OWNERSHIP OF IMMOVABLE PROPERTY

OWNERSHIP OF IMMOVABLE PROPERTY

Before understanding the terminology of ‘Ownership of Immovable Property’ it is necessary to understand what an immovable property is. In common parlance immovable property means land, buildings and things which are permanently attached to the land.

According to Section 2(gg) of the Karnataka Stamp Act,1957 “immovable property” includes land, buildings, right to ways, air rights, development rights, whether transferable or not, benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. The Transfer of Property Act, 1882, does not define the word ‘immovable property’ in detail, but only mentions that immovable property does not include standing timber, growing crops or grass. According to The Karnataka General Clauses Act, 1899 immovable property shall include land, benefits to arise out of the land and things attached to the earth or permanently fastened to anything attached to the earth. The words “attached to the earth” has been elaborately described in Sec.3 of the Transfer of Property Act. According to this section, attached to the earth means --

1. Rooted in the earth as in case of trees and shrubs;
2. Imbedded in the earth as in case of walls or buildings or
3. Attached to what is so imbedded for permanent beneficial enjoyment of that to which it is attached.

OWNERSHIP:

Let us now understand something about ownership. Ownership can be broadly classified into two – absolute ownership and restrictive ownership. The ownership is an amalgam of rights, interest and title which is recognised under law. The word absolute ownership is a bundle of rights connected to some specified property. The word right has a wide meaning. It gives powers to the person said to have rights to do something or act, or not to do such thing or act, in relation to his property. Rights are of different types such as Right in Rem, Right in Personam etc. “Right in Rem”. is available against the whole world while the “Right in Personam”, is available against a specified person, or group or group of persons. The owner of any property has a legal right which is recognised under the laws of the land. It consists of following rights which are only illustrative and not exhaustive:

1. Right of Possession and occupation.
2. Right to use and enjoy his property without undue interference from outsiders.
3. Right of alienation of his property as provided under law in favour of any person/s without any restrictions by way of sale, gift, transfer by Will, and by creation of trust..
4. Right to make alteration to the property/structure, consume, destroy, repair, reconstruct, hypothecate, mortgage, lease and to use the property as security to borrow funds.

These rights are rights in rem available against the whole world subject to the restrictions imposed under various laws like Land Reforms Act, Land Revenue Act, Town Planning Act etc.


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RESTRICTIVE OWNERSHIP:

Apart from absolute ownership, there are other types of ownerships which are restrictive in nature. In restrictive ownership, certain rights detailed under absolute ownership are restricted or not available for certain specified period.

CO-OWNERSHIP:

Under co-ownership, there will be more than one person who jointly own the same property. Both the persons have equal or certain percentage of rights to possess and enjoy the property as agreed to between them. In the case of co-ownership, the owners own the whole property jointly and thereby their respective shares are not physically ascertainable with definite measurement and boundaries. The shares are undivided. For example, in case four persons own a property of 1200 sft, each of them would be entitled to 300 sft.of undivided share in this property. This 300 sft of undivided share of property could be any part of the building/property and cannot be confined to a specific part. Share of the co-owners in the property need not necessarily be equal. It depends on their investment in the property as detailed in the purchase document. In the absence of any such details as to the share of investment made for acquisition of property it is presumed in law, that all the co-owners have equal undivided share of interest, right and title in the property as per section 45 of Transfer of Property Act. It is always advisable to clearly mention the share of investment of each co-owner in the property and their undivided share in right, interest, title in the property for the purpose of alienation, inheritance and taxation.The Co-owners share in the property is inheritable and transferable. The concept of this co-ownership is often termed as “Tenants in common” in legal parlance. Practically, it is not possible to identify or divide a property held jointly by metes and bounds. Thus, the co-owners possess and enjoy the property in unison.

Dual ownership:

Many owners of land, lease the property to others on long lease. The terms of lease also gives right to the lessee to construct buildings and enjoy the benefits of such buildings on leased lands. This practice has led to dual ownership of land and building. The land is owned by one person and the structures thereon is owned by another person. The terms of lease also stipulate, whether the ownership of the building will get transferred to the lessor or the owner of the land, free of cost on expiration of the lease period or has to pay for acquisition of such structures. The Income Tax Act recognises the dual ownership concept and the owner of the building is taxed for the income received from the property. 

