Recently there was a case in the Maharashtra Co-Operative Appellate Court where a housing society passed a resolution to evict a resident because his restaurant was creating noise pollution, and causing disturbances, especially for the school-going children who lived in the society. The court cancelled this eviction order and said that a housing society has no legal ground to evict a member. It can expel a member for not following its bye-laws but eviction comes under the respective state’s rent Act, and in this case, the society had no legal support.
Advocate Amitraj Kaushal, who practices in the Supreme Court of India, explains that if a housing society wants to take action against a member, their only real option is to expel them from membership. This process is quite strict and comes under Section 35 and Rules 28 and 29, and includes a hearing and a three-fourths majority at a general body meeting, and must be confirmed by the Registrar.
Kaushal says: “What a managing committee of a housing society cannot do is pass a resolution and simply order someone to vacate their own property. That is not eviction under co-operative law, that is something the law does not contemplate at all.”
Read on to know more about this.
If a housing society lawfully expels a resident from membership, must the resident vacate or sell the flat?
Before answering this question, you should know that a housing society membership and ownership of a property are governed by two different legal provisions and both of them can’t affect each other’s status.
Membership is a cooperative status; ownership is a property right. Losing the former does not automatically extinguish the latter.
Pooja Rao Putrevu, Founder of Annex Legal said to ET Wealth Online: “Losing membership merely refrains the resident from participating in community-related decision making, but it does not result in dispossession of his property.”
Being a member comes with responsibilities to obey and practice the rules and bye-laws of the society. However, being expelled from the membership does not allow the resident to act at will.
Putrevu says: “Although expelled, as a resident of the society, the rules and regulations are to be followed by principle.”
What can a housing society do if a member creates disturbance and defaults on maintenance fees or is an all-round nuisance?
At what a housing society can do is take some strong actions against a member for creating nuisance persistently, for serious disturbance or defaulting on maintenance fees, but the housing society cannot evict them by passing a committee resolution with majority votes.
Putrevu says that it is important to understand that the owner holds equal rights like the other residents. The housing society should have in place bye-laws applicable to all members, residents, shops within the society and must implement those strictly.
Can a housing society evict tenants for nuisance, disturbance or non-payment?
No, a society may complain about the nuisance, unlawful activities, misuse of premises or breach of society rules and may ask the owner to address the violation but can’t evict the tenant by passing a resolution.
Once a house is given on rent, the tenant becomes the possessor of the property, and shall have the same status as any other resident.
Putrevu says: “It is also important to understand the terms of tenancy agreed between the owner and tenant, if the owner has not reasonably briefed the tenant of the rules and bye-laws of the society, the owner may also be held partially responsible for the tenant’s actions.”
As a result, the housing society cannot physically evict a tenant on its own.
What rights does a housing society have regarding tenant eviction?
A housing society is responsible for regulation only and so it does not take actions like ordering eviction of tenants or the homeowner.
Compliance of bye-laws and rules can be implemented through member/owner. Putrevu says: “A housing society can enforce bye-laws concerning occupation, nuisance, common-area use, security, commercial activity and other aspects in the interest of the community.”
According to Putrevu, a housing society can report unlawful conduct to competent authorities, and initiate proceedings at the relevant authority. It may also take action against the member-owner for violations attributable to the tenancy. But a society ordinarily cannot declare a tenancy terminated or forcibly remove a tenant simply because residents object to the tenant.
Putrevu says: “The society’s legitimate interest is in protecting the community from unlawful conduct, not acquiring an independent power of eviction.”
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