The Uttar Pradesh Apartment (Promotion of Construction, Ownership & Maintenance) Act 2010, popularly known as the UP Apartment Act, 2010 came into force on 21.07.2010. The fact that ownership and control of the material resources of the community must be distributed in such a way that it sub-serves a common good. Therefore, the objective of the Act was to confer an inheritable and transferable right to the apartment owners in an apartment including a proportionate and undivided share of the land and other common areas.

Applicability of the UP Apartment Act:

The Act extends to the whole of the state of Uttar Pradesh and is applicable on all such buildings in the state of Uttar Pradesh that have four or more apartments. The Act will be applicable on all such buildings even if the building is constructed on freehold land or leasehold land. It is also pertinent to highlight that if there are two or more buildings in any area and the same is designated as one block, in that case, if each of the independent buildings has two or more apartments and collectively all the buildings have four or more apartments, in that case, the UP Apartment Act shall be applicable on the same. However, the Apartment Act is not applicable on shopping malls or multiplexes in the state of Uttar Pradesh. Furthermore, an independent house with independent entry and exit shall not constitute a building and therefore, the Apartment Act is also not applicable on such houses.

The Act further provides that apartments can be utilized for any independent use including residential or official purposes, or for the purpose of practicing any profession, or for carrying on any occupation, trade or business (excluding shopping malls and multiplexes) or for such other use as may be prescribed. Such an apartment must have either a direct exit to a public street, or road or to a common area leading to such street, or road. The apartment can also include any garage or room, whether such garage/room is adjacent to the building or not. Such garage or room can be provided by the promoter to the homebuyer/allottee/apartment owner for using as parking or, as the case may be, for the residence of any domestic aide employed in such apartment;

Association of Apartment Owners [AOA] under the UP Apartment Act

The Act provides that there shall be an Association of Apartment Owners (also called AOA) for managing the affairs of the group housing society (Project). Association of Apartment Owners or Apartment Owners Association or AOA can be defined as a group of all the apartment owners in the project or group housing society, which are acting as a group in accordance with the bye-laws. The AOA is responsible for the administration of the affairs in relation to apartments and the property appertaining thereto and for the management of common areas and facilities. The UP Apartment Act makes it abundantly clear that prior to the formation of the AOA, the promoter/builder shall maintain the common areas and facilities and once the AOA is formed it shall collect maintenance charges from the apartment owners and maintain the common areas and facilities.

It is the joint responsibility of the promoter and the apartment owners to form the AOA and after the formation, the same has to be registered with the office of registrar, sub-registrar of societies, under the Societies Registration Act, 1860 as applicable in the state of Uttar Pradesh.  The AOA can be registered when 33% of apartments have been handed over to the owners by way of sale, transfer or possession provided. It was 60% as per the Amendment of 2016, though the amendment of 2016 has been repealed by the Uttar Pradesh government and the same never came to force. It is clear from this that the Association of Apartment Owners is recognized as the official body for administrating the affairs in a group housing project and for the management of common areas and facilities therein. But to have access to these powers and before taking handover of the common areas and facilities from the Promoter it is imperative that the AOA must also be registered.

Read here: How to form and register an Association of Apartment Owners in NOIDA and other parts of Uttar Pradesh?

On the formation of the Association of the Apartment Owners, the management of the affairs of the apartments regarding their common areas and facilities shall be deemed to be transferred from the promoter to the Association which shall thereupon maintain them, The definition of the Association of Apartment Owners or AOA makes it abundantly clear that the Apartment Owners Association or AOA in Uttar Pradesh has to act in accordance with the byelaws.

The Government of Uttar Pradesh has framed these model byelaws and the Association of Apartment Owners, at its first meeting, make its byelaws in accordance with the model byelaws so framed. The bye-laws adopted by the Association of Apartment Owners have to be exactly  a replica of the model byelaws framed the Uttar Pradesh Government and the Association of Apartment Owners cannot make any departure from, variation of, addition to, or omission from, the model byelaws. The model byelaws so framed provide for the manner of formation of AOA, the election and retirement of the Board of Management of the Association of Apartment Owners, the powers and duties of the Board; the method of removal from office of the members of the Board; also of the Board, tenure of the office bearers of board members among others.

Tenure of the board of the Apartment Owners’ Association under UP Apartment Act:

Among many things, the tenure of the members of the Apartment Owners Association or AOA has always been an issue in dispute. This is due to the fact that model bye-laws made by the UP government under the UP Apartment Act, 2010 contain two contrary provisions when it comes to the tenure of the board of management of the Apartment Owners Association. On one side the model byelaws state that the term of office of the Board of Management is one year. This means that elections to all ten posts in the Board of Management shall be held on an annual basis. However, on the other hand, it states that arrangements have to be made by the Board of Management for retiring 1/3rd of its members on an annual basis. Furthermore, there is a provision provided in the model byelaws that restricts the continuance of a person on the same post for more than two years.

These contrary provisions in the law gave some of the apartment owners loopholes to bypass the mandate of the law. It was observed in the state of Uttar Pradesh and especially in Noida, Ghaziabad, and Greater Noida that arrangements were made by the elected Board of Management of the AOA for retiring 1/3rd of its members on an annual basis, however, some members of the Board of Management continued to occupy the offices of President, Secretary and the treasurer in the Board without contesting annual elections for two years and there used to be no certainty when these members would face elections.

The position has now been made clear by the Hon’ble Allahabad High Court in the Writ Petition WRIT – C No. – 12380 of 2023 titled “Windsor Park Residents Welfare Association Vs. State Of U.P. And 4 Others” noted that “The system of elections adopted by the petitioner creates an entitled class which is entrenched in elected office but avoids electoral contest and abjures accountability of elected representatives. The legislature assiduously sought to curb this evil with the promulgation of the Apartment Act, 2010 read with Model Byelaws dated 16th November 2011 notified thereunder.” and further held that “Elections to the 10 posts in the Board of Management shall be held annually in future, and in light of this judgment and in accordance with the Apartment Act, 2010, read with Model Bye-Laws dated 16th November 2011 notified thereunder.”

This made the position law abundantly clear and paved a path for more democratic and transparent functioning of the apartment societies.