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RIGHTS OF OBLIGATION IN PROPERTY DEALINGS

The transfer of Property Act 1882 deals with various kinds of transfer of immovable property, which include sale, mortgage, lease, exchange etc. In sale of an immovable property there are generally two parties to the said transaction i.e. the Seller/Vendor and the Buyer/Purchaser. Section 55 of the Act refers to the rights and obligations of the seller and purchaser of an immovable property.

Obligations of the seller are:
 
1. To disclose any material defect in the property of seller and title to the buyer.
2. To produce the documents of title for the verifications of the buyer on his request.
3. To answer all relevant questions of the buyer.
4. To execute proper conveyance deed on full payment of the consideration.
5. To take care of the property and the documents in the period between agreement to sell and handing over the possession of the property after execution and registration of Deed of sale.
6. To give possession of the property.
7. To pay all taxes, charges, rents upto date and discharge any encumbrance on property prior to the conveyance of the property.

The seller has some rights; they are:
 
1. To receive the rents and profits of the property till its ownership absolutely passes on to the purchaser.
2. Where the ownership has passed on to the purchaser before payment of full sale consideration, the seller will have a charge on the property for the amount of purchase money and interest on such amounts. 





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Obligations of the buyer are:
 
1. To inform the seller any fact which may increase the value.
2. To pay the consideration amount to the seller as agreed.
3. Where the ownership has passed on to the purchaser, to bear the loss on account of destruction, increase or decrease in the value of the property not caused by seller.
4. To pay all taxes, charges, rents etc. where the ownership has passed.
5. The purchaser may retain the amount of any un-cleared encumbrance, out of consideration amount payable.

The purchaser is entitled to the following rights:
 
1. Where the ownership has passed on to the purchaser any benefit of any improvement increase in the value of the property, rents, profits.
2. A charge on the property as against seller and all persons claiming under him for the amounts paid by the purchaser with interest.

The above referred rights and obligations of both the seller and purchaser are binding on both. But the section 55 of Transfer of Property Act provides an exemption. If the parties to the deal have any contract contrary to the rights and obligations as envisaged in the Act, the contracted obligations and rights prevail to that extent. 

The obligations and rights have relevance only where there is a valid binding contract of sale between the parties.

Incase, the purchaser of property declines to accept the possession of the property, he has charge on the property with regard to earnest money paid and any costs awarded to him of a suit.

The rights of the purchaser is subject to certain limitations. These rights are applicable as long as the matter is in the stage of agreement and when the deal is finalized, conveyance deed is executed; the deal will come to an end.

But the case is different where the conveyance is brought on account of fraud practiced by the vendor.

It is also necessary that the purchaser shall avail himself of knowledge or means of knowledge open to him or his agents to verify the credentials of the vendor, his interest, title to the property. He has to exercise due care and diligence by exercising reasonable care and then only the purchaser can claim the protections of law for any mischief played on him.  

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NORMS OF PUBLIC NOTICE FOR PURCHASE OF PROPERTY

NORMS OF PUBLIC NOTICE FOR PURCHASE OF PROPERTY

Readers of newspapers normally come across notices published regarding purchase of immovable properties. Let us analyze and understand the basis and scope of such notices.

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Every purchaser of immovable property has to exercise proper care and diligence to ensure that the property to be purchased by him is free from encumbrance, charge, and lispendens. Any failure on the part of purchaser to know whether the property is encumbered or free from encumbrance would land him in problem. Section 55 of Transfer of Property Act,1882 makes it mandatory that the seller is bound to disclose all material defects in the property or in his title thereto, which the seller is aware of and the purchaser is unaware. The seller is obliged to disclose all such information which the buyer cannot discover with ordinary care and prudence. Therefore, the buyer should verify, search and utilize all the avenues available to ascertain whether the property intended to be purchased is free from encumbrance.

