S.1 Short title, extend and commencement

       (1) This Act may be called the Kerala Apartment Ownership Act, 1983.
       (2) It extends to the whole of the State of Kerala.
(3) It shall come into force on such date as the Government may, by notification in the Gazette, appoint; and different dates may be appointed for different areas in the State.

S.2 Application of the Act

       This Act applies only to property, the sole owner or all of the owners of which submit the same to the provisions of this Act by duly executing and registering a declaration as hereinafter provided:
Provided that no property shall be submitted to the provisions of this Act, unless it is mainly used, or proposed to be used, for residential purposes.

Legal Commentary on Section 2 of the Kerala Apartment Ownership Act, 1983

Introduction

Section 2 of the Kerala Apartment Ownership Act, 1983, provides the definitions crucial for interpreting the Act, especially concerning what constitutes an "apartment," "building," "common areas," and related terms. It lays the foundation for the legal framework governing individual ownership and undivided interests in multi-storeyed buildings in Kerala.

What does Section 2 Say

Section 2 primarily defines key terms:- Apartment: A part of a property intended for independent use, including various types of premises, with a direct exit to a street or common area, including garages or rooms.- Building: A structure containing five or more apartments or two or more buildings each with two or more apartments, forming part of the property.- Common areas and facilities: Parts of the property necessary or convenient for maintenance, safety, or normally in common use, including specified elements like lobbies, staircases, etc.- Declaration: An instrument to be executed and registered, containing details of land, building, apartments, common areas, undivided interests, etc.- Ownership rights: Each apartment owner is entitled to exclusive ownership of their apartment and undivided interest in common areas, subject to registration and declaration.

Essential Ingredients

• Definition of Apartment: Clear identification of independent units with provisions for exclusive ownership.
• Building criteria: Minimum number of apartments or buildings to qualify under the Act.
• Common areas and facilities: Must be specified in the declaration; includes parts necessary for maintenance and safety.
• Declaration and registration: Mandatory registration of declaration, amendments, and deeds to confer rights.
• Ownership and undivided interest: Rights are established based on percentage interests in common areas, which are heritable and transferable.
• Provision for amendments: Changes to bye-laws or interests require registration and approval.

Scope of Section 2

• Applicability: Applies to all apartments constructed for residential purposes, whether before or after the Act's enforcement, provided the property is submitted to the Act.
• Extent of ownership: Clarifies that owners have rights over their apartments and undivided interest in common areas, but ownership of land outside the footprint is generally retained by the developer unless transferred.
• Definition of building: Encompasses structures with specified minimum units, including multi-storeyed complexes.
• Legal framework for transfer: Establishes the importance of registered deeds and declarations for transfer of ownership rights.
• Distinction between ownership and user rights: Owners have rights of exclusive ownership in their apartments and a right of user in common facilities, not ownership of external land unless explicitly transferred.

Punishment for Violations

Section 2 does not specify penalties; violations of the Act’s provisions, such as unregistered declarations or deeds, typically attract penalties under other sections of the Act or related laws. Penalties may include fines, cancellation of illegal transfers, or other legal actions as per the general provisions of the Act and applicable laws.

