Legal Aspects

Law and property (land) forms a very close relationship as the nature of property attracts lot of common interest and greed in its ambience. As property is scarce entity/asset which does not expand and has no exact shape and which is subjected to natural disaster, the right beneficiary (not owner) in the form of person or entity makes law application necessary and appropriate. It has to be implemented with right spirit and intention.

The land/property can be divided into different categories from legal aspects as follow

• Residential
• Commercial
• Industrial
• Agricultural
• Special purposes 

Land / Property has some features which should be considered in reference to legal aspects such as

• It is immovable
• It is irreplaceable
• No two property is the same – uniqueness
• It is permanent in comparative terms/ than buildings, trees and living beings
• It comprises not only land but space such as air and interior of ground beneath up to specified feet of that ‘land’
• No one or entity has divine right on the property
• Exchange of rights of property only is on conditional basis and for a period of time

According to the Transfer of Property Act (T.P.Act): It is the building which constitutes immovable property and machinery, if embedded in the building for the beneficial use of thereof, must be deemed to be a part of building and land on which the building is situated.

According to the Section 3(26) of the General Clauses Act 1897: Immovable property shall include land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth.

According to Section 2 (6) of the Registration Act 1908: Immovable property includes land, building, hereditary allowances, rights to ways, lights, ferries,, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth but not standing timber, growing crops nor grass.

In general ‘transfer’ in general sense is conveyance or passing or making over the title of one person (the owner) to the another (buyer).

According to T.P.Act, it is defined or explained as

• Sale which comprise of parties involved, subject matter or schedule of the property, price of the property and delivery/possession of the said property, with subject to rights and liabilities of seller and buyer.
• Exchange defined as transaction when two persons mutually transferring the ownership of one thing for the ownership of another, neither thing or both things being money only.
• Release implies an interest in property which is intended to be given up. It may amount to conveyance/sale, gift or an exchange. Sometimes it is executed even in cases if a person has no interest in the property but done in case his claim to property is disputed or as matter of precaution. 
• Relinquishment meaning extinction of rights or interest in property
• Surrender means extinction of rights on the part of the person surrendering the property resulting in merger of lesser estate with greater estate. In true sense it does not mean transfer but the clause was added to avoid any inappropriate capital gain.

The said Act is for provision of registration of documents/instruments which stands face in the law of land.

Section 17, part III of the Indian Registration Act governs the law of registration/notification of document in government records.

Section 17 of the Act read as:

Documents of which registration is compulsory

• Instruments of gift of immovable property (even if less than hundred rupees)
• Other non- testamentary instruments which purport or operate to create, declare, assign, limit, or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property;
• Non-testamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest; and
• Lease of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent
• Non-testamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property

Please Note:

• Non testamentary documents mean instruments/documents executed and be effective during the life time of a person. The testamentary documents like Will, Codicil are not required to be registered even if under the Will the immovable properties given are worth more than lakhs of rupees.
• The conveyance, deed or gift if not registered then the property transfer is invalid or the transferee or purchaser would not get any rights in the said property.
• Section 4 of the Maharashtra Ownership of Flats Regulation and Promotion of Construction, Sale, Management and Transfer (MOFA Act), 1963 provide that ‘Agreement to Sale’ of flat need to be registered. Hence the registration of the said document is necessary but the same is not required to be registered under the Registration Act of the Transfer of Property act. The provisions of Section 49 of the Indian Registration act would not be applied to such an ‘Agreement for Sale’ even if it is not registered. They are to be registered with the Sub Registrar of Assurances (appointed under the Indian Registration act) within those jurisdiction the said immovable property is situated. However in case of Mumbai, Kolkatta, Chennai and Delhi the documents could be registered with Sub Registrar of the said cities.

Sale: Under section 54 of T.P.Act, it is transfer of ownership in exchange of price paid or promised or(part paid and part promised).

In case of tangible immovable property of the value of hundred and upwards it should be made registered instrument.

