Can housing societies deny common facilities to smaller flats because of lower maintenance fees? Know what the law says

Recently a tenant from Bengaluru raised concerns that his housing society is denying him access to the gym and swimming pool because he pays a lower maintenance fee. He argued that since he paid the appropriate amount for maintenance based on the size of his apartment, he should be allowed to use the gym and pool facilities.

The tenant said that "big society does not allow 1 BHK residents to use the amenities but takes maintenance". He also claimed that his landlord told him that some residents had issues with 1BHK residents using the buildings' amenities, which led to the implementation of this new rule regarding smaller units.

Check out the info below to know what the law says.

Karnataka Apartment Ownership Act, 1972 says enjoyment of common facilities is not dependent on the amount of maintenance paid

Lakshmi Baradwaj H S, Partner at Apex Law Chambers, explained to ET Wealth Online that under the Karnataka Apartment Ownership Act, 1972, common areas and facilities including recreational amenities such as gyms, swimming pools, clubhouses and similar shared spaces form part of the common rights available to all apartment owners.

Baradwaj says: "While the Act recognises that each owner's undivided interest and maintenance contribution may be proportionate to the size of their apartment, the right to use and enjoy common facilities is not dependent on the quantum of maintenance paid."

Baradwaj also says that a housing society cannot deny or restrict access to common facilities merely because residents of smaller flats pay lower maintenance charges, as such a restriction would be discriminatory, contrary to the scheme and intent of the Act, and inconsistent with the principles of equality embodied under Article 14 of the Constitution of India.

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Dhruv Uthappa, Partner at Contriance Legal Solutions says that a blanket restriction on access to common amenities solely because a resident owns a smaller apartment would be difficult to justify.

According to Uthappa, under Section 6 of the Karnataka Apartment Ownership Act 1972, apartment owners hold an undivided interest in common areas and facilities in the percentage expressed in the Declaration. Common amenities are ordinarily intended for collective enjoyment by apartment owners.

Uthappa says: "While maintenance contributions may legitimately vary based on apartment size or undivided share, unequal financial contribution does not automatically translate into unequal access rights."

Uthappa also says that if amenities form part of the notified "common areas and facilities" under the Deed of Declaration, selective exclusion may be vulnerable to legal challenge.

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When the flat maintenance amount is calculated for the entire block including the common facilities, does it include any benefit for small flat persons?

Baradwaj says that maintenance charges collected by a housing society are intended to cover the upkeep, operation and maintenance of the entire apartment complex, including all common areas and facilities.

Baradwaj says: "Although owners of smaller flats contribute proportionately lower amounts based on the applicable maintenance formula, such contributions nevertheless entitle them to full and equal use and enjoyment of the common facilities maintained from those collections."

Accordingly, the benefits arising from maintenance cannot be segregated or restricted on the basis of flat size or the amount of contribution, and any such distinction is legally unsustainable.

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What action can the small flat residents take if they are prevented from using common amenities?

Aggrieved owners may first raise the issue before the Apartment Owners Association through a written representation and seek reconsideration before the General Body. If the restriction continues, they may initiate proceedings before the competent civil court seeking declaratory and injunctive reliefs against denial of access to common amenities.

Depending on the facts, Baradwaj says that residents may also approach the Consumer Commission for deficiency in services or arbitrary denial of promised facilities.

Baradwaj says: "In cases of patently discriminatory action contrary to the Karnataka Apartment Ownership Act, 1972, affected owners may also seek appropriate reliefs before the jurisdictional High Court."

Can small flat owners stop paying maintenance if denied access to common facilities?

Baradwaj says that under the Karnataka Apartment Ownership Act, 1972, apartment owners are obligated to contribute proportionately towards common expenses and maintenance of the property and its facilities. This obligation exists independently of disputes regarding access to amenities.

Accordingly, owners of smaller flats aren't legally permitted to withhold maintenance payments just because access to certain common facilities has been denied. Non-payment may expose them to penalties, interest, and recovery proceedings under the Association's bye-laws.

Baradwaj says: "The appropriate course would be to continue payments under protest while simultaneously pursuing legal remedies against the discriminatory restriction."

Are swimming pools, clubhouses, gyms and parks considered "common areas" under apartment laws?

Under the Karnataka Apartment Ownership Act, 1972, recreational amenities such as swimming pools, clubhouses, gyms, parks and other facilities intended for common use form part of the "common areas and facilities" of the apartment complex.

These amenities are ordinarily identified as common areas in the Deed of Declaration and related governing documents of the Association.

Baradwaj says: "Accordingly, all apartment owners are entitled to equal access and enjoyment of such facilities, subject only to reasonable and uniformly applicable regulations governing their use."