Legal Comments

• Definition of Apartment - Establishes that an apartment includes any self-contained unit with independent use, ensuring clarity in ownership rights [Section 2(a)].
• Building criteria - Minimum of five apartments or two buildings with two apartments each to qualify under the Act, ensuring regulation of larger complexes [Section 2(b)].
• Common areas and facilities - Must be specified in the declaration; includes essential parts like staircases, lifts, yards, and other facilities necessary for maintenance and safety [Section 2(f)].
• Declaration requirement - Mandatory for establishing ownership rights; must include detailed land, building, and interest descriptions, and be registered under the Indian Registration Act [Section 11, 13].
• Ownership rights - Each owner has exclusive ownership of their apartment and undivided interest in common areas, with rights being heritable and transferable [Section 4, 5, 6].
• Undivided interest - Such interest is expressed as a percentage based on the value of the apartment relative to the entire property; it remains fixed unless amended with consent [Section 6].
• Registration of documents - Declarations, deeds, and amendments must be registered with the Registrar or competent authority for validity [Section 13].
• Amendments to bye-laws - Require filing and approval with the competent authority, typically the Registrar under the Societies Registration Act, to prevent arbitrary changes [Section 13(2), 13(4)].
• Ownership of common areas - The Act clarifies that ownership of land for community facilities remains with the developer unless explicitly transferred, and owners have only rights of user unless transferred [Section 3(f), 3(3)(a)(iv)].
• Legal recognition of rights - The Act affirms that ownership rights are heritable and transferable, but the percentage interests are fixed and cannot be altered unilaterally [Section 4, 6].
• Scope of application - The Act applies to all apartments intended for independent use, whether constructed before or after the Act’s enforcement, provided the property is submitted to the Act [Section 2].
• Ownership vs. user rights - Owners have heritable and transferable rights in their apartments and undivided interests in common areas, but ownership of external land or community facilities remains with the developer unless explicitly transferred [Section 3, 6, 11].
• Legal status of declarations and deeds - Must be executed and registered; non-registration affects enforceability but does not necessarily nullify ownership rights unless explicitly challenged [Section 13].
• Interpretation of "building" - Encompasses structures with minimum specified units, including multi-storeyed complexes, ensuring regulation of large developments [Section 2(b)].
• Limitations on amendments - Changes to interests or bye-laws require registration and consent, preventing arbitrary alterations [Section 6(2), 13(2)].
• Protection of property rights - The Act safeguards individual ownership rights, emphasizing registration and compliance to prevent disputes [Section 4, 6].

Summary Bullet Points

• "Apartment" - Part of a property for independent use, including garages, with direct street access - [Section 2(a)]
• "Building" - Structure with minimum five apartments or two buildings with two apartments each - [Section 2(b)]
• "Common areas and facilities" - Parts necessary for maintenance, safety, or in common use, to be specified in the declaration - [Section 2(f)]
• "Declaration" - Registered instrument detailing land, building, apartments, and interests - [Section 11, 13]
• "Ownership rights" - Each owner has exclusive ownership of their apartment and undivided interest in common areas, heritable and transferable - [Section 4, 5, 6]
• "Undivided interest" - Expressed as a fixed percentage based on value; cannot be altered unilaterally - [Section 6]
• "Registration" - Declarations, deeds, amendments must be registered with the Registrar or competent authority - [Section 13]
• "Amendments" - Require filing and approval; typically by Registrar under the Societies Registration Act - [Section 13(2), 13(4)]
• "Ownership of land" - Generally retained by the developer unless explicitly transferred; owners have rights of user - [Section 3(f), 3(3)(a)(iv)]
• "Applicability" - To all apartments for independent use, constructed before or after enforcement, with submission to the Act - [Section 2]
• "Legal enforceability" - Registration confers enforceable rights; non-registration affects legal validity but not necessarily ownership - [Section 13]
• "Limitations on amendments" - Require consent and registration to prevent arbitrary changes - [Section 6(2), 13(2)]
• "Protection of property rights" - Ensured through registration, declaration, and compliance with statutory provisions - [Section 4, 6]
• "Scope of "building"" - Structures with minimum units or floors as per the Act to regulate large complexes - [Section 2(b)]
• "Ownership vs. user rights" - Owners hold heritable rights; land outside footprint remains with developer unless transferred - [Section 3(f), 3(3)(a)(iv)]
• "Legal status of documents" - Declarations and deeds must be registered; enforceability depends on registration - [Section 13]
• "Protection against arbitrary amendments" - Changes require approval and registration, safeguarding owners' interests - [Section 6(2), 13(2)]
• "Application of law" - Extends to all apartments intended for independent use, whether constructed before or after the Act - [Section 2]

This comprehensive analysis underscores that Section 2 is fundamental in establishing the definitions and scope of rights, ownership, and obligations under the Kerala Apartment Ownership Act, 1983. It ensures clarity and legal certainty in the regulation of multi-storeyed residential complexes in Kerala.