The rights and liabilities of seller and buyers:

The seller is bound

• To disclose to the buyer any material defect in the property or in the seller’s title hereto of which the seller is and buyer is not aware, and which buyer could not with ordinary care discover
• To produce to the buyer on his request for examination all documents of title relating to the property which are in the seller’s possession or power
• To answer to the best of his information all relevant questions put to him by the buyer I respect of the property or title thereto
• On payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place
• Between the date of the contract and the delivery of the property, to take as much care of the property when the buyer tenders it to him for execution at a proper time and place
• Between the date of the contract and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take od such property and documents
• To give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature as its nature admits
• To play all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all in-cumbrances on such property due on such date, and, except where the property is sold subject to in-cumbrances, to discharge all in-cumbrances on the property then existing
• The seller is deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same
• Where the whole of the purchase money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller’s possession or power
• The seller is entitled to the rents and profits of the property till the ownership thereof passes to the buyer

The buyer is bound

• Disclose to the seller any fact as to the nature or extent of the seller’s interest in the property of which the buyer is aware, but of which he has reason to believe that the seller is not aware, and which materially increases the value of such interest
• To pay or tender, at the time and place of completing the sale, the purchase-money to the seller or such person as he directs: provided that, where the property is sold free from incumbrances, the buyer may retain, out of the purchase-money, the amount of any incumbrances on the property existing at the  date of the sale, and shall pay the amount so retained to the persons entitled thereto
• The buyers is entitled where the ownership of the property has passed to him, to the benefit af any improvement in, or increase in value of the property, and to the rents and profits therof
• The buyers is entitled unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for the interest on such amount; and, when he properly declines to accept the delivery, also for the earnest money (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission
• The buyers is entitled an omission to make such disclosures as are mentioned above is fraudulent

Lease: of immovable property is transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.

The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.

The rights and liabilities of lessor and lessee:

The lessor

• Is bound to disclose to the lessee any material defect in the property, with reference to its intended use, of which the former is and the latter is not aware, and which the latter could not with ordinary care discover
• Is bound, on the lessee’s request to put him in possession of the property
• Shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contract binding the lessee, he may hold the property during the time limited by the lease without interruption

The lessee

• If during the continuance of the lease any accession is made to the property, such accession (subject to the law relating to alluvium for the time being in force) shall be deemed to comprised in the lease
• If by fire, the tempest or flood, or violence of an army or of a mob or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of lessee, be void
• If the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct expense of such repairs with interest form the rent, or otherwise recover it form the lessor
• If the lessor neglects to make any payment which he is bound to make, and which, if not made by him, is recoverable form the lessee or against the property, the lessee may make such payment himself, and deduct it with interest form the rent, or otherwise recover it form the lessor
• The lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased out but not afterward all things which he has attached to the earth; provided he leaves the property in state in which he received it
• When the lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all crops planted or sown by the lessee and growing upon the property when the lease determines, to free ingress and egress to gather and carry them
• The lessee is bound to disclose to the lessor any fact as to the nature or extent of the interest which the lessee is about to take, of which the lease is, and the lessor is not aware and which materially increases the value of the interest. The lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf.
• The lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest r part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease.
• The lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and when such defects has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left
• If the lessee becomes aware of any proceeding to recover the property or any part thereof, or any encroachment made upon, or any interference with, the lessor’s rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor
• The lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use or permit another to use the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injures thereto
• He must not, without the lessor’s consent, erect on the property any permanent structure, except for agricultural purposes
• On the determination of the lease, the lessee is bound to put lessor into the possession of the property