Deemed Notice:
The Transfer of property Act puts some onus on purchaser and in certain cases, the purchaser is deemed to have notice of some encumbrance. Section 3 of Transfer of Property Act defines the notice. “A person is said to have notice of a fact, when he actually knows the fact, but also when he should have known the fact by diligence search, enquiries without gross negligence”. The Section explains that when registration of a document concerning any transaction of an immovable property is mandatory and accordingly the document has been registered, any person acquiring such property or any part thereof or any share or interest in the said property shall be deemed to have information of the registered document. The Section further states that if any person is in actual possession of the property agreed to be purchased, the purchaser is deemed to have notice of encumbrance. Even if the agent of the purchaser acting on behalf of purchaser has the knowledge of any encumbrance on the property, the purchaser is deemed to have such notice.

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Types of Notices:

There are three kinds of notices:

1. Actual notice when a person has the knowledge of actual fact.
2. Constructive notice where the information is available on proper enquiry and search.
3. Notice to the agent of the purchaser, where the information is given or received by the agent in the course of his ordinary duties, whether he communicates it to his principal or not. Notice to the active partner of a firm has the effect of notice to the firm.

Purchaser’s Obligation:
Most of the encumbrance may be discovered by verification of records at jurisdictional Sub-registrar’s offices and from such other relevant documents. It is obligatory on the part of all purchaser to verify the title as recorded in registers of jurisdictional Sub-registrar’s office and any omission to exercise this will amount to negligence. Just relying on encumbrance certificate issued by registering authority is not enough. Registration of a document operates as a notice.

As mentioned above, actual possession of property by a person other than the seller also operates as notices of title. So the purchaser should invariably inspect the property and ascertain that it is in possession of the seller or the occupant will vacate the property before registration and the seller has every right to get it vacated. There are various instances, where properties are leased, but lease deeds are not registered. Specific Relief Act 1963, under Section 19 also recognizes ‘possession’ as a notice.

It is the duty of the purchaser to make out a clear marketable title of the property. The advocate of the purchaser has to find out from various sources as to whether there are any pending litigations. Proper enquires should also be made as to the claims of dependants under Hindu Adoption and Maintenance Act 1956.

Public Notice:

After exhausting all the means referred to above, the purchasers should also give a public notice of his intention to purchase the property and call for any objections from persons having claim over the property. There may be subsisting encumbrance, which are not registered and which cannot be discovered like prior agreement to sell. Therefore, issue of a public notice would help the purchaser to a certain extent to know the existence of prior encumbrance, if any. The purchaser may publish the notice generally after sale agreement is executed. The notice has to be published in two dailies one in English and another in the vernacular language, which have wide circulation in the area where the property is situated. 

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PLAN WELL FOR A PERFECT HOME

PLAN WELL FOR A PERFECT HOME

To own a shelter is everyone’s ambition. Some may own a home when they are very young, many when they are young, and a few when they are not so young. There are numerous people who do not have their own shelter. They pass their lives in rented premises. Through proper planning anyone can achieve the ambition of owning a comfortable house.
The concept of construction is a little complicated one. It is, therefore, necessary to understand the basics of house construction before embarking on your dream project.



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LOCATING THE LAND

When you decide that you need a house, you then need to find a good plot of land. Always remember three important points. They are Location, good location and best location. Before deciding on the plot, you have to make a survey of various plots and then select a suitable of your choice. If you do not like the position or shape of a land, do not buy it. If you exert a little more, you will definitely find a suitable piece of land at a convenient location.



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ENGAGE PROFESSIONALS

It is always advisable to engage professionals to get quality work and its timely completion. Architects, civil engineers, structural engineers, real estate agents, banks, plumbers, electricians and building contractors contribute a lot in shaping your dream house. You have to select the right people to carry out the work. Engaging professionals will be a little bit expensive, but it will ensure that you do not have to face problems in the long run. If you do not wish to spend money on the professional, you may save a portion of the project cost but in the long run you might face problems.

Purchase of Land

Once you have selected a piece of land and decided to purchase it, your advocate will take care of all the legal aspects of the land as to its title and genuineness, and prepare a document called Agreement to Sell to be entered in to between the purchaser and the seller. Agreement to Sell is a very important document particularly for buying a property. The period between the Agreement to Sell and the Sale Deed is a crucial period for the purchaser. An eminent advocate,who has long experience in property matters, must deal with such important matters. Most importantly you should not follow a ready-made model agreement or sale deed, or engage a real estate agent or a job typist, as some people do. You may save some money but in the long run particularly when you plan to sell the property; chances of facing acute problems cannot be ruled out.

