition for a general body meeting needs a minimum number of signatures.
• If water or electricity has been cut, take photographs, note the date and time, and get legal advice the same day.
• Keep every reply, circular and notice in one file, in date order.

Getting help with a maintenance or RWA dispute

Most maintenance disputes end without litigation once the right authority is involved and the accounts are produced. A smaller number need a civil suit, an injunction or a RERA complaint, and it helps to know which kind yours is before spending money on it. For property and civil cases in the Delhi courts, see our civil and property lawyer page.

If you want an advocate to read your bye-laws, notices and receipts and tell you which forum fits, the team of Advocate B.K. Singh at B.K. Singh & Associates can look at the papers for an owner or for a committee. You can send them through the online enquiry page.