The Kerala Apartment Ownership Act, 1983: what it means for your association

If you sit on the committee of a flat complex in Kochi, Thiruvananthapuram, Kozhikode or Thrissur, there is a short statute that sits underneath almost every question you will be asked: who pays how much, what happens when someone does not, and whether the bye-laws you adopted can be changed by a show of hands. It is the Kerala Apartment Ownership Act, 1983 (Act 5 of 1984), and it runs to just 27 sections.

This guide walks through the parts a committee uses most, quoting the Act's own words. Readers of our Karnataka recovery guide will find the vocabulary familiar, but each state's Act must be read on its own terms (see also the Tamil Nadu Apartment Ownership Act guide). One note on sourcing: we read the text published by PRS Legislative Research, which says its copy may not include later amendments. Check the current text with a Kerala advocate before relying on any section for a dispute.

The Act only applies if your building was submitted to it

This is the point most people miss. Section 2 says the 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". The proviso adds that property cannot be submitted "unless it is mainly used, or proposed to be used, for residential purposes".

So the Act is not automatic for every flat in Kerala. A building is governed by it once a declaration has been executed and registered. If your complex was built by a promoter who never did this, or you cannot find the declaration, that is the first thing to establish. Ask your promoter, check the sub-registrar records, and ask an advocate what that means for your association.

The documents that define your building

Three documents carry most of the weight:

• The declaration. Section 11 lists what it must contain: a description of the land and building, each apartment's number and location, the common areas, any limited common areas, the value of each apartment, "the percentage of undivided interest in the common areas and facilities appertaining to each apartment and its owner for all purposes, including voting", the permitted use of the building, and how the declaration can be amended.
• The deed of apartment. Section 12 requires each owner's deed to state the apartment number, its intended use, and the percentage of undivided interest.
• The bye-laws. Section 16(1) says the administration of every property "shall be governed by bye-laws, a true copy of which shall be annexed to the declaration".

Section 13(1) requires the declaration, all amendments, each deed of apartment and the floor plans to be registered under the Registration Act, 1908. Section 11(2) also requires a true copy of the declaration, bye-laws and amendments to be filed with the competent authority, which section 3(j) defines as the Housing Commissioner for Kerala State Housing Board buildings and otherwise a person the Government authorises by notification. Section 13(8) deems any buyer to have notice of the declaration and deed from the date of registration.

Your share is a percentage, not a flat rate

Section 6(1) gives each owner "an undivided interest in the common areas and facilities in the percentage expressed in the declaration". Section 6(2) says the percentage is computed on "the value of the apartment in relation to the value of the property".

Section 10 then ties money to that percentage: "the common expenses shall be charged to, the apartment owners according to the percentage of the undivided interest in the common areas and facilities."

In plain terms, the default basis for sharing common expenses is the percentage in your declaration, not an equal split per flat. A committee that bills every flat the same amount when the declaration gives a penthouse a larger percentage is departing from the Act's default, so check what your declaration says before you set a rate. Section 3(h) defines common expenses widely: sums lawfully assessed by the association, the cost of administering, maintaining, repairing or replacing common areas, and expenses agreed upon or declared as common expenses by the Act, the declaration or the bye-laws.

Section 6(3) adds that the percentage "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". It cannot be changed by a majority vote at an AGM.

What the bye-laws must cover

Kerala's Act does not hand you a model set of bye-laws with fixed AGM notice periods or quorum numbers. Instead, section 16(3) lists what your bye-laws must provide for, including:

• election of a Managing Committee, its size, term, powers and removal;
• election of a Secretary, a President and a Treasurer;
• the procedure for convening and conducting owners' meetings;
• maintenance and repair of common areas, and how each owner's share of common expenses is collected;
• the terms of employees who maintain the common areas;
• how administrative rules are adopted and amended; and
• "the percentage of the votes required to amend the bye-laws".

Section 16(4)(c) lets the bye-laws also cover audit, accounts, annual and special general meetings and the annual report. So audit and AGM mechanics come from your own registered bye-laws. Read yours: the notice period, quorum and audit duties are whatever they say.

Section 16(2) matters for any amendment: "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." A resolution passed at a general body meeting is not enough on its own.

The "majority" that section 3(q) refers to is owners holding "fiftyone per cent or more of the votes in accordance with the percentages, assigned in the declaration", which is again a vote weighted by the percentages, not a headcount.

When owners do not pay

Section 19 is the committee's strongest tool. Unpaid sums assessed by the association "shall constitute a charge on such apartment and shall have priority over all other charges, except only" two things: charges for taxes due to the Government or a local authority, and "all sums unpaid on a first mortgage of the apartment".

That exception list is worth noting. The dues are a charge on the flat, but a lender's first mortgage ranks ahead of them. Section 17 closes off a common excuse: no owner can exempt themselves from common expenses "by waiver of the use or enjoyment of any of the common areas and facilities, or by abandonment of his apartment". Not using the lift or the clubhouse does not reduce the bill.

Section 7 adds that failing to comply with the bye-laws is a ground for "an action to recover sums due, for damages or injunctive relief or both", brought by the Secretary or Managing Committee on the association's behalf.

The Act does not set out a tailor-made recovery procedure. Before filing anything, send formal notice, keep a clean ledger, and take advice from a Kerala advocate about the right forum for your claim.

Selling a flat: the buyer inherits the dues

Section 20(1) says that on a sale, the purchaser "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 buyer's right to recover from the seller.

Section 20(2) is the protection: the buyer is entitled to a written statement from the Secretary or Managing Committee setting out the unpaid amount, and the buyer is not liable, and the flat is not subject to a charge, for any more than that stated amount. This is the statutory basis of the "no-dues certificate", discussed in our guide to buying a flat with unpaid society dues. For committees, the lesson is practical: issue the statement promptly and make it accurate. An over-stated figure invites a dispute; an under-stated one may cap what you can recover.

Other provisions committees run into

• Structural changes. Section 8 bars an owner from works that jeopardise soundness or safety, reduce the property's value, or impair an easement, and from adding "any material structure" or excavating an additional basement, without "the previous unanimous consent of all the other apartment owners". This is consent of all, not a majority.
• Separate property tax. Section 18 treats each apartment and its share of the common areas as separate property for assessment to tax on land and buildings.
• Binding on tenants. Section 24 makes the Act, the declaration and the bye-laws binding on tenants and anyone else using the property.

Keeping the records that make all this work

Nearly every provision above depends on paper: a registered declaration, a percentage per flat, a ledger that proves what an owner owes, and minutes of each decision. Keep those safe, and keep them in a form the next committee can find. Our records and registers checklist lists what to hold. If maintenance bills are still raised by hand, Societly's maintenance billing auto-generates invoices, so a no-dues statement is a look-up rather than a reconstruction.

Common questions

Does the Kerala Apartment Ownership Act apply to every flat in Kerala?

No. Section 2 says it applies only to property whose owners submit it to the Act by executing and registering a declaration, and only if the property is mainly used or proposed to be used for residential purposes.

How should maintenance be split in a Kerala apartment complex?

Section 10 says common expenses are charged to owners according to the percentage of undivided interest in the common areas, as set out in the declaration. The default is not an equal amount per flat.

Can the committee change an owner's percentage by a majority vote?

No. Section 6(3) says the percentage is permanent and cannot be altered without the consent of all apartment owners, in an amended declaration that is executed and registered.

Do unpaid maintenance dues become a charge on the flat in Kerala?

Yes. Section 19 makes unpaid sums assessed by the association a charge on the apartment, with priority over other charges except government or local authority taxes and sums unpaid on a first mortgage.

Is a buyer responsible for the seller's unpaid dues in Kerala?

Under section 20, the buyer is jointly and severally liable with the seller for unpaid common expenses up to the sale, but only up to the amount stated in the written statement the buyer is entitled to request from the Secretary or Managing Committee.

Can bye-laws be amended by a general body resolution alone?

Under section 16(2), an amendment is not valid unless it is set out in an amendment to the declaration, duly recorded, with a copy filed with the competent authority.

This article explains the statute and is not legal advice. For a dispute, recovery action or amendment, consult an advocate practising in Kerala.

Sources

• The Kerala Apartment Ownership Act, 1983 (Act 5 of 1984), text published by PRS Legislative Research
• The Kerala Apartment Ownership Act, 1983, India Code record