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LAW RELATING TO PURCHASE OF A HOUSE
Asha Mahant, Solicitor

Buying a house requires a huge investment and hence a flat purchaser needs to be very prudent in ensuring that his hard earned life savings are adequately protected and the house purchased by him is free from all encumbrances.

In the State of Maharashtra, the construction activities of the Builders and Developers are regulated by the Maharashtra Ownership Flats Act, 1963 (the “Act”) and Rules, as amended from time to time, framed thereunder.

Set out below are some general rules / precautions which must be followed while purchasing a house either from a promoter/ developer or through a second sale. However, these steps are only guidelines for examination of the prima facie title to the property and are not exhaustive and may differ from case to case, depending on the complexities involved in the transaction and therefore expert advise must be sought prior to purchasing a house. Once the house is identified and the commercial terms are agreed upon, following safeguards must be kept in mind.

In case of sale directly by a promoter/ developer, the following documents should be verified:

  • The title deeds in the name of the land owner and revenue records of the plots on which the building is constructed or is under construction i.e. 7/12 and/or property card which must bear the name of the land owner with whom the developer has entered into agreement for development. The title of the property should be clear, marketable and free from encumbrances. All dues on the property should have been paid.
  • The Agreement for development between the owner of the plot and the promoter/developer. It should be ascertained that the promoter/developer has sufficient rights and power to develop the property and the documents assigning the development rights is stamped and registered with the office of sub-registrar of assurances. In case of development agreement verify whether the development rights include right to sell the flats and convey the property to the society once it is formed. The promoter/developer must also furnish an Irrevocable Power of Attorney executed by the owner of the property in his name. This is to ensure that in future the owner of the property cannot dispute the right of the promoter/developer to sell the house.
  • The promoter/developer must produce the following documents which shall be part of the Agreement of Sale:
  • Approved plans/specification
  • Commencement certificate
  • I.O.D.
  • Title Certificate
  • Occupation Certificate, when received
  • Building Completion Certificate, when received
  • The flat sale agreement (the “Agreement”) should be in the standard format prescribed under the Act and must be executed by promoter/developer upon receipt of any payment exceeding 20% of the sale price of the flat. The Carpet area of the flats should be clearly and unambiguously defined alongwith the nature, extent and description of all “Amenities” and common facilities must be clearly mentioned in the Agreement. At the time of taking possession check if you have received all these Amenities and also measure the flat area (built up / carpet are) as stated in the Agreement. You must also check that the construction is carried out according to the sanctioned plans and specification granted by the Concerned Authorities. The promoter/developer must ensure good quality materials and proper workmanship.
  • With respect to the payments made to the promoter/developer, the payments must be made according to the progress of the work, under the provisions of the Act. The promoter/developer should not enhance the price of flats on any account whatsoever once the Agreement is executed except for additional government levies/taxes/court orders.
  • The Agreement is required to be stamped and registered. The Stamp Duty is payable on the higher of the market value of the property or on consideration paid under the Agreement. The Agreement must be adjudicated before stamping. Presently the rate of stamp duty payable is 5%. The stamp duty has to be paid before signing or executing the Agreement. The Agreement must be registered with the Sub-registrar of Assurances on whose jurisdiction the property is located. The Registration should be completed within four months from the date of execution of the Agreement. The present registration fee is 1% of the market value of the property or the consideration whichever is higher subject to a maximum limit of Rs. 30,000/-.

 

In case the flat is being purchased in resale and not directly from a promoter/developer, the additional precautions would be to ensure that the seller has made full payment to the developer including all outgoings and has stamped and duly registered his/her agreement of purchase. Also ensure that the flat being purchased is free from all mortgages and loans. In case the flat is in a co-operative housing society, ask for a NOC and no dues certificate from the society and check whether all taxes, maintenance charges and electricity bills are duly paid up-to-date.

The author is a Chembur based practicing legal advisor to individuals, promoters, developers and the co-operative housing societies on the structure of the transactions involving joint ventures in land development, exploitation of balance FSI and utilisation of TDR etc. Any queries can be sent to: ashamahant@gmail.com