Vaastu Shastra

The concept of building a house on Vaastu principles has become very popular. Vaastu Shastra is the science of construction. In the present times it has assumed a distorted meaning. People attribute Vaastu to good luck and bad luck.

Whether you believe in Vaastu or not, it is advisable to construct the house on Vaastu principles, since an adverse remark on the location of the rooms might psychologically affect the owner if something untoward happens in the future. The main door, pooja room, kitchen, bath room, toilet, storage space, bed rooms, overhead and underground water tanks and septic tanks must be according to Vaastu Shastra, particularly so when you put up the house for sale at a future date.

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House Plan

Making a plan is very important. It is the first step in the entire process before the construction work starts. Once you settle on a budget and spell out exactly what you want, the professionals can take over. The architects will assist you in designing your home, right from the hall, kitchen and bathrooms of the house. The rooms are so designed that they are proportionate to the area available for construction. From the design you can see how each room will look. You may change the plan as many times as you like before making the final drawing. Once the final drawing is prepared it should not be changed. The architect makes the plan with the future in mind. You may do the construction work in stages depending on your budget. If you have money to construct only the ground floor you may do so. You may or may not construct additional floors but it is a must to have a total plan for two or three floors as per the floor area ratio (FAR). Constructing a house without a plan will cause many problems in various stages of construction. Do not take the advice of illiterate ‘maistries’ who do not know the problems that might arise in the future.

Elevation

While planning the house you have to make certain provisions for exterior elevation and interior decoration and furnishing work. These add value to your house for ever. 

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DEVELOPING THE PROPERTY THROUGH JOINT VENTURE

DEVELOPING THE PROPERTY THROUGH JOINT VENTURE

Urbanization has accelerated migration of people to the nearby cities in search of jobs and other means of livelihood. This increased influx of population to the cities has in turn created paucity of residential accommodation. The employees prefer to have accommodation near their job centres for obvious reasons. This has resulted in vertical growth of cities instead of lateral growth. Vertical growth saves lot of land and can accommodate a large of number of families in a limited space. But, vertical development of land requires heavy investment which an individual cannot generally invest and thereby the joint venture activities. 

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What is meant by Joint Venture? 

The words “Joint Venture” is described as “a business activity by two or more people or companies working together”. Many times an individual may own some land, but may not have funds to fully exploit it. Similarly a builder/developer who has resource may need some land to employ his resource profitably. For vertical development of land which comprises of a number of flats lot of money, manpower and expertise are necessary all of which an individual cannot possess. More over, unlike in the case of construction of independent house, the group housing or construction of apartments is more complicated. It requires approval from various agencies like water supply board, sanitary department, electric power supply board, Airport Authorities, Pollution Control Board, Survey Department, Telephone Department, etc. The group housing project also has to get through a much stricter compliance of procedure for obtaining project loans from the banks. 

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Thus, for a joint venture project, the owner and the developer join hands to develop the land for the benefit of both. To avoid the likely disputes, misunderstandings between them and for smooth completion of the project, they enter into a Joint Venture Agreement wherein details of the terms and conditions are spelt out in unambiguous terms. The development agreement must be in writing and needs registration. 

What does a Joint Venture Agreement contain? 

A Joint Development Agreement generally contains the intention of the parties to develop the land, sourcing of funds, time schedule for completion of the project, apportionment of the developed property/flats between the land owner and the builder, commitment of the promoter for adherence of the statutory requirements, expenses to be borne for getting the statutory permissions of the competent authority, finding the prospective purchasers, common areas and facilities specifying the percentage of undivided interest in the common areas and facilities available to each flat owner, type of use of the apartment building, penalties for non-adherence of the terms and conditions by the parties etc. In short, the Joint venture agreements clearly stipulate the duties and responsibilities, obligations and rights of land owner and the builder. 

PROCEDURE FOR JOINT DEVELOPMENT: 

After examination of the property of the land owner, the developer puts forth his intention to develop the property. This offer basically consists of the percentage of the built up area which shall be offered to owner towards cost of the land and the amount of refundable or non-refundable security deposit to be deposited by the developer with the land owner. The percentage of area or flats offered to the owner is arrived at after taking into account several factors such as cost of the land, cost of construction, escalation in cost of construction, cost of obtaining approvals for the building, marketing and administrative expenses and most importantly the selling price of apartments in that area. 

If the offer is attractive, the land owner will give his acceptance and hand over a copy of the title documents to enable the builder to get the same verified by his Advocate. 

If the builder’s Advocate approves the title, a draft copy of the Joint Development agreement laying down the terms and conditions of the development is given to the landowner who generally gets it vetted by his Advocate before giving his consent.

Upon finalization of the Joint Development agreement, the same is registered upon payment of the prescribed fees. This agreement is signed by both the builder & land owner and thereupon the builder pays the first installment of refundable security deposit to the landowner. Along with the Joint Development Agreement, the landowner also gives a Power of Attorney to the Builder to enable him to apply for various approvals needed for the construction of apartment building and to sell the apartments falling to the share of Builder. 

The builder gets the plan prepared by an Architect taking into account the requirements of the landowner. Once the plan is ready and approved by the landowner, the same is submitted for approval of the Government authorities. All the procedures, formalities and costs for approvals are taken care of by the builder. 

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CONSIDER THE LOCATION BEFORE INVESTING IN PROPERTY

CONSIDER THE LOCATION BEFORE INVESTING IN PROPERTY

Location of the property is the first and the foremost priority while investing in real estate. Then, which are the second and third priorities? It is again, location, which is the basic concept in property investment. Selecting a property situated at a convenient and suitable location will result in appreciation of its value and this in turn satisfies you, for having invested in such a property.

The location of the property depends upon the purpose for which the property is purchased. Thus, in case of purchasing property for self-occupation, a residential locality not far away from the heart of the city is preferable and in case of purchase of property for commercial purpose, it is very important that the property is to be situated in a place which is easily accessible to the public. One should not yield to the pressure created for purchasing a property at a cheaper price. Instead, one should ensure proper verification and examination of documents with extraordinary care before committing oneself. It is advisable to select properties situated in the layouts approved by the competent authorities, which, in turn would enable you to avail all the facilities within the layout. It is also important that the area should have basic facilities and civic amenities to ensure better enjoyment of the property.


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The very purpose of opting for a property that suits one's convenience is to have proximity and accessibility to work place, schools, market place, hospitals, railway station, bus station and recreational centers. Apart from this, the locality should have adequate banking facility, frequency of public conveyance, other modes of transport, availability of public telephone booths etc. Lastly, a location with less pollution is preferable. Low-lying areas should be avoided as they get inundated during monsoons.

Decent location

Now, coming to the people residing in the vicinity, emphasis should be on an area inhabited by decent, educated and cultured people with a cosmopolitan outlook, which plays a major role in the personality development of an individual. One has to ensure that the area is not housed with anti-social elements who create social disharmony. In order to avoid noise pollution, it is necessary to verify whether any factory or workshop especially, the ones which work in night-shifts are situated in the immediate neighborhood. Further, the property located close to highways or heavy traffic areas are better avoided.

Facilities like public parks/gardens for morning or evening walks should also be considered. However, apart from all the above aspects, the size of the plot to suit your pocket and the permitted FAR (Floor Area Ratio) are necessarily to be considered.

Vaastu of the property

The concept of Vaastu plays more of an emotional role rather than having any scientific basis, since it is subjective and solely depends upon individual beliefs and preferences. Nevertheless, people still seek Vaastu shastra before opting to own or constructing a property. Keeping in mind appreciation in value and the feature sale it is better to ensure that the property is as per the Vaastu guidelines.


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Value of the Property:

Another important factor to be considered at the time of choosing a property is regarding the resale value. This naturally depends upon the location again. A developing area is preferable than a developed area, since the market value in the developing area is comparatively low and value appreciation is more.

Non-availability of parking space and traffic congestion will have a negative impact on the value of the property. Accessibility to the railway/bus stations, airport, star hotels and availability of infrastructure facilities play an important role. 

