Housing societies cannot decide property ownership under the MCS Act.
By Dr. Danish Lambe
Senior Journalist and Property Rights Activist
Introduction
Property ownership and transfer within housing societies in Maharashtra often lead to confusion, particularly concerning the roles of the Maharashtra Ownership Flats Act, 1963 (MOFA) and the Maharashtra Cooperative Societies Act, 1960 (MCS Act). Many buyers, heirs, and even society management committees misinterpret these laws, assuming that cooperative societies hold the power to decide property ownership.
In reality, MOFA governs property ownership and transfer, while the MCS Act regulates society administration. The Maharashtra government cannot override central laws like the Transfer of Property Act and Indian Succession Act, making it essential for property owners and buyers to understand their rights.
This article clarifies the legal framework of property transfer and conveyance in housing societies, dispels common myths, and highlights how the MCS Act cannot override MOFA or Central Acts in ownership matters.
1. Understanding MOFA: Protecting Homebuyers & Ensuring Legal Ownership
The Maharashtra Ownership Flats Act, 1963 (MOFA) was enacted to regulate the sale, ownership, and transfer of flats in Maharashtra. It primarily protects homebuyers from exploitation by builders and ensures smooth property transactions.
Key Features of MOFA
✅ Mandatory Conveyance of Land & Building: Builders must transfer ownership of land and buildings to a housing society or association within four months after its formation.
✅ Protection from Builder Malpractices: Builders cannot retain ownership rights over the property after executing the conveyance deed.
✅ Transfer of Ownership by Flat Buyers: Once a flat is legally owned under MOFA, it can be transferred as per the Transfer of Property Act and Registration Act, without unnecessary intervention from the housing society.
✅ Deemed Conveyance: If a builder refuses to transfer ownership, society members can apply for a deemed conveyance to obtain legal ownership.
MOFA’s Impact on Property Transfer
MOFA ensures that once the builder transfers the property to a housing society, the society owns the land and common areas. However, MOFA does not allow the society to override legal ownership rights of individual flats.
2. Understanding Conveyance of Plot & Land: Why It Matters
Conveyance is the legal transfer of land and building ownership from the builder to the housing society. Without proper conveyance, a society does not legally own the land, leading to several risks.
Types of Conveyance:
- Regular Conveyance – The builder voluntarily transfers the land and building ownership to the society.
- Deemed Conveyance – If the builder fails to execute the conveyance, the society can apply for ownership through legal intervention under MOFA.
Why is Conveyance Important?
- Legal Ownership: Without conveyance, the land remains in the builder’s name, creating legal uncertainty.
- Redevelopment Rights: Societies without conveyance cannot redevelop the building legally.
- Loan & Mortgage Issues: Banks do not approve loans for societies without legal ownership of land.
- Risk of Builder Selling Land to Third Parties: If conveyance is not secured, the builder can sell the land, leaving society members without rights.
MOFA’s Role in Ensuring Proper Conveyance
- MOFA makes it mandatory for builders to execute conveyance within 4 months of forming the society.
- If the builder does not comply, members can apply for deemed conveyance through the District Deputy Registrar (DDR).
3. MCS Act: Governance of Housing Societies, Not Property Ownership
The Maharashtra Cooperative Societies Act, 1960 (MCS Act) governs the administration and functioning of cooperative societies, including housing societies. However, it does not determine ownership rights over a deceased member’s property or override MOFA or Central Laws.
Key Features of MCS Act
✅ Regulates Housing Societies: It manages membership rules, society operations, and internal governance.
✅ Membership Transfer Process: While the society can approve membership transfers, it cannot determine property ownership rights.
✅ Cannot Override Succession & Transfer Laws: The society cannot deny legal heirs their property rights under the Indian Succession Act and Transfer of Property Act.
4. MOFA vs. MCS Act: Who Has the Final Authority in Property Transfer & Conveyance?
| Factor | MOFA (1963) | MCS Act (1960) |
|---|---|---|
| Purpose | Regulates transfer of land & building from builders to societies | Regulates society administration, but does not deal with land ownership |
| Who Must Execute Conveyance? | The builder/developer must execute the conveyance deed in favor of the society | Society cannot claim ownership unless conveyance is done under MOFA |
| Time Limit for Conveyance | Builder must execute conveyance within 4 months of society formation | No time limit is provided under the MCS Act |
| What Happens If the Builder Fails? | Society can apply for Deemed Conveyance through the competent authority | Society cannot claim ownership just by society registration |
| Legal Authority Over Land Ownership | MOFA is the final authority on property conveyance | MCS Act does not override MOFA or property laws |
| Impact on Redevelopment | If conveyance is not done, society members cannot redevelop or sell common property legally | Society cannot proceed with redevelopment without proper conveyance |
5. Conclusion: MOFA Governs Property Ownership, MCS Act Governs Society Administration
To summarize:
- MOFA protects buyers’ rights and ensures legal property transfer from builders to societies and individuals.
- MCS Act only governs how societies manage their members but does not decide legal ownership.
- Without conveyance, societies do not legally own the land and building.
- MOFA prevails over the MCS Act in all matters of property transfer and ownership.
Final Advice:
If your society has not yet received conveyance from the builder, take action under MOFA for a Deemed Conveyance. Do not rely on the MCS Act or society resolutions—they do not grant legal ownership of land.
Secure your legal rights with a proper conveyance deed, or risk losing control over your property forever.
About the Author:
Dr. Danish Lambe is a Senior Journalist and Property Rights Activist specializing in real estate laws, cooperative housing societies, and consumer protection. He has actively worked on legal awareness campaigns, helping citizens understand their rights in property ownership and housing society matters.