There are three locks on this door, they are held by three different people, and an association that opens one has opened none of the others.
That last item is worth reading twice. Commercial facilities can be common areas, but only where the Declaration provided for them. A facility the Declaration described as a community hall does not become a commercial facility because a general body voted to let it out.
The first lock: the Declaration and the 1972 Act
Section 6(2) is the provision that decides most of these disputes. The percentage of the undivided interest of each apartment owner in the common areas as expressed in the Declaration shall have permanent character, and shall not be altered without the consent of all of the apartment owners expressed in an amended Declaration duly executed and registered. The undivided interest cannot be separated from the apartment and is deemed conveyed with it even if the conveyance does not mention it.
Section 6(3) then says the common areas and facilities shall remain undivided, that no apartment owner or any other person shall bring any action for partition or division of any part of them unless the property is removed from the Act, and that any covenant to the contrary shall be null and void. Section 6(4) confines each owner to using the common areas in accordance with the purpose for which they are intended, without hindering or encroaching on the rights of others. Section 8 prohibits any owner from adding any material structure or excavating without the unanimous consent of all the other owners. And Section 14 requires all the apartment owners to act together to remove the property from the Act at all.
The word running through every one of those provisions is all, not a majority. Section 3(n) does define a majority as owners holding fifty one per cent or more of the votes, but that definition governs the matters the Act and the bye-laws leave to a majority. Altering the character or the shares in the common areas is not one of them.
| Proposal | Consent required | Provision |
|---|---|---|
| Altering the percentage of undivided interest in the common areas | All owners, in an amended Declaration executed and registered | Section 6(2) |
| Partitioning or dividing off a part of the common areas | Not permitted at all while the property is under the Act | Section 6(3) |
| Adding a material structure or excavating | Unanimous consent of all the other owners | Section 8 |
| Removing the property from the Act | All owners, with the consent of every charge holder | Section 14 |
| Ordinary use, maintenance and repair of the common areas | As provided in the Act and the bye-laws | Sections 6(4) and 6(5) |
| Distributing income earned from the common areas | To all owners in proportion to the undivided interest | Section 10 |
The second lock: the plan and the bye-laws
A resolution cannot change what the building is sanctioned for. Section 239 of the Bruhat Bengaluru Mahanagara Palike Act, 2020 says no person shall construct any building or structure of a permanent nature, or execute work relating to the construction of a building including an addition, alteration or modification of an existing one, except in accordance with the building bye-laws and on the sanction of the corporation. Section 240 sets out how that sanction is obtained. Section 144(6) charges double property tax on a building constructed in violation of the bye-laws, and its proviso says the levy confers no right to regularise the violation and no title or legal status. So an unauthorised commercial conversion produces a permanent tax penalty and a permanent exposure.
The third lock: the land may not be the association's at all
In an approved layout, Section 17(2A) of the Karnataka Town and Country Planning Act, 1961 requires the owner to relinquish the roads and parks to the local authority and the civic amenity areas to the planning authority by registered deed, free of cost. Where the space the association has in mind is a relinquished civic amenity area, it does not belong to the owners collectively and no vote of theirs is relevant to it. That is the point at which several of these proposals quietly collapse once the layout file is read.
What can lawfully be done
- Read the registered Declaration, if one exists, and the statement under Section 11(1)(g) of the purposes for which the building and the apartments are intended and restricted as to use
- Read Section 11(1)(k), which records the method by which the Declaration may be amended, consistently with the Act
- Check whether the space is described in the Declaration as a community or commercial facility under Section 3(f)(7), or as a limited common area under Section 3(m)
- Check the sanctioned plan for the use to which that area is put and whether the zoning permits a commercial activity
- Check whether the space is a relinquished civic amenity area, in which case the planning authority owns it
- Keep any income in the common fund, since Section 10 requires common profits to be distributed according to the undivided interest and not applied at the committee's discretion
- Where the promoter is still in the picture, note that Section 14(2)(ii) of the 2016 Act bars him from altering the common areas without the written consent of at least two thirds of the allottees
Many Bengaluru buildings were never submitted to the 1972 Act at all, because no Declaration was executed and registered, and the association exists as a registered society instead. That does not improve the position. A society acts within its registered objects and bye-laws, and it still does not own the common areas, because each owner's undivided share came with his own conveyance. An owner who objects has a civil remedy, and the practical first step is an injunction restraining the work before it starts rather than a suit for restoration after it is done, which is why our note on temporary injunctions is the one to read early. The broader question of what an association may and may not charge is dealt with in the apartment association answer.