Can a Co-Owner Vote in AOA Elections? Share Certificates and Voting Rights Under the UP Apartment Act
Every election season in group housing societies, the same question resurfaces: can a co-owner vote or contest in the Apartment Owners Association (AOA) election? Residents hold many conflicting opinions on this. This article sets out the legal position clearly, based on statute and Supreme Court precedent.
Who Is an Apartment Owner?
Section 8 of the U.P. Apartment Act defines an apartment owner as a person who owns the apartment. A person becomes the owner the moment they pay the last instalment due on the allotted apartment. Registration of the lease or sale deed does not decide ownership — payment does.
Can More Than One Person Own a Flat?
Yes. The law allows more than one person to own a flat. Where two or more people own a flat, each becomes an equal owner with an undivided interest. All owners hold equal rights. It makes no difference whose name appears first or last in the Builder-Buyer Agreement or the lease deed.
What Does the Supreme Court Say About Co-Ownership?
The Supreme Court settled this question in Sriram Pasricha v. Jagannath & Ors (24 August 1976), reported at 1976 AIR 2335, 1977 SCR (1) 395 (read the judgment). It held that a co-owner is not merely a part-owner or fractional owner of the property. A co-owner owns every part of the composite property along with the others.
“As a general rule a thing is owned by one person only at a time, but duplicate ownership is perfectly possible. Two or more persons may at the same time have ownership of the same thing vested in them. This may happen in several distinct ways, but the simplest and most obvious case is that of co-ownership. Partners, for example, are co-owners of the chattels which constitute their stock-in-trade of the lease of the premises on which their business is conducted, and of the debts owing to them by their customers. It is not correct to say that property owned by co-owners is divided between them, each of them owning a separate part. It is an undivided unity, which is vested at the same time in more than one person…… The several ownership of a part is a different thing from the co-ownership of the whole. So soon as each of two co-owners begins to own a part of the thing instead of the whole of it, the co-ownership has been dissolved into sole ownership by the process known as partition. Co-ownership involves the undivided integrity of what is owned.”
— Sriram Pasricha v. Jagannath & Ors, 1976 AIR 2335
The position changes only when partition actually takes place. Until then, every co-owner owns the whole, not a share of it.
How Did the Designarch Case Expand the Definition?
The Allahabad High Court stretched the definition further in the well-known Designarch case. The court included the owner’s spouse, children, and even a lawful tenant within the definition of an “apartment owner.” This holds even if their names don’t appear on the lease, sale, or handover deed.
The court likely intended this wide definition to allow maximum resident participation in the affairs of the group housing society, including its maintenance through the AOA.
Are All Co-Owners Automatically AOA Members?
Yes. Every person who purchases an apartment in a group housing society automatically becomes a member of the Apartment Owners Association. A single flat can therefore contribute more than one AOA member, depending on how many people own it.
Which Co-Owner Gets to Vote?
This is the crucial question. The Supreme Court has confirmed that any co-owner can cast a vote. But when a flat has multiple co-owners, only one of them can vote or contest an election for that flat. So how do you decide which one?
Is it the co-owner named first in the conveyance deed (the sale or sub-lease deed)? Or does some other document decide it? Lawmakers anticipated this exact conflict. Most states have framed Model Bye-laws to manage AOA affairs and minimise disputes like this one.
What Do the UP Apartment Act Model Bye-laws Say?
The U.P. Apartment Act 2010 Model Bye-laws address this directly. Bye-law 5 deals with Joint Apartment Owners:
“5. Joint Apartment Owners — Where apartment has been purchased jointly by two or more persons, they shall be jointly entitled to the apartment and the share certificates shall be issued in their joint names, but the person whose name stands first in the share alone have the right to vote.”
— Bye-law 5, Model Bye-laws under UP Apartment Act 2010
The right to vote depends on the share certificate, not the conveyance deed.
What Is a Share Certificate, and Who Issues It?
Neither the Act nor the Model Bye-laws define “share certificate” or set out a process for issuing one. But a basic principle of statutory interpretation holds that no provision of a statute can be left redundant. Bye-law 5 mentions share certificates for a reason — so someone must issue them.