• The ‘Record of Rights’ is the most important document in the Land Revenue System because the foundation of the society and industry in India is in the Land and maintenance of the complete records is skeleton of ownership/lease rights.
• The Records of Rights is a register in ‘diary form’ particulars of all private rights over land whether they have been acquired by registered or unregistered documents, by succession, by oral agreement or otherwise; rights of owners, occupants, mortgagees, tenants or assignees of the rents or revenue thereof and also some public rights, easements and government rights. It is also the record of liabilities as of rights and each separate ‘kabjedar’ (possessor) is now directly liable to Government for the assessment or other dues on the parcel of the land of which he is in possession.
• VII & VIII village extracts: Khatedar (account holder) now meaning kabjedar (occupant) who has a ‘khata’ (account) in V.F. VIII (village Forms). The popular and common entry or certificate is Village Form no. VII which is an Index of Land i.e; Record of Rights and Mutation Registry combine. In case of agricultural land, most cases transferred by inheritance it becomes very important document. It comprise of name of the village, survey number of the property, area of the property, occupant (owner) of the property, therein any person who have third party right in the said property, who is in possession and cultivating the property, mutation entries if any, type of land whether agricultural or non-agricultural region
• In cities Extract VII/VIII are replaced by Registered property card, Index II and others documents

Title

It is an abstract term frequently used to link an individual or entity who owns property to the property itself. When a person has “title”, he is said to have all the elements, including the documents, records, and acts that proves his /her ownership.

Title establishes the quantity of rights in real estate being conveyed from seller to buyer.

Title certificate

The statement or certificate stating the title of the said land/property is held by the current owner legally.

Title search

It is the search carried out by the lawyer/solicitor to ascertain and know the legal owner/heir of the land/property going back to the desired time say 10/15/20…..50… years to present one.

Title insurance

An insurance policy indemnifying against the loss due to title imperfections, purchased usually by the buyer.   

7/12 Extract (Utara) It is a revenue document of ownership mainly for agricultural and rural lands issued by Talathi of the respective village. It has name of the owner, description of property i.e Survey No. & Hissa No.; area of the plot and Mutation entry Nos., of any encumbrances by way of loan, charge, protected tenant, etc, and the tenure of land. This document is always available in local language of the state. It is valid for 6 months duration from the date of issue.

6/12 Extract (Utara) It is a revenue document of the agricultural and rural lands showing details of mutations entries like charges or encumbrances of any nature i.e; transfer, assignment, partition, mortgage etc., popularly known as “Pherfar Patrak” in Maharashtra. It is valid for 6 months duration from the date of issue.

Encumbrance

Any restrictions that affects/limits the title of a property like mortgages, leases, easements, others.

Property Registered Card This is a revenue document like 7/12 extract but issued by City Survey Officer of respective zone, showing ownership, description of property i.e; Survey No. & Hissa No., area of plot in figures & words; and Mutations entry like way of loan, charge, long term lease and others. It is valid for one year from the date of issue.

FSI/FAR   (floor space index/floor area ratio)

It is the ratio of total built-up area of the building/complex to total area of the plot on which it is built.

It is approved by the planning authority like Town planner, BMC.  

TDR    (Transferable Development Rights)

It is equivalent awarded FSI (instead of monetary compensation) to the owner for surrendering his land which is been marked by Planning Authority like BMC, others for developmental purpose.

This TDR can be utilized by himself or transfer/sold in the market. It can be used as FSI to construct additional floor space over and above the existing FSI (maximum limit 2 or more according to the master planners of the city/town) & only north of the land (in Mumbai).  

Approved plan

This is an architectural plan drawn out for developer of the proposed building/structure which is authenticated/approved by the planning authority like BMC, with accordance of developmental regulations & conditions.

IOD (Intimation of Disapproval)

This is communication/intimation from the authorities to the developer of the plan submitted & correction/rectification recommended. It is one of the essentials before the commencement of the construction.   

CC (Certificate of Commencement)

This is to certify the commencement of the construction of the building. It is important document for clients booking flats/apartments under construction. 

OC (Occupation Certification)

This is to certify that the construction of the structure/building is complete according to the approved plan & fit to be occupied by the prospective owners.

.Agreement to Sale This is a instrument or document executed duly between the ‘Vendor” (Seller) and the “Purchaser” wherein the property mentioned is to be sold by “Seller” and purchased by “Purchaser” and described in details like Survey No., C.T.S. No., etc and area of property with terms, conditions and convenants agreed upon like specifications of construction, scheduled of property giving description, location and area of property; list of amenities, facilities and others.

It should have the total compensation sum in figures and words with the duration period. It should have a part payment receipt form the “Purchaser”. 