S.3 Definitions

       In this Act, unless the context otherwise requires,-
       (a) "apartment" means a part of the property intended for any type of independent use, including one or more rooms or enclosed spaces located on one or more floors (or part or parts thereof) in a building, intended to be used for residential purposes and with a direct exit to a public street, road or highway or to a common area leading to such street, road or highway;
       (b) "apartment owner" means the person or persons owning an apartment and an undivided interest in the common areas and facilities in the percentage specified and established in the declaration;
       (c) "apartment number" means the number, letter or combination thereof designating the apartment in the declaration;
       (d) "Association of

S.4 Status of apartments

Each apartment, together with its undivided interest in the common areas and facilities appurtenant to such apartment shall, for all purposes, constitute heritable and transferable immovable property within the meaning of any law for the time being in force in the State, and accordingly, an apartment owner may transfer his apartment and the percentage of undivided interest in the common areas and facilities appurtenant to such apartment by way of sale, mortgage, lease, gift, exchange or in any other manner whatsoever in the same manner, to the same extent and subject to the same rights, privilages, obligations, liabilities, investigations, legal proceedings and remedies and to penalty, forfeiture and punishment as any other immovable property or make a bequest of the same under any law applicable to be transfer and succession of immovable property.

S.5 Ownership of apartment

       (1) Each apartment owner shall be entitled to the exclusive ownership and possession of his apartment.
(2) Each apartment owner shall execute a declaration that he submits his apartment to the provisions of this Act and a deed of apartment relation to his apartment in the manner prescribed for the purpose.

S.6 Common areas and facilities

       (1) Each apartment owner shall be entitled to an undivided interest in the common areas and facilities in the percentage expressed in the declaration.
       (2) The percentage referred to in sub-section (1) shall be computed by taking as basis the value of the apartment in relation to the value of the property: and such percentage shall reflect the limited common areas and facilities.
       (3) The percentage of the undivided interest of each apartment owner in the common areas and facilities as expressed in the declaration shall have a permanent character and shall not be altered without the consent of all of the apartment owners expressed in an ammended declaration duly executed and registered as provided in this Act.
       (4) The percentage of the undivided interest in the common areas and facilities sha

S.7 Compliance with, Covenants, Bye - laws and Administrative Provisions

Each apartment owner shall comply strictly with the bye-laws and with the Administrative Rules and regulations adopted pursuant thereto, and with the covenants, conditions and restrictions set forth in the declaration or in the deed to his apartment, and failure to comply with any of the same shall be a ground for an action to recover sums due, for damages or injunctive relief or both maintainable by the Secretary or Managing Committee on behalf of the Association of Apartment Owners or, in a proper case, by an aggrieved apartment owner.

S.8 Certain works prohibited

       No apartment owner shall, without the previous unanimous consent of all the other apartment owners,-
       (a) do any works which would-
       (i) jeopardise the soundness or safety of the property; or
       (ii) reduce the value of the property; or
       (iii) impair any easement or hereditament; or
(b) add any material structure to his apartment or excavate any additional basement or caller in the property.

S.9 Encumbrances against apartments removal from encumbrances, effect of part payment

       (1) Subsequent to recording the declaration as provided in this Act and while the property remains subject to this Act, no encumbrance of any nature shall arise or be effective against the property and during such period encumbrances may arise or be created only against each apartment and the percentage of undivided interest in the common areas and facilities appurtenant thereto, in the same manner and under the same conditions in every respect as encumbrance may arise or be created upon or against any other separate parcel of property subject to individual ownership:
       Provided that, if during such period, any encumbrance has arisen or been created against such apartment and the percentage of undivided interest in the common areas and facilities appurtenant thereto, no such apartments and such percentage of undivided interest shall be partitioned or sub-divided in interest:
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S.10 Common profits and expenses

The common profits of the property shall be distributed among, and the common expenses shall be charged to, the apartment owners according to the percentage of the undivided interest in the common areas and facilities.