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DOCUMENTS REQUIRED FOR SCRUTINY BEFORE PURCHASE

DOCUMENTS REQUIRED FOR SCRUTINY BEFORE PURCHASE

Documents required in connection with the purchase of property will vary from case to case. In general the following documents are required to be verified before purchase of any property to ascertain the valid title of the vendor. In certain cases, a need may arise for verification of additional documents, in addition to the above, to finally conclude the valid title of the vendor.

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(A) For purchase of BDA property (formerly CITB)

1. Allotment Letter.
2. Receipts for payment of site value.
3. Lease-cum-Sale Agreement.
4. Possession Certificate.
5. Absolute Sale Deed
6. Khatha certificate from the BDA
7. Tax paid receipts from the Bangalore Development Authority.
8. Khatha Certificate from Bruhat Bangalore Mahanagara Palike (if it comes under Corporation Revenue Jurisdiction)/Tax paid receipts from Bruhat Bangalore Mahanagara Palike.
9. Encumbrance Certificate from the date of allotment to the date of possession.
10. Re-allotment Letter / Re-conveyance Deed if property re-conveyed by the BDA.

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(B) For purchase of site within jurisdiction of BMRDA/Private Layout

1. Valid Conversion Order issued by the Deputy Commissioner.
2. Conversion amount paid Receipt.
3. RTCs for 30 years issued by the Village Accountant
4. Tax Paid Receipts issued by the Village Accountant
5. Documents of ownership
6. Mutation Register Extracts
7. Akarband/Tippani/Podi Extracts
8. Surveys/Boundary Map
9. Village Map
10. Nil Tenancy Certificate
11. Confirmation from the competent authority that there are no acquisition proceedings.
12. Lay-out Plan Approval by the competent authority.
13. Release of site order
14. Khatha Certificate issued by the Revenue authority wherever applicable.
15. Latest Tax Paid Receipts
16. Encumbrances for the last 30 years
17. Validity of the Power of Attorney

(C) For purchase of Agricultural Land

1. Origin of the Property
2. Flow of Title
3. Mother / Parental Deeds
4. Index of Land and Records of Rights
5. Grant Certificate if any / Saguvali chit
6. RTC/Phani extracts from 1967 onwards or for the last 30 years
7. Relevant Mutations Extract
8. Endorsement from competent Authority confirming that there are no acquisition proceedings.
9. Village Map
10. Survey map
11. Akarband, Tippani, Podi Extracts
12. Relevant Sale Deeds.
13. C.D.P. pertaining to the area.
14. 79 A & B Certificate under Land Reforms Act.
15. Land Tribunal Order, if any.
16. Certificate for change of survey number, if any
17. Nil Tenancy Certificate
18. Latest Tax Paid receipts.
19. Encumbrance Certificate for the last 30 years.
20. Family Tree of the Vendor
21. Phani of the vendor
22. Endorsement from Tahsildar that the land does not fall under “ S.T. & S.C. Grant ” or “ Inam ” category.

(D) For purchase of an apartment/flat:

1. Mother deed to trace the origin of property including all other relevant conveyance deeds to trace the flow of title. Normally, a title documents for a minimum period of 30 years is required. In certain cases, the title deeds for a longer period may be required.
2. Betterment charges paid receipt wherever applicable
3. Khata Certificate and Khata Extract wherever applicable. In BBMP area, computerized Khata Certificate and Khata Extract are required.
4. Sanction building plan from the competent authority
5. Latest tax paid receipt
6. Encumbrance Certificate for the relevant period [upto date]
7. If it is basically converted land, then Conversion order, Zonal Regulation Map, RTC from 1967 to till date, mutation records, I.L. and R.R. records, Nil tenancy certificate, Nil acquisition certificate from the competent authority, endorsement from the Tahsildar confirming that there are no pending cases under Sec. 79-A and 79-B of Karnataka Land Revenue Act, Village Map, Survey Map, Tippany, Akhar Band, Atlas, Approved Layout plan and the sketch indicating the particular site on the survey map.
8. In case of high rise building, permission obtained from Airport authority of India, BWSSB, BESCOM, Telecom, Fire Force, Pollution Board
9. Commencement and occupancy certificates.

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