Dear Owners / Residents,
In the last few days you may be looking at mails which has been initiated by ... expressing their anguish on not being allowed to use their apartment for Airbnb Short term Rentals with series of baseless allegations. The Board has met and discussed on the legalities, restrictions in the Bye-laws and have also carried out a Risk Assessment of Safety and Regulatory implications. All the concerned people like Security, Person holding keys of ... were called and asked to state the facts.
The fact revealed by all is that the Security had informed the person holding the house keys ..., that hereafter temporary and unknown guests would not be allowed in the complex.
The person confirmed that there was no incidence of guests waiting outside as stated in Anand/Pratibha’s mails. The same person informed that the guests were already occupying the Apartment. The information was passed to ... by the person holding house keys which lead to .. calling up the Secretary at odd hours and using unprofessional language, followed by emails to Owners and Residents.
Their mails have several inconsistencies - they called the Secretary at 9.30 pm (verifiable through phone records), and the subject of their mail mentions incident @ 9pm, yet they mentioned in their email their guest was left outside at midnight. All this while the guest (for whom NOC was NOT issued) was staying comfortably in the flat. It is not clear why .... did not stick to the facts when writing to all the members.
Their mails have several inconsistencies - they called the Secretary at 9.30 pm (verifiable through phone records), and the subject of their mail mentions incident @ 9pm, yet they mentioned in their email their guest was left outside at midnight. All this while the guest (for whom NOC was NOT issued) was staying comfortably in the flat. It is not clear why .... did not stick to the facts when writing to all the members.
In order to be a fair to both, the Owners and the Association, the Board has forwarded the matter with details to the Statutory and Legal Authorities/Bodies who will soon investigate the commercial activity carried out at .. and assess the situation as required by the law.
While, the process is on, it was a coincidence to find Statutory Notice in the Newspapers warning for all those carrying out Commercial Activities in Residential Areas/Buildings (a copy of which is attached herewith.) While the notice is regarding shops it brings into focus a key issue is what was the basis on which the project was sanctioned and the occupancy certificate issued. In our case the Occupancy Certificate has been given with the caveat that it should not be used for commercial rental activities - guest house etc.
The Board’s intention is always to provide an amicable solution to any deviation, but at the same time is legally bound by the Statutory laws and Regulations.
Also, if we were to look at making the apartment a commercial complex then we believe that commercial rates will apply to all residents in terms of electricity, gas and any other service/taxes which could become a burden on all the other Owners irrespective of renting or residing in .....
The other point worth noting by Owners residing here is that even if a few Nonresidential Owners want to look at benefiting from the shared economy - do other Owners as residents want a free flow of strangers in this space where our family is? While we use Ola & Uber we have seen/read of several cases of unprofessional/criminal behaviour. Every person who gets into an Ola/Uber knows that there are risks associated with it which they are willing to undergo for the convenience. Whether other residents want to give free access to the complex for the benefit of other Owners is a question for the residential owners.
Even if the guests are not criminals if they are pleasant characters do we want them around especially if we are going to have a heavy turnover of guests in these apartments? If we are talking of 15 guests a month for 5 flats we are talking of 75 strangers roaming around our premises every single month.
We need the understanding of all Owners on following the Bye-laws and matters which has legal implications. We'd also like to state that for all the debate that we have over email this is not a matter that can be settled over email. It will require passing a resolution in the AGM, and prior notice if the bye laws are going to be amended and maybe further legal process if we should change the basis of the occupancy certificate.
The other point worth noting by Owners residing here is that even if a few Nonresidential Owners want to look at benefiting from the shared economy - do other Owners as residents want a free flow of strangers in this space where our family is? While we use Ola & Uber we have seen/read of several cases of unprofessional/criminal behaviour. Every person who gets into an Ola/Uber knows that there are risks associated with it which they are willing to undergo for the convenience. Whether other residents want to give free access to the complex for the benefit of other Owners is a question for the residential owners.
Even if the guests are not criminals if they are pleasant characters do we want them around especially if we are going to have a heavy turnover of guests in these apartments? If we are talking of 15 guests a month for 5 flats we are talking of 75 strangers roaming around our premises every single month.
We need the understanding of all Owners on following the Bye-laws and matters which has legal implications. We'd also like to state that for all the debate that we have over email this is not a matter that can be settled over email. It will require passing a resolution in the AGM, and prior notice if the bye laws are going to be amended and maybe further legal process if we should change the basis of the occupancy certificate.
We may add that "Under the circumstances stated above, and as the said commercial activity does not conform to the Bye laws, the Board has not given any approval / NoC, and therefore cannot be responsible for any risks or consequences associated there with, including those of statutory/legal nature, and the same therefore vests with the apartment owner"
Answering 2 of the owners’ queries:
1. Mr Balakrishnan V – The owners of Flat did notify or take an NoC before letting out their flat on Airbnb services.
For Board
Communicator
AND MY REPLY:
To the Representative of the Board,
Let me start with the answer provided by you to the query raised by me:
"Answering 2 of the owners’ queries:
1. Mr Balakrishnan V – The owners of Flat ... did notify or take an NoC before letting out their flat on Airbnb services.”
This is a serious violation by Ms. ... and she must tender an apology. Community leaving calls for certain tolerance to observance of guidelines, which I am sure a person living so far away from India may be accustomed to.
Another important aspect which we would expect from the intelligent, more tech savvy person and above all a person who is fully abreast with the current happenings at some of the most advance societies of the world, is to take the time out and educate us ordinary mortals on the pros and cons, legal implications and definitions in advance. Or they could have deputed their local Tax consultant to brief us. Such a confirmation / briefing would have armed our volunteers who are the Board members of our Maintenance association to be prepared, if they are confronted with questions by local statutory authorities, which I am sure is just around the corner as I believe the business for Ms. Prathibha Anand is booming.
AirBnB is a marketing platform and so is Uber and Ola. It facilitates the transaction between two parties. Absolutely correct. The transaction between AirBnB and the owner of the property takes place outside India, which is a transaction on the digital platform which we are not concerned about as nothing physical happens in the exchange.
Let us now switch to the Uber analogy: You hire the car through Uber, pay Uber and walk out. Now the Owner of the car hires the car to you through Uber, collects the money and the deal is completed. Now the owner of the car says to our Commercial Tax department that the transaction, that is hiring the car to you through the digital platform of Uber is not taxable. Well tax pundits across the world are at it and still grappling with the problem. The view I subscribe to is - There is a physical transaction between two parties for which the recipient of the service must pay service tax and other local taxes - And the provider must collect and pay those taxes to the government. The income is again assessable under the Income tax laws of India.
We can dispute my statement and seek remedy in our courts though.
Coming back to our case - AirBnB is a facilitator who insists that the Owner of the provider of service indemnify them from local tax liabilities, and other implications in toto. So throwing AirBnB at the board is to expect all of us to be naive, which I wouldn’t find fault with as those who are living 10000 Km away still think that we are land of Kings with elephants. There is a clear onus on the part of the owner to seek compliance of the rules of the association and if not take the liability that may befall the association and Owners.
My views on discontinuing the AirBnB service as proposed by the Board is different. I do not agree.
We must encourage use of the property and that is what the property is built for. As a first step Board may take a legal opinion on to whether they can permit this allowing “Guests” visiting and paying for it would not make the Century Celeste property a Hotel. ( In the land of Kings and Elephants, Guests don’t pay. They are treated like Gods).
If this is legally tenable, we must then put in place sufficient restrictions to ensure that this is done smoothly. My suggestions are:
1. One local caretaker will be appointed by the Owner sharing their flat through AirBnB service, whom the Board members may contact should the need arise.
2. The Board may insist that the Owners hire and pay for additional security service to coordinate the entry and exit of their Guests.
3. The board may need to have access to the data of persons who arrive and leave should something amiss where to happen during the stay of the Guests at Century Celeste.
4. And finally the Owner must indemnify the association, co owners of any liability that may be caused by this action of theirs.
And through this mail I appeal to Co-Owners of this wonderful property to be more tolerant and cooperate. Slowly the number of residents in this society moving to ‘Senior Citizens’ Category is increasing (me included) and we do not want trouble.