S.11 Contents of Declaration

       (1) The declaration shall contain the following particulars, namely:
       (a) description of the land on which the building and improvements are, or to be, located: and whether the land is freehold or leasehold:
       (b) description of the building stating the number of storeys and basements, the number of apartments and the principal materials by which it is, or is to be, constructed;
       (c) the apartment number of each apartment and a statement of its location, approximate area, number of rooms and immediate common area to which it has access, and any other data necessary for its proper identification;
       (d) description of the common areas and facilities;
       (e) description of the limited common areas and facilities

S.12 Contents of Deeds of Apartments

       (1) Deeds of apartments shall include the following particulars namely:
       (a) description of the land as provided in section 11 or the post office address of the property, including in either case the liber, page and date of executing the declaration, the date and serial number of its registration under the Registration Act, 1908 (Central Act 16 of 1908), and the date and other references, if any, of its filing with the competent authority;
       (b) the apartment number of the apartment in the declaration and any other data necessary for its proper identification;
       (c) statement of the use for which the apartment is intended and restrictions on its use, if any;
       (d) the percentage of undivided interest appertaining to the apartment in the common areas an

S.13 Declarations, deeds of apartments and copies of floor plans to be registered

       (1) The declaration and all amendments thereto the deed of apartment in respect of each apartment and the floor plans of the buildings referred to in sub-section (2) shall be registered under the Registration Act, 1908 (Central Act 16 of 1908.).
       (2) Simultaneously with the registration of the declaration, there shall be filed along with it a set of the floor plans of the building showing the lay-out, location, apartment numbers and dimensions of the apartments, stating the name of the building or that it has no name, and bearing the verified statement of an architect certifying that it is an accurate copy of portions of the plans of the building as filed with and approved by the local authority within whose jurisdiction the building is located.
       (3) If the plans referred to in sub-section (2) do not include a verified statement of an ar

Legal Commentary on Section 13 of the Kerala Apartment Ownership Act, 1983

Introduction

The Kerala Apartment Ownership Act, 1983, was enacted to facilitate the ownership of individual apartments within a building, ensuring that owners have clear rights and responsibilities regarding their properties. Section 13 specifically addresses the registration of declarations, deeds, and floor plans related to apartments, which is crucial for establishing legal ownership and rights.

What does Section 13 Say?

Section 13 mandates that the declaration and all amendments, along with the deed of apartment and copies of floor plans, must be registered with the appropriate authority. This registration is essential for the legal recognition of ownership and the rights associated with the apartment.

Essential Ingredients

• Registration Requirement: Declarations, deeds, and floor plans must be registered.
• Amendments: Any amendments to the original declaration must also be registered.
• Authority: The registration must be done with the designated authority as per the Act.

Scope of Section

The scope of Section 13 extends to all apartments within the state of Kerala, ensuring that all apartment owners have their ownership rights formally recognized through registration. This section aims to provide clarity and security to apartment owners regarding their property rights.

Punishment for Section

While the specific punitive measures for non-compliance with Section 13 are not detailed in the provided sources, the failure to register the necessary documents could lead to legal disputes regarding ownership and rights.

