DOORSTEP LEGAL ADVICE/CONSULTANCY
VED LEGAL provides doorstep telephonic and online legal solution to following matrimonial issues/cases:-
*BUILDER’S HANDOVER PROCESS:-
The date of handover from builder to the registered owners association is an important day for new apartment owners and all residents. It has to be taken seriously and detailed due diligence must be done when interacting with the builders during this handover process. Once the formal handover to the Owners Association is completed, the onus is on the association to run the affairs of the society and to ensure its smooth functioning. The association must be prepared for this day for 3+ months leading to this event.
It is recommended that owners collaboratively engage with the builder right from late construction stages that will help them to take-up this responsibility in future. The builders can also reach out to representatives from the owners group to assist in the selection of maintenance agency which prepares them for the handover process.
Based on our experience in interacting with various builders and associations, we have collated a check list that associations can use when in dialogue with the builder on the handover process:
10.AMC and warranty details; Original bills of equipment purchased (motors, Sewage and Water Treatment Plant, Generators, Gym items like treadmill)
11.Lift license details and next renewal date
12.STP/WTP vendor details, plant layout, operation manual and drawings
13.Receipts of property, electricity and water payments paid
14.Handover of corpus amount to the association
15.Share recent expenses incurred on various maintenance activities and account heads; will assist to budget coming year (staff salaries, purchase of cleaning material, swimming pool maintenance etc)
16.Contract signed with maintenance agency; agreed SLAs
17.Insurance taken for assets and third party lift insurance
18.Audited account statement at the time of handover
WHAT IS REDEVELOPMENT AND WHY IS IT NEEDED?
Housing redevelopment refers to the process of reconstruction of a residential premise by demolition of the existing structure and construction of a new one as per approvals from the Municipal Corporation of Greater Mumbai (MCGM). It ideally works best when a society is in dire need of extensive repairs but is starved of the necessary funds for it.
Developers, on their part, are also on the lookout for properties with unused development rights where they can build a new and higher structure where the additional storeys can be sold for a tidy profit.
As per the terms of the agreement between the developer and the society in question, existing members of the society receive new flats in the reconstructed building of an area equal to or more than the area of their existing flats. But redevelopment can only take place if 75 percent of the members tender their consent.
Over 20,000 housing societies, 17,000 cessed buildings and over 3,000 Mhada (Maharashtra Housing and Area Development Authority) structures are waiting for redevelopment proposals.
The advantages of redevelopment over repair
With redevelopment, the members get a new building, more space and monetary benefits without spending any money from their own pockets. Shah says the developer can offer extra amenities like a gymnasium, a generous car park, and high-end security systems, among other things.
Disadvantages
However, while redevelopment may be the latest buzz, citizens argue that developers often tear down old colonial mansions to build luxury towers for the rich. And more often than not, it is often haphazard and done without the consent of society members.
Any building that is over 25 years old can go for redevelopment once it is declared dilapidated by an Architect. Under the provisions of Development Control Rules, it has become easy for developers to get buildings declared dilapidated even when they are not really so. Given the strong politician-builder nexus in the city, it is not difficult to get a building declared dilapidated by a government architect.
The redevelopment process also causes inconvenience to the residents as they will have to look for alternative places to stay in while the builder demolishes the old building and constructs a new one. It usually takes the builder at least 18 to 24 months to complete a project with an extended grace period of six months in case of any adverse eventuality.
Follow the ground rules
The society should prepare a comparative chart and, after checking the merit, reputation, technical capability, experience, financial status, quality of construction and successful completion of projects, it should select the builder.
“If the carpet area, as documented in the agreement, is not given by the builder, the owner can claim appropriate compensation through a consumer court by filing a complaint against the builder under the counts of Breach of Trust, Cheating, Unfair Trade Practice and Deficiency in Service,” Shah said.
The agreement should mention the time of completion of the project, the size of the new houses, the mode and nature of monetary compensation, if it’s a one-time payment, reimbursement of rent, or a mix of both.The developer also has to offers a monthly compensation in advance along with the brokerage and transportation charge that the tenant has to incur while securing an alternate accommodation, said Shah.
5. At the time of vacating the premises, all the members have to give consent and vacate as per the resolution passed in the general body meeting. In case, a member refuses to do so the society or the builder may move the competent court.
2. Get an Idea of Where You Stand Financially:-
You need a clear picture of where you and your spouse stand financially. One of the primary goals of the divorce process is the make an equitable distribution of marital assets and debts. In order to get your fair share during divorce settlement negotiations it is imperative that you know what is owned and what is owed. This is a two-step process:
Determine what you own:– Some marital assets are obvious. It is clear that the marital home, any financial accounts and vehicles are assets that should be split equitably. Other not so obvious assets may include artwork, pension plans, inheritances or belongings brought into the marriage.
Determine what you owe:– When determining what you owe it does not matter whose name any debts are in. Marital debt will be split based on who is more financially able to pay the debt, not by whose name the debt is in. The easiest way to determine marital debt is to get a copy of your credit report. Any debt you have will be listed on your report.
You need documentation showing your income and the income of your spouse. If you and your spouse are salaried employees, you will need a copy of the most recent pay stubs plus your most resent Income Tax Return.