Sale Deed This is a document/ instrument/agreement between “Vendor” (Seller) and “Purchaser” wherein the property scheduled is sold by the “Vendor” and purchased by “Purchaser” described in details like Survey No., C.T.S. No., etc and area of property with terms, conditions and convenants agreed upon like specifications of construction, scheduled of property giving description, location and area of property; list of amenities, facilities and others. 

It should have the receipt from the “Purchaser” of the full payment or compensation done in exchange of transfer of titles & rights with possession of the property.

Leave & License agreement This is short term agreement not more than 9 years between “Licensor” (Owner of the property) and “Licensee” (prospective user of the property) with terms and conditions described in details with monthly compensation mentioned. It should have the receipt of deposit amount paid by Licensee to Licensor as the form of security.

Lease Deed This is the long term agreement between “Lessor” (Owner of the property) and “Lessee” (prospective user of property) with terms and conditions mentioned generally for more than 9 years, varies from 30 years to 99 years; with description of monthly/yearly lease or compensation along with the premium payable by lessee to the lessor.

Adjudication

Adjudication is a procedure done by the revenue department to determine the market value of the property on payment of nominal fees by the applicant. Applicants have to submit documents, instruments and certain basic data of the property as well as all the factors affecting the valuation of the property.

Stamp duty

It is the tax paid to the revenue department of state government on documents or instruments under the Bombay Stamp Act, 1958 (real estate) & Indian Stamp Act, 1899. It is usually paid by the buyer unless it is agreed any other way.

It is paid as per market value assessed by the Registrar/Sub-registrar Office. The assessment value and amount can be obtained from the Stamp duty Ready Reckoner published by the same department annually.

Registration 

The agreement on which stamp duty is paid should be registered with Registrar/Sub-registrar of the state department as it forms record with the government.

The charges for the same are 1% or Rs.30000/- whichever is less. 

Checklist and Due deligence:

Note: These are just guidelines to check the authenticity and not the ultimate conditions as each property is different with their respective set of requirements and legalities. 

Q. What does power of attorney means?

A. A power of attorney (PoA) is a written instrument empowering a specified person to act for and in the name of a person executing it.

In other words, a power of attorney is an authorization to act on someone else’s behalf in a legal or business matter.

The person authorizing the other to act is the grantor / principal of the power and the one authorized to act is the attorney / agent. It is a unilateral document signed and executed only by the grantor or principal. A PoA may be revoked at the instance of the grantor or due to his death or incapacity. A PoA is usually construed very strictly. The PoA is frequently used in the event of a principal’s illness or disability, or when he/she is out of country and can’t be present to sign necessary legal documents for financial transactions.

Q. Why should one make a PoA? Who should one choose?

A. There are many reasons to make PoA, as it ensures that someone would look after your financial or legal affairs in case you are not available. You should choose your trusted family member, a proven friend or an honest professional with past reputation. However, one must remember that signing a power of attorney that grants broad authority to an agent is very much signing a blank cheque – so make sure you choose wisely and understand the laws that apply to the document.

Q. What are the types of PoA?

A. 2 types

General purpose PoA: The PoA holder could perform all activities on behalf of the original holder(s). If the power of attorney authorizes the agent to act generally or in more than one transaction in the name of a principal/grantor, it is a General Power of Attorney.

Specific purpose PoA: The PoA holder can perform only certain operations. A power of attorney conferring on the agent the authority to act in a single transaction in the name of the principal is a Special Power of Attorney. A single act or transaction is meant to imply either a single act or acts so related to each other as to form one judicial transaction.

For eg; PoA for sale of a particular property.

Q. How do you execute your PoA if you are within India / outside India?

A. PoA should be signed and duly executed on a non-judicial stamp paper per prescribed stamp duty, if executed within India. The power of attorney should be duly signed by the person executing the same. It may be accepted by the person in whose favor it is drawn and should be duly attested by the two witnesses. The power of attorney should be duly executed before and authenticated by a Notary Public, or any court, Judge, Magistrate, Indian Consul or Vice Consul or representative of Central government.   