Legal Comments

• Registration Importance - The registration of declarations and deeds is fundamental for establishing ownership rights of apartment owners. - [ "J. K. PEARL APARTMENT OWNERS ASSOCIATION VS STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM"]
• Amendments Registration - All amendments to the original declaration must also be registered to maintain the integrity of ownership records. -
• Form C Requirement - The book and index for registrations must be maintained in Form C as specified in the Act. -
• Common Areas - Each apartment owner has an undivided interest in the common areas and facilities, which must be clearly defined in the registered documents. -
• Legal Recognition - The registration process provides legal recognition to the ownership of apartments, which is crucial for resolving disputes. -
• Government Obligation - The government is required to provide registers to the sub-registrar within three months, ensuring timely registration. - [ "J. K. PEARL APARTMENT OWNERS ASSOCIATION VS STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENUE DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM"]
• Exclusive Ownership - Each apartment owner is entitled to exclusive ownership and possession of their apartment, as outlined in the Act. -
• Residential Use Requirement - Properties must primarily be used for residential purposes to be governed under this Act. -
• Legal Framework - The Act provides a comprehensive legal framework for the ownership and management of apartments, enhancing transparency. -
• Dispute Resolution - Proper registration under Section 13 aids in the resolution of disputes among apartment owners regarding ownership and rights. -
• Impact on Property Transactions - The requirement for registration impacts property transactions, as unregistered properties may face legal challenges. -
• Rights of Apartment Owners - The Act ensures that the rights of apartment owners are protected through formal documentation and registration. -
• Compliance Requirement - Compliance with Section 13 is essential for the legal standing of apartment ownership in Kerala. -
• Public Record - The registration creates a public record of ownership, which is vital for future transactions and legal clarity. -
• Role of Sub-Registrar - The sub-registrar plays a crucial role in the registration process, ensuring that all documents are properly filed and maintained. -
• Legal Consequences - Failure to register can lead to legal consequences, including challenges to ownership claims. -
• Transparency in Ownership - The registration process enhances transparency in apartment ownership, benefiting both owners and potential buyers. -
• Statutory Compliance - The Act emphasizes the importance of statutory compliance in the management of apartment ownership. -
• Protection of Interests - Section 13 serves to protect the interests of apartment owners by formalizing their ownership rights. -
• Framework for Amendments - The provision for registering amendments allows for the dynamic management of ownership rights as circumstances change. -

S.14 Exclusion from provisions of Act

       (1) All the apartment owners may exclude a property from the provisions of this Act by an instrument to that effect duly executed:
       Provided that the holders of all charges and other encumbrances affecting any of the apartments consent thereto or agree, in either case by instruments duly executed; that their charges or encumbrances be transferred to the percentage of the undivided interest of the apartment owner in the property as hereinafter provided.
(2) Upon the exclusion of the property from the provisions of this Act, the property shall be deemed to be owned in common by the apartment owners, and the undivided interest in the property owned in common which shall appertain to each apartment owner shall be the percentage of undivided interest previously owned by such owner in the common areas and facilities.

S.15 Exclusion no bar to subsequent resubmission of property to the Act

The exclusion provided or in section 14 shall in no way bar the subsequent resubmission of the property to the provisions of this Act.

S.16 Bye-laws

       (1) The administration of every property shall be governed by bye-laws, a true copy of which shall be annexed to the declaration.
       (2) No modification of, or amendment to, the bye-laws shall be valid, unless setforth in an amendment to the declaration, and such amendment is duly recorded, and a copy thereof is duly filed with the competent authority.
       (3) The bye-laws shall provide for the following matters namely:-
       (a) the election from among the apartment owners, of a Managing Committee and the number of persons constituting the same;
       (b) the term of office of the members of the Managing committee;
       (c) the powers and duties and the allowances to be paid to the members of the Managing Committee;
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S.17 Waiver of use of common areas and facilities

No apartment owner shall be entitled to exempt himself from liability for his contribution towards the common expenses by waiver of the use or enjoyment of any of the common areas and facilities, or by abandonment of his apartment.

S.18 Separate assessment

Notwithstanding anything to the contrary contained in any law relating to local authorities, each apartment and its percentage of undivided interest in the common areas and facilities appurtenant to such apartment (being an apartment submitted to the provisions of this Act) shall be deemed to be separate property for the purpose of assessment to tax on lands and buildings leviable under such law and shall be assessed and taxed accordingly; and for this purpose, a local authority shall make all suitable rules to carry out the provisions of this section.

S.19 Charge on property for common expenses

       All sums assessed by the Association of Apartment Owners but unpaid for the share of the common expenses chargeable to any apartment shall constitute a charge on such apartment and shall have priority over all other charges, except only-
       (i) charge, if any, on the apartment for payment of taxes due to the Government or a local authority; and
(ii) all sums unpaid on a first mortgage of the apartment

S.20 Joint and several liability of vendor for unpaid common expenses

       (1) On the sale of an apartment, the purchaser of the apartment shall be jointly and severally liable with the vendor for all unpaid assessment against the vendor for his share of the common expenses upto the time of the sale without prejudice to the purchaser's right to recover from the vendor the amount paid by the purchaser therefor.
(2) Any such purchaser shall be entitled to a statement from the Secretary or Managing Committee setting forth the amount of the unpaid assessment against the vendor, and such purchaser shall not be liable, for, nor shall the apartment sold, be subject to a charge for any unpaid share of the common expenses against such apartment accrued prior to such sale in excess of the amount therein setforth.