LAW RELATING TO LEAVE AND LICENSE
Asha Mahant, Solicitor


In the State of Maharashtra, it is very common for a landlord to grant a leave and license to a person for using the premises for a certain period.
A license is not defined under the Maharashtra Rent Control Act, 1999. The same is defined under Section 52 (Chapter VI) of the Indian Easement Act, 1882. The definition of license reads as follows: "Where one person grants to another, or to a definite number of other persons, a right to do, or continue to do, in or upon the immovable property of the grantor, something which would, in the absence of such right be unlawful, and such right does not amount to an easement or an interest in the property, the right is called a license."
A mere license does not create any estate or interest in the property to which it relates; it only makes an act lawful which without it would be unlawful. Thus the status of a licensee is essentially different from that of a trespasser or a tenant. In fact, the possession of a licensee is not a juridical possession but only an occupation with the permission of the licenser. While the actual occupation remains with the licensee, the control or possession of the property is with the licensor through his licensee
Under Section 55 (1) of the Maharashtra Rent Control Act, 1999, any agreement for Leave and License or letting of any premises entered into between the landlord and the tenant or the licensee as the case may be should be in writing and should be registered under the Registration Act, 1908. Section 55 (2) imposes the responsibility of getting such agreement registered on the landlord. It further provides that in the absence of a written registered agreement, contention of the tenant about the terms and conditions on which the premises have been given either on leave and license or even let out shall prevail. An agreement for Leave and License is required to be stamped under Article 36A of Schedule-I of the Bombay Stamp Act.
Applications for recovery of possession, for premises given on leave and license after 1.10.1987, shall be filed under Section 24 of the Maharashtra Rent Control Act. In case of disputes not falling under the definition of license or falling within jurisdiction of Small Causes Court, where the subject matter of dispute or dispute is more than Rs.10,000/-, the suit should be filed at the City Civil Court, Mumbai and if it is more than Rs.15,000/-, the suit should be filed at the Mumbai High Court.

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The author is a Chembur based practicing legal advisor to individuals, promoters, developers and the co-operative housing societies on the structure of the transactions involving joint ventures in land development, exploitation of balance FSI and utilisation of TDR etc. Any queries can be sent to: ashamahant@gmail.com.

 

 

SC notices to govts on housing fraud

PIL Seeks Norms To Regulate ‘Dream House’ Advts, Builders Without Plots

TIMES NEWS NETWORK

New Delhi: The supreme court on Monday issued notices to the Centre and state governments on a PIL seeking to regulate builders many of whom place big advertisements promising ‘dream houses’ even without owning land, collect large sums as deposits and then disappear with the money.
 The PIL, filed by NGO ‘Sanrakshak – The Protector’, also requested the court to direct the government to put in place national guidelines for print and electronic media for checking the veracity of the ads sought to be inserted by builders. The guidelines should basically be a check-list for the media to satisfy themselves about the genuineness of the builder and the promise being made to prospective buyers about providing houses, the petitioner said.
 A bench comprising Chief Justice K G Balakrishnan and Justices P K Balasubramanyan and R V Raveendran termed the matter serious and also issued notices to builders including PSG Developers, Vian Infrastructure, Seven Heaven Developers, Lord Shiva Infra Builders, Orior Developers and Arun Dev Builders. Appearing for the petitioner, senior advocate P N Mishra argued that the developers, without even owning a single plot of land, sell a dream to the people by putting large advertisements in the media promising them houses/flats with attractive facilities.
 There are a large number of instances where the authorities have issued clarifications, long after the ads have appeared in the newspapers, saying that the builders either do not own land or their plans have not yet been approved.
 Mishra said there have been instances where builders have run away after collecting huge premiums from people and the ‘buyers’ do not know how and from whom to recover their hard earned money.
 The petitioner said a statutory body should be formed by governments to verify the antecedents of each developer or builder who wishes to advertise his projects.


Role of banking ombudsman  

Disputes pending before the RBI-appointed banking ombudsman would cease once the matter is taken before any court of adjudication by either of the parties, the supreme court has held. It clarified the ombudsman’s role was that of a mere “nonadversarial adjudicator of disputes who is expected to sort out disputes between citizens and the banks”.

No court reprieve for Vikas Yadav  

The apex court on Monday declined to stay the conviction of Vikas Yadav, who has been sentenced to four years imprisonment in the Jessica Lall murder case, to contest the UP assembly election. “There is no question of suspension of sentence,” a bench headed by Chief Justice K G Balakrishnan said refusing to grant Yadav relief on the lines of Navjot Singh Sidhu.

Time of india--20 march 2007

Who makes money in real estate?

Let’s explore the fascinating question: Who does make money in real estate, and how do they do it?

The specific type of property we'll focus on in this article concerns residential real estate. It won't come as earthshaking news to you when most people say that they bought a house in order to live in it. Basically, they chose it because they liked it.

Not all of them do, however. And therein lies a key distinction. Many bought the house not because they were fond of it, but because they hoped you would be. It was purchased for resale. We'll call the first group "nesters," the second "investors."

What makes residential real estate different from, say, common stocks is this: There's no such thing as a nester in stocks. People don't buy a stock certificate for personal use. It's too small to serve as a blanket and doesn't taste very good. It's also not much fun to look at for long. That forces them to think about its resale value even before they buy it.

Some people try to apply objective criteria quite consciously, whereas others operate more intuitively. They're convinced it will appreciate in value, so they make the leap. As often as not they fall on their faces but at least they knew what they were doing -- or thought they did.

But in buying a house to live in, personal and investment aspects -- subjective and objective criteria -- are being mixed. Under the circumstances, nesters might have been expected to do less well than average. As one complained: "I think I let my heart instead of my head guide me in picking this place."

People who are buying houses they intend as their principal place of residence tend to pick properties that are distributed somewhat randomly. Price, the nature of the neighborhood, practical considerations, such as commuting distance to work and the quality of local schools, are deciding factors.

On the other hand, the pattern of purchases made by those who label themselves as deliberate investors, and who are buying the house for resale, is anything but scattered. In fact, the houses they choose tend to be clustered in zones that had been classified as "hot investment areas." These are towns and streets that have allegedly been targeted for such things as urban renewal, a new shopping center, an industrial park or are in the path of a major new highway.

A reason nesters typically reap a greater profit is the length of time they hold on to the house. The median holding period is almost six years, versus a little under three years for investors. Commission costs and taxes, even at capital gains rates, tell only part of the story of reduced profits. A far more significant factor is that investors repeatedly wound up selling too soon.

There are two conclusions to be drawn from the data. The first is that, thanks to persistently high rates of inflation, investors have looked everywhere to find something of value that will keep pace with the progressive erosion in the purchasing power of their money. The result is that the number of home buyers who now give as their number one reason for purchasing a home, "it's a good investment," has nearly tripled in the past two decades, from 26% to 76%.

The second conclusion is that personal judgment is worth more in real estate than anyone has previously imagined. Let me qualify this a bit: You can't just say, "I love the place, I'll take it." There are some hardheaded considerations and technical details that have to be carefully attended to. Yet the bottom line remains the same: If you buy a house because you like it, there will be other people who subsequently will like it too. If you buy it simply because you think it's a great investment, you'll probably be paying a premium for it.

So make all the computations you want on your calculator. But don't for a moment discount your fondness for a house when it comes to buying. It's certainly not true where stocks and bonds are concerned, but buying a house you like strictly for personal reasons increases significantly the chances that you'll do well when you eventually have to sell it

Architecture of Change: Design Adjusts to the Age of Flux

Architecture has always served to protect, shelter, contain and memorialize our enterprises and lives. This type of architecture has intentionally strived for permanence. Being able to withstand the forces of time and elements requires sturdy, durable materials and an enduring mind set.
The Architecture of Change is a paradigm shift that embraces the transience in today's culture and life in an age that worships change. We are the most news-centric generation ever, ruled by flux and mobility. Process is as important as the continually morphing goals. We are beset with styles, trends and other forces of change. A new means to help sustain our adaptability in the built world is rapidly emerging and can be termed The Architecture of Change. It frees us from buildings and environments that are bland boxes made of immutable materials and mute walls. It enables us to design with more emotion, and deliver experiences driven by content and meaning.

Design and architecture mirror a culture's ideas, values and traditions. Since we are now so mutable (and the prior built world has been mostly about permanence), a new set of tools is necessary to more accurately reflect our society.

The Architecture of Change employs refreshable information, messaging, content, images, transparency, luminosity, activity and digital technologies as key components in shaping and choreographing social experience. The focus is on people-setting stages for their lives and roles using communication as both message and medium

 

Will this vernacular be a brief era, a fad? Or is it deeper? Some would say buildings are a means to counter change, strengthen traditions and affirm existent cultural values. Maybe, but there is a basic human need to share information, tell stories and perpetuate myths, lessons and knowledge through our structures and dwellings. Early evidence of this is on the caves at Lascaux ; Egyptian tombs bear tattoos of hieroglyphics. Ancient South American and Asian temples are covered with sculpted stories and bas-reliefs. Cathedrals and palaces are laden with murals, mosaics, paintings, stained glass windows, and entablatures-all imbued with messages. The ongoing need to communicate within and on buildings seems to transcend time, history and culture. This graphic, story-telling portion of architecture has created much of its richness. Could graffiti be a populist reaction to our present modernist muzzle of structures?


The need to tell stories on buildings to a media-savvy culture and the possibilities of digitally-empowered technologies can combine to create a place where you are more likely to be engaged by sight, touch, sound, and thought.

Variety magazine recently lauded the architectural emergence of clear glass and transparent buildings Celebrating activities within, removing the barriers between inside and outside space and showcasing them with light and information, has always been a great animator of streets and spaces.

'If everything is energy, anything is possible.' The Architecture of Change - using glass, light and digital media - presents a rich palette of possibility.

Mechanical, security, engineering, construction and enclosure systems now allow building skins to be anything or seemingly nothing. Digital systems now can take a pure glass, completely transparent curtain wall and turn it into a full video screen with moving images in color. The dinosaur that walks across a building facade in the film  The glass is a clear, nonwired window wall that uses new electronically charged polymers to produce a moving image, at any size, in color.


Many other noncommercial applications can be accomplished with these same technologies. Jenny Holzer has shown how elegant her poetry of thought can be artistically and architecturally interpreted in space, form and diodes. Churches, museums, governmental buildings, plazas and schools can now advance ideas, share values and build community with this approach.

Some reasons that may be fueling this resurgence in talking buildings:

  • Historical architecture and archaeology is rife with static messaging offering evidence of a need for human expression as part of structures
  • Architecture has always seen itself in terms of cultural reflection, ideas and authenticity
  • Multimodal information processing via computers and telecommunications is rapidly becoming a cultural norm
  • Digital technologies in imaging, communications, projection and interactivity now offer a multitude of architectural applications and modalities with a wide range of costs
  • Glass and other non-barrier materials and their necessary supporting systems are easily achievable and affordable
  • There are users, sponsors, companies and institutions that seek these channels of communication
  • The convergence of all these technologies-the information age culture, economics, communication, art, marketing and commerce-are setting the table
    for serving up The Architecture of Change
  • It is occurring, everywhere, as we speak

In any content rich environment, communication has to occur by referencing existing knowledge, engaging one's audience and mutually exploring and discovering new ground.

Thriving on the progression from permanence to change from chaos to Chaos Theory and from static to fluid is further evidence of our ability to grow and adapt. Embracing these changes means relaxing our grip on past comforts and proven formulas for the promise and excitement of newer evolving challenges. Being able to harness change in built structures can have positive impacts for users, owners, design professionals and even society.

This blur of change can serve to remind us about living in the ever present moment, to appreciate, and to relish it. Embracing these changes with a new Architecture of Change frees us to connect and communicate in the realm of ideas, process, emotion and exchange. This, in a very real way, is quite timeless.

-Sanjay Rao, Architect

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Is in Future Won't Need Today's Architects ?

What's next for successful architecture, engineering, and design practices? We believe that firms will not only be faster and smarter but also wiser and more independent. This much is known: the best firms always move forward. Fundamentally, that is why future clients won't need today's design firms.

We expect to see significant new processes that will break away from the linear project management processes most firms use today. Contract documents will be overhauled to reflect simultaneous multiphase and nonlinear productivity. Powerful parametric technology will deploy artificial intelligence using voice command. We expect 3-D and 4-D smart BIM. Firms will integrate virtually in models, not vertically in service silos.

Changing demographics will alter the marketplace significantly requiring foresight-the client's world will be changing even more radically than in the past. Some firms will change at a speed calibrated to the client's changes. Others will wonder where the clients have gone.

Foresight and innovation will be first on the agenda of the most successful firms. Architects and designers will get serious about the business of running professional practices. They will understand that design firms are run for clients, not for firm employees. Their new agenda will create new scientific order from complexity. Increasing complexity will create new relevancy and new satisfying fee parameters.

Higher performance is made possible by technical and human creativity, and both will be systematized.

 The experience of well designed spaces will be credited with better learning and increasing brain functionality. Architectural spaces will be credited with healing and emotional rejuvenation. Architecture, engineering, interior design, landscape architecture, and industrial design will shape social experiences and become forces to better the human experience. Design firms will create a blueprint for survival one project at a time.

Does this all sound a bit beyond your present and future strengths? Do you know what's coming next? Are you the voice of opportunity in your firm? Do you know how to break through the cynicism and worn out excuses? Are you a well of strategic optimism? Are you designing alternatives to the status quo?

We believe that much that will happen in the future is knowable and that we can even plan for both pitfalls and windfalls. How likely is it that your new vision will become a reality? Time will tell. But this much is certain, the future won't need today's design firms.

 

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