In case it is executed outside India, it should be on a plain paper without any stamp. The same is required to be stamped within three months after it is received in India by the Collector of Stamps.

For home buyers in Maharashtra, selling a newly-purchased flat meant obtaining a ‘no objection certificate’ (NOC) from the developer in order to transfer ownership to the new buyer. The developer always extracted an exorbitant sum as ‘transfer charges’ from the hapless buyer in lieu of a ‘no objection’ to the sale, especially when the developer was not a party to the transaction. Despite court rulings declaring the practice illegal as it has no basis under any statute of the state, it continues.

But not any longer. The state government has finally stepped in to curb this long-standing malpractice. The state housing department has written to the Inspector General of Registration and Stamps as well as the City and Industrial Corporation (Cidco) asking it not to demand NOCs for resale transactions.

“Now that the housing department has made it clear that such NOCs are not required under any law and should not be insisted upon, it is likely to give huge relief to the resellers of flats and lower the acquisition costs of properties in Maharashtra,” said Ramesh Prabhu, chairman of the Maharashtra Societies Welfare Association.

Under the new norms, if a developer fails to provide a ‘conveyance certificate’ within four months of possession of a flat, a deemed certificate can be taken from the local deputy registrar’s office. What this means is that NOC from a builder would not be needed anymore, which was a must until now for reselling or redeveloping flats.

“This will pave way for smoother transactions and lesser hassles for the parties involved. At the same time it will work in the favour of real estate market in Maharashtra and ultimately, the cost in terms of both time and money will come down,” said RV Verma, CMD, National Housing Bank that regulates housing finance companies.

The problem starts when a person who has bought a flat from a developer wants to resell. In the absence of a society or other similar body, most banks and housing finance companies (HFCs) demand a letter of no objection from the developer.

“The practice was ridiculous and without any basis in law as the builder has no jurisdiction over the property after having sold it off. In fact, unwittingly banks and housing finance companies became parties to the extortionist acts of the builders who withheld NOCs demanding so called transfer charges, sometimes as high as Rs.1,000 per square feet,” explains Vinay Singh, a Mumbai-based chartered accountant and real estate expert.

The existing framework gave developers an incentive to delay forming societies and conveying the land and building to it. “Even after selling a flat, they continue to earn money from buyers by demanding transfer charges from them. Since most of the contracts are known to be in favour of the developers, hapless buyers had no option but to succumb to the demand and pay up the transfer charges,” added Singh.

“Other states need to follow suit quickly with similar clarifications as do banks and housing finance companies to end this malpractice altogether,” said Pankaj Kapoor, managing director of Liases Foras, a Mumbai based real estate research firm.

You have 7 options as follow:

• The legal route: Under following Sections of  IPC
  1. Section 407: criminal breach of trust
  2. Section 415: Cheating
  3. Section 420: Cheating and dishonestly inducing delivery of property.

• Consumer Courts: You could approach a consumer court under the Consumer Protection Act as housing construction has been categorized as a ‘service’ under the Act and the builder is liable for deficiency in service.

• Competition Commission: The Competition Act prohibits three things; anti-competitive agreements; abuse of dominant positions; AND mergers, acquisitions and amalgamations that hamper competition. You can approach the Commission if builder commits any of these violations.

• Consumer groups: A group of buyers, whose interest in a particular project, places them in a better position to negotiate with the builder, than individuals. Even taking legal recourses as a group has its advantages.

• Mediation: There have been instances where local authorities have mediated between builders and buyers to help reach a settlement.

• CREDIA: A body of self regulated real developers with over more than 6000 members is now banking on peer pressure to resolve consumer complaints. It has got its members to sign a code of conduct and launched a Consumer Grievances Redressal Forum, where buyer can lodge a compliant against a CREDAI member.

• RERA: This act known as Real Estate Regulation (& Development) Act is implemented by Indian government in May 2017 is to ensure trasparency, effeciency, protecting the interest of the consumer and also to hear grievances in real estate sector. The guide lines to approach RERA  is given here. But once you approach RERA authority then you may not acess other options for grievances and vice versa.