Renting out a flat in a housing society: what bye-law 43 lets the committee ask, and what it cannot

A member tells the secretary she is moving abroad for two years and wants to let out her flat. The secretary reaches for the file of committee resolutions from the last such request, unsure whether the society's "permission" is actually needed, or whether the file exists only because a past committee assumed it was.

Bye-law 43 answers this directly, and the answer surprises most committees: no permission of the society is required to sublet the flat, or to give it on a leave-and-licence or care-taker basis. What bye-law 43(2) requires instead is intimation — written notice to the society at least 8 days before the arrangement begins.

The marginal headings of bye-law 43 still read the other way — "Sub-letting etc. not permissible except under the Society's permission", and "Application for permission to sub-let etc" over sub-clause (2). The operative words of 43(2) prevail over a heading, but a committee should expect the heading to be quoted at it.

What the society may ask for

Bye-law 43(1) sets out exactly what the member must hand over, and it is a short, fixed list:

• •Written intimation to the society that the flat is being sublet, given on leave-and-licence basis, kept on a care-taker basis, or parted with in any other manner.
• •A copy of the leave-and-licence agreement.
• •A copy of the intimation report to the police station. Bye-law 43(1) requires a copy of the report, not an acknowledgement from the police; and note that the Marathi text of bye-law 43(अ) reads the other way — that the member files the agreement and the letter given to the society at the police station. A committee should ask for the copy and not build a requirement on either reading.

Bye-law 43(2) adds the timing: this intimation must reach the society 8 days before the subletting or leave-and-licence arrangement starts, not after the tenant has already moved in.

Separately, bye-law 20 lets the licensee, sub-lettee, care-taker or occupant apply — through the member, not directly — for admission as a Nominal Member, on the prescribed form and a Rs. 100 entrance fee. This is an option available to the occupant, not a condition the society may impose on the member as a precondition to letting the flat out; bye-law 20 says the Committee "may" admit such a person, which is a discretion about nominal membership, not a licence requirement. Once admitted, a nominal member has no membership rights beyond that status (bye-law 26), and bye-law 141 requires the society to maintain a "Register of Nominal Members (Tenant occupant)" as one of its statutory records — the natural place for the committee to log a tenant's particulars once the intimation is on file.

What the society may not refuse

Because bye-law 43(2) states in plain terms that no permission is required, a committee has no bye-law basis to:

• •Withhold consent to the letting, or make the tenant's move-in conditional on a committee resolution.
• •Treat the 8-day intimation as an application it can approve or reject. It is a notice, not a request.
• •Insist on a No-Objection Certificate before the tenant occupies the flat. The bye-laws use that phrase in a different context — share transfers under bye-law 38 — and do not attach it to subletting or leave-and-licence arrangements at all.

What the committee can legitimately do is check that the three items above have actually been furnished, and that the 8-day window was observed. If the police-intimation copy is missing, or the agreement was never furnished, that is a real gap the secretary should flag in writing to the member — not by refusing the tenant entry, which bye-law 43 gives no power to do.

Non-occupancy charges follow separately

Letting out a flat has a financial consequence distinct from the intimation requirement: Rule 106C-12(3) fixes non-occupancy charges at 10% of the service charges, payable when the flat is not occupied by the member or the member's family. This is a charge on the member, calculated as a fixed percentage of service charges — not a sum the committee may set at its own rate, and not a charge that applies where a family member continues to live in the flat even though the member does not.

What your committee should do

1. 1On receipt of the member's written intimation, check the date against the proposed start of the tenancy — it must be at least 8 days ahead, per bye-law 43(2).
2. 2Confirm the two enclosures: the copy of the leave-and-licence agreement, and the copy of the police-station intimation report, as bye-law 43(1) requires.
3. 3Do not pass a resolution "granting permission." Record the intimation as received in the minutes; that is the extent of the committee's role under bye-law 43.
4. 4If the tenant or occupant wishes to be a Nominal Member, route that as a separate application through the member under bye-law 20, with the Rs. 100 fee, for the Committee to decide on its own merits.
5. 5Enter the tenant's particulars in the Register of Nominal Members (Tenant occupant) maintained under bye-law 141, once nominal membership is granted. For an occupant who does not seek nominal membership the bye-laws prescribe no register entry; a committee may keep its own note, but not under bye-law 141.
6. 6Apply non-occupancy charges at 10% of service charges from the period the flat ceases to be occupied by the member's family, under Rule 106C-12(3) — not before, and not at a higher rate fixed informally by the committee.

The honest limit

The bye-laws are silent on what happens if a member simply never sends the intimation. The one consequence the bye-laws do attach is personal and indirect: bye-law 117(f) disqualifies a member from being elected or co-opted to the Committee if he has sublet or given the flat on leave and licence "without previous permission in writing" — a provision that plainly assumes a permission requirement bye-law 43(2) then removes. Bye-law 30 uses the same assumption. Bye-law 43 itself still gives the committee no power to evict, fine, or refuse recognition of the tenant. A committee facing a member who has not complied should address it as a bye-law compliance issue with that member directly — the register and the intimation are what the bye-laws provide for; anything beyond that is not found in bye-law 43 and should not be asserted as if it were.