Determining income is difficult if your spouse is self-employed. In such a case, copies of bank account statements and financial business statements will give a clear picture of income. It is a good idea to make copies of such statements before filing for divorce.
You may be able to get an idea of how much your spouse actually makes but, it can be almost impossible to determine true income when a spouse is self-employed. Gather what information you can and then your attorney can help get the rest through the discovery process.
This is the fun part, figuring out your post-divorce budget. The part where you get to determine what you will have to live on once you are divorced. You are aware of what it takes to run the household now. What you need to know is what your costs of living will be after the divorce. Some people’s incomes drop drastically after divorce. Its best you be prepared by building a budget now instead of being hit over the head with bills you can’t pay.
You will have to estimate some expenses but it is important so that you can have some idea of what you will need to survive in your new life. It is also important because it will influence how you negotiate your divorce settlement. You need to know what you will need financially in order to evaluate your settlement options or what you may ask for should your case go to court.
If you don’t have any credit in your name alone you should establish some now. You can do this by obtaining a credit card but remember you want a card that is in your name only.
Many women find that, after divorce they have a hard time purchasing a home or car because they have spent years sharing credit with their spouse. All that credit you’ve had over the years with your spouse is helpful to him but once you are a single woman, you will get very little ‘credit’ for keeping those payments up.
Once you have a credit card in your name use is sparingly and make sure you are able to pay it off each month. The goal is to establish a good credit score not to run up a bunch of debt. This is done by using credit cards only to the degree that you are able to pay off monthly.
In step two above I discussed obtaining copies of financial documents. If you did that, you now have to figure out what to do with them. It isn’t uncommon, after learning there is an impending divorce for a spouse to raid financial accounts. Sometimes it is done out of anger, sometimes it is done on the advice of an adversarial divorce attorney.
You will want to protect yourself and keep your spouse from being able to clean out any joint accounts you have together. If you fear your spouse doing such a thing you can protect yourself by opening accounts in your name alone, remove 1/2 the funds from the joint accounts, and deposit them into your new accounts.
Do not hide the fact that you have done this and do not spend the money foolishly. Document every penny you spend so that you can have an accounting for it during settlement negotiations or in court. If you have savings accounts, money market accounts or any type investment accounts and you fear your spouse will tamper with those you should consider having the accounts frozen. You should, of course, discuss with your attorney any action you plan to take regarding joint financial accounts.
Before you separate when possible, pay off and close all joint credit accounts. Closing them before divorce proceedings will keep an angry spouse from using the account and running up charges that you may later be held responsible for.
If you can’t pay accounts in full you can negotiate with a creditor to pay less than is owed on an account.. If this is done, get a letter from the creditor that the account has been paid in full and a written promise that they will not file anything derogatory about the account to the credit reporting agencies.
If you are not able to pay off or come to a settlement agreement regarding the balance owed you should have the accounts frozen. This will keep you from being able to use the account but will also protect you in the end. Once the divorce is final, the balance owed on the account can be transferred to the party the court holds responsible for the debt. If the responsible party does not pay the debt then you don’t have to worry about it affecting your credit score.
Contact and alert creditors to the fact that you are going through a divorce. If there is a change of address, make sure they know it so that you will continue to receive bills from all joint accounts.
Make sure all credit card bills are being paid. Divorce proceedings can take months and all it takes is one late payment to hurt your credit. Even if you have to pay the minimum on accounts that you know will ultimately be your spouse’s responsibility it will be worth it.
The most common question I get from clients considering divorce is whether or not they can move out of the house. Unless there is abuse I normally tell them to stay where they are. There are many reasons for not leaving the marital home. The most important are:
Moving out of the marital home can have a negative impact on your case. Do not do it without first discussing the issue with your attorney. In some states, a judge will consider a motion from your attorney for temporary possession of the marital home pending divorce court. You can discuss this option with your attorney.
If there is domestic abuse and you are unable to get an order of temporary possession then it is imperative to take whatever steps you need to protect yourself. Leave the home if you feel you are in danger. If there is a history of domestic violence discuss it with your attorney because he may be able to legally have your husband removed from the marital home.
This means, no dating, no partying, no hanging out till all hours of the morning. If child custody is an issue in your case you need to make your children your number one priority…which they should already be. Don’t act like a good mother/father, be one. This is an especially stressful time for your children and they need you to stay focused on meeting your child’s needs.
If you become sexually frustrated, get over it. Sex is a luxury, not a necessity. Once you are divorced you can have all the sex you want. Until then don’t let your desire for sex put you in a situation a judge might view as questionable.
Spend time with friends, family and your children. Stay close to home, take care of yourself physically and emotionally, attend to your spiritual life and most of all, whatever you do, be above reproach. Behave yourself!
*GROUNDS FOR DIVORCE IN INDIA
The secular mind-set of the Indian judicial system has initiated proclamation of various personal laws based on different religious faiths. Hindus, Christians and Muslims are governed under separate marriage acts and grounds for divorce in India.
Grounds for Divorce under the Hindu Marriage Act, 1955
The following are the grounds for divorce in India mentioned under the Hindu Marriage Act, 1955.
Adultery – The act of indulging in any kind of sexual relationship including intercourse outside marriage is termed as adultery