S.21 Insurance

       (1) The Secretary or Managing Committee if required by the declaration of the bye-laws or by a Majority of the apartment owners, or at the request of a mortgage having a first mortgage covering an apartment, shall have the authority to, and shall, obtain insurance for the property against loss or damage by fire, and such other hazards under such terms and for such amounts as shall be required, or requested.
       (2) Such insurance coverage shall be written on the property in the name of such Secretary or of the Managing Committee as trustee for each of the apartment owners in the percentages established in the declaration.
(3) Premium shall be common expenses and provisions for such insurance shall be without prejudice to the right of each apartment owner to insure his own apartment for his benefit.

S.22 Disposition of property, destruction or damage

       If within sixty days of the date of damage to, or destruction of, all or any part of the property, it is not decided by the Association of apartment owners to repair, reconstruct or rebuilt the property or part, as the case may be, then and in that event,-
       (a) the property shall be deemed to be owner in common by the apartment owners;
       (b) the undivided interest in the property owner in common which shall appertain to each apartment owner shall be the percentage of the undivided interest previously owned by such owner in the common areas and facilities;
       (c) any encumbrances affecting any of the apartments shall be deemed to be transferred in accordance with the existing priority to the percentage of the undivided interest of the apartment owner in the property as provided herein;
(d) the

S.23 Action

       (1) Without limiting the rights of any apartment owner, actions may be brought by the Secretary or Managing Committee, in either case in the discretion of the Managing Committee, on behalf of two or more of the apartment owners as their respective interest may appear, with respect to any cause of action relating to the common areas and facilities or more than one apartment.
(2) Service of process on two or more apartment owners in any action relating to the common areas and facilities or more than one apartment may be made on the person designated in the declaration to receive service of process.

S.24 Act to be binding on apartment owners, tenants, etc

       (1) All apartment owners, tenants of such owners, employees of such owners or tenants, or any other person who may in any manner use any property or any part thereof submitted to the provisions of this Act shall be subject to this Act and to the declaration and the bye-laws of the Association of Apartment Owners adopted pursuant to the provisions of this Act.
       (2) All agreements, decisions and determinations lawfully made by the Association of Apartment Owners in accordance with the voting percentages established under this Act, the declaration or the bye-laws, shall be deemed to be binding on all apartment owners.
       25. Power to make rules.- (1) The Government may, subject to the condition of previous publications, by notification in the Gazette, make rules for carrying into effect the provisions of this Act.
(2) Every rules made und

S.26 Application of Transfer of Property Act

For the removal of doubts, it is hereby declared that the provisions of the Transfer of Property Act, 1882 (Central Act 4 of 1882), shall in so far as they are not inconsistent with the provisions of this Act, apply to every apartment together with its undivided interest in the common areas and facilities appurtenant to such apartment, as those provisions apply in relation to any immovable property, and the provisions of this Act shall take effect notwithstanding anything to the contrary contained in any contract.

S.27 Power to remove difficulties

       (1) If any difficulty arises in giving effect to the provisions of this Act, the Government may, as occasion may require, by order, do anything not inconsistent with the provisions of the Act which appear to them necessary or proper for the purpose of removing the difficulty.
       (2) Every order issued under sub-section (1) shall be laid, as soon as may be after it is issued before the Legislative Assembly while it is in session for a total period of fourteen days which may be comprised in one session or in two successive sessions, and if, before the expiry of the session in which it is so laid or the session immediately following, the Legislative Assembly makes any modifications in the order or decides that the order should not be issued, the order shall thereafter have effect only in such modified form or be of no effect, as the case may be; so however that any such modification or