The Double Registration process for Apartments

The government of Andhra Pradesh may soon implement the double registration process for apartments. If the proposal gets approved, prospective buyers of apartments have to twice register the apartment purchased.

One registration for the actual built up area of the flat and the other for undivided share of land (USL) in the complex. Officials from the Stamps and Registration Department, Andhra Pradesh have forwarded the proposal to the Government for endorse ment, hoping that this would shore up the department’s fixed target of achieving Rs.5,500 crore this year. This is not new either to Karantaka or Tamil Nadu.

In Karnataka, undivided share of land is not registered separately but only along with the built up area. In Tamil Nadu, such a proposal was mooted and a “Ownership Flats Law (Regulation of the promotion of construction sale Management and transfer)” was drafted as early as 1989. This draft is still pending with the government. When contacted, the Tamil Nadu registration officials say that though such a proposal was made some time back the government at the moment is not thinking about this.

Till there is any change, the present laws governing the transfer of properties will continue and they do not compel the registration of both the land and flats. “To register either or both remains as an option”, says C.H.Gopinath Rao, Past National Chairman, and Institute of Valuers.

Escalating price

Andhra Pradesh officials point out that the decision to have separate registration for undivided share of land and built-up area of the flat was taken because of the escalating prices of land at all the municipal corporations in the State and also to discourage registration of half-built apartment. Fearing additional burden if the new proposal is endorsed, apartment welfare associations in Andhra Pradesh are protesting the new scheme. General Secretary Federation of Association of Colonies and Apartments (FACA), Andhra Pradesh, V. Kamesh Babu feels that double registration would further burden the middle class, which is already struggling to find finance for their dream house. “We are scaling back on this proposal. We will only implement if the common man is not burdened by it. The real estate market is already in slump and we don’t want to complicate things further,” says Commissioner and Inspector General of Registration and Stamps, Andhra Pradesh , B. Aravinda Reddy. However, officials argue that the new system, if implemented, would help purchasers. “If a building complex has eight flats of 1,000 sq. ft each on an area of 6,000 sq. ft of plot, the USL to be apportioned to each owner will be 6,000 sq. ft divided by 8, which is 750 sq. ft. The builder never gives this land. But if the rule is implemented, then the builder has to give and can’t use the land for his personal gains,” officials clarify.

Disclosures

Gopinatha Rao, who was part of the team that drafted the Ownership Flats Law, says that a mere compulsion to register both the land and building will not help. “The ownership law that was earlier proposed linked the registration of built up area of the flats with a set of disclosures on the part of the builder. The draft insisted that the builder must disclose the full nature of title, all liabilities of the property, allow for inspection of the documents, disclose the names of people who have purchased the flats, the price, approved plan and building specifications. This would have protected the buyers and any additional cost involved in registration would have been worth it.”

Original Courtesy  :  The Hindu

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The terms of Property Possession and trespasser

The well known and popular dictum that “possession is nine points in law” clearly amplifies the very essence and importance of “possession” in property transactions. The term “possession” has not been specifically defined in any of the laws and enactments dealing with contracts and properties. The meaning of the word in law lexicon is as follows:

“Possession” is a detention or enjoyment of a thing which a man holds or exercises by himself or by another who keeps or exercises it in his name.

The term deals with a specific legal concept, right and interest in immovable property and consists of following categories:

“Absolute Possession” of an absolute owner of an immovable property which permits the owner the total control, domain, use, occupation and enjoyment of the property to the complete exclusion of all others. It is unrestricted in the point of user and unlimited in the point of duration.

Constructive

The possession in this regard can be physical and actual or it can be “constructive”. The actual physical possession shall include the type of possession by which the immovable property is capable of being held.

When an immovable property is in possession of some other person for and on behalf of the owner, or held for the benefit of and in trust for the absolute owner, it is called as “Constructive Possession”. Such “Constructive Possession” is equally total and comprehensive for an absolute owner in the same manner as the physical and actual possession of the property.

The “possession” held by a lessee under a lease of an immovable property is restricted in respect of its duration and also relating to the manner and mode of its use and occupation, by the terms of the lease.

Similarly, the “possession” held by a mortgagee under a mortgage of an immovable property is restricted in terms of its use, occupancy and duration by the terms of the mortgage.

In the case of a “licence” granted by an owner of an immovable property in favour of another person i.e., the licensee, the latter is only permitted to carry out certain acts, deeds and things on the owner’s immovable property. In such a case, the legal and physical possession is with the owner only.

Though a ‘licence’ is also defined as permissive possession, it is the owner who is in possession and the licensee is only permitted by the owner to enter upon the immovable property of the owner for the purposes of carrying out certain acts, deeds and things therein.

The “possession” referred to in Section 53-A of the Transfer of Property Act, 1882, is totally of a different character altogether. In this case, there is a written agreement to sell an immovable property between the owner and the intended buyer and in pursuance of such written agreement, the owner puts the intended buyer in possession of the immovable property in and as part performance of the agreement to sell.

Equitable title

Such possession provides what is known as “equitable title” to the property in the hands of the intending buyer. In other words, in this situation, the seller or any person claiming any right through the seller over the immovable property sought to be sold are legally forced to complete the sale in favour of the intending purchaser and they do not have any right to avoid the same in any manner whatsoever.

When a person occupies the immovable property of another person without any legal right to be in possession of the same, such other person is only a “trespasser”. Such a trespasser has to be evicted only through proper legal process.

In this regard, attention is to be drawn to the provisions of Section 145 of the Criminal Procedure Code, 1973. This section provides that any person, in possession of an immovable property whether legally or even as a trespasser, can approach a magistrate of competent jurisdiction and plead that there is bound to be disturbance of peace if his possession is disturbed and obtain an order that his possession should not be physically disturbed by any other person.

This is a valuable right in the hands of a person with a legitimate legal right to possession. However, in the hands of “trespasser”, this right can be misused and it can be prevented only through the setting aside of such an order by higher courts of law.

( Courtesy :  The Hindu )

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The new government order of Unilateral cancellation of the sale deed

In exercise of the powers conferred by Subsection (1) of Section 22 A of the Registration Act 1908, the Government of Tamil Nadu has declared a few documents as opposed to public policy through the G.O Ms No.150 Commercial Taxes dated September 22, 2000. This order also restrains the cancellation sale deed without the consent of the parties.

By revoking the above G.O. on July 25, 2007, it has now been made possible for the seller of a property to cancel the sale deed without the consent of the buyer. This has thrown a lot of issues and may have undesirable consequences.

Unilateral cancellation of the sale deed brings with it a host of problems, mostly for the buyer. There are instances in the past when the seller had cancelled the sale deed and the buyer approached the court for remedy. It will be pertinent to note that the Commissioner and Inspector-General of Registration and Stamps, Government of Andhra Pradesh, in his circular Memo No.G1/4838/04 dated December 17, 2004 had directed the registering officers to add a footnote to the effect that the cancellation deed is registered under the provisions of the Registration Act and that such unilateral cancellation is not valid unless the deed, which is cancelled, is annulled by the competent court.

Registered sale deeds executed duly have some sanctity and the people at large rely on them to test the title of a particular person to a particular property. If a person executes a sale deed and registers it today and then on the next day if he cancels it, there will be utter chaos in the market.

( Courtesy :  The Hindu )

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