That responsibility falls on the Board of the AOA. Every AOA should issue a share certificate to its members at the time of granting membership. The membership form itself should ask co-owners which of their names should appear first on the share certificate — regardless of the order of names on the sale or lease deed.
Once the AOA issues the share certificate, the co-owner named first on it becomes legally eligible to vote and to file candidature in AOA elections.
Key Takeaways
- Every co-owner holds an equal, undivided right in the property, regardless of whose name appears first or last on the title or conveyance deed.
- Every AOA in Uttar Pradesh must issue a share certificate to member co-owners at the time of membership.
- The membership form should ask co-owners to specify whose name goes first on the share certificate, independent of the conveyance deed.
- Co-owners can choose any one of themselves to be named first on the share certificate.
- The co-owner named first on the share certificate holds the right to vote and to contest board elections.
- Voting and candidature rights depend on the share certificate — not on whose name appears first on the registered conveyance deed.
Frequently Asked Questions
Can a co-owner vote in an AOA election?
Yes, but only one co-owner per flat can vote in any given election. The co-owner named first on the AOA’s share certificate holds that right, not necessarily the one named first on the sale or lease deed.
Does the order of names in the sale deed decide who votes?
No. Bye-law 5 of the Model Bye-laws under the UP Apartment Act ties voting rights to the share certificate issued by the AOA, not to the conveyance deed.
What is a share certificate under the UP Apartment Act?
It’s a document the AOA issues to co-owners at the time of granting membership, recording their joint ownership and naming which co-owner holds voting rights. The Act itself doesn’t define the term, but issuing it is the AOA Board’s responsibility.
Are a spouse or children considered apartment owners?
Under the Allahabad High Court’s ruling in the Designarch case, yes — the definition of “apartment owner” extends to the owner’s spouse, children, and even a lawful tenant, even where their names don’t appear on the deed.
Can co-owners choose which of their names goes first on the share certificate?
Yes. Co-owners can jointly decide whose name should appear first on the share certificate, independent of the order of names on the title deed.
What happens if an AOA hasn’t issued share certificates?
Since issuing share certificates is the Board’s statutory responsibility under Bye-law 5, an AOA that hasn’t issued them should do so before an election, using the membership form to record each flat’s chosen first-named co-owner.
Thanks a lot for the above post sir. However, can I have some material evidence HIGHLIGHTING the “co-owner” interpretation vis-a-vis voting rights and any such document which would entail equal rights for both the parties in the absence of shares for a builder apartment flat.
Thanks and Regards,
Ashis Panda
If the Deed is registered in the name of A Son in a Multistoried society then Son can authorized to a father to cast and contest in Resident Welfare Association election????
यदि डीड किसी बहुमंजिला सोसायटी में बेटे के नाम पर पंजीकृत है तो बेटा रेजिडेंट वेलफेयर एसोसिएशन के चुनाव में भाग लेने और लड़ने के लिए पिता को अधिकृत कर सकता है????
Very informative. This must serve as a justifiable interpretation for the model bye-law related to joint ownership. This provision is bone of contention in many RWA elections in UP.
I would like to know whether an owner who is leaving aboard can nominate a person to act on his behalf to potect his interests in the apartment complex. Whether such nominated person can join as a member of the Managing committee and can have voting power.
The Model Bylaws governing the functioning of an Apartment Owners Association has a specific Chapter on Voting, Quorum and Proxies.
Can you clarify :
(1) The definition of a Proxy,
(2) Role of a Proxy, if any, in Voting for
(a) the Election of members of the Board of
Management and,
(b) the resolutions in the meetings of the General
Body.
Proxy means authorization by the owner to any person to participate and vote in the meeting. It has to be the first agenda in any meeting.
Proxy can be used with previous permission of the General Body for voting which includes Voting for election of Board members as well as proposed resolutions.
But our Association of Apartment Owners, since it’s inception in 2014, has specifically prohibited the Owners from using any Proxy !
Is there any settled legal precedence which can be provided to the AOA in order to convince the AOA that its action in prohibiting the use of a Proxy is illegal ?
a person living in abroad can nominate his wife, son or daughter, But if no family member is residing in his apartment then one will have to issue power of attorney to someone for the purpose of membership, voting and contesting.
Does the POA have to be registered?in this case?
If the owner, co-owner and his son are living in the apartment, can the first owner give voting and contesting election rights to his daughter-in-law?
In my opinion when the co-owners are themselves living in the flat then giving voting & contesting right of concerned AOA to any other person is not valid. It would unjust and against the spirit of law.
Thanks for a well explained note on contentious issue of co-owner. Just one clarification, is the same justification applicable to Haryana State also as per the ” haryana apartment ownership act 1983″
indeed Mr. Rajeev. The Bye-laws of both states are almost same. The issue shall be resolved by the share certificate.
For the first election for formation of AOA, generally share certificate is not available. Under such circumstances, how to decide which owner/ co-owner has the right to cast vote.
During the first election of AOA, generally share certificate is not available more specifically when developer is not cooperative. Under such circumstances, how to decide which co-owner has the right to vote.
can share certificate issued once be changed? Like now first owner wants to give authority to the co-owener but the share certificate has the first owenr name in first place. Can one request AOA to issue another modified share certificate?
There is no legal bar on such modification.
Many societies have not issued share certificate. In absence of this is it not reasonable to allow only first person of joint owner ship to contest and vote
Many societies have not issued share certificate. In absence of this is it not reasonable to allow first person of sale deed
There are legal implications. One who contests election and become member of executive committee must have ownership of a house in society . Because he becomes trustee and has a fiduciary relationship with society. He handles finance. If he does not have direct stake in ownership if a house what and how society will recover dues? Wife or brother or children are separate legal entities. Their properties cant be attached. hence only a owner/First owner in mutation papers has legal liability.
Agree. Thank you for commenting.
During the first election of AOA, generally share certificate is not available more specifically when developer is not cooperative. Under such circumstances, how to decide which co-owner has the right to vote.
Such issue can be decided in the GBM called for passing of resolution to form the association.
Second owner can vote and participate in RWA elections by obtaining Power of Attorney from the first owner? What does the Law say?
Dear Mr. Khanna,
What will AoA rely on to assess whose name should be mentioned first on share certificate, ideally they would reply on ownership document only, else each AoA will follow different approach on their whims and fancy which I don’t believe is intent of law. It would be good to have your views on this
Share Certificate will include land share, common area share and voting share. Each of them are mentioned in the Deed of the Declaration as per section 12 of the U.P. Apartment (PCOM) Act 2010 r/w Rule 3 of UP Apartment (PCOM) Rules 2011 and Form A contained in the Rules 2011.
A co-owner is also a human being like the primary owner. They have an independent God given will to exercise a choice. It is very possible that even though the co-owners may be very compatible and in harmony with each other, they can have very differing views on any matter. Hence given a choice to vote on a matter with differing views, this archaic law of one vote per household is unfair. The correct way is to give proportionately equal voting powers to each co-owner. For e.g. a couple joint owners of a flat will have 1/2 vote each. 3 co-owners will have 1/3 vote each. This can be mathematically handled very easily to avoid fractions in the final vote count.
सरकार ने महिला प्रथम कोनर को स्टैम्प में छुट दी थी क्योंकि वह RWA के चुनाव में आगे आयेगी एक बार जब पोटर लिस्ट बन गई तो उसी में से चयन होना है बटवारा को ज्वाइट में हो गया तब राहर बराबर नहीं होते जब मेम्बर एक है तो वोटर लिस्ट में से Ec बनाना दै तो प्रथम ही चुनाव लड़ेगा भाडल बायलाज से यही अर्थ निकलता है।
Thanks for such a detailed explanation. One query here is can the name in share certificates be updated to change the second owner as the primary in the share certificate as he/she wants to contest elections. This can be done either by surrendering the old share certificate and getting the new share certificate by paying fees and a legal affidavit to current BOM. Is this possible?
In a BOM election, can a owner who has not deposited Rs 1000/- as membership fee be allowed to contest and vote? The article is very informative. I suggest if it is updated and FAQ (Frequently Asked Questions) are added, it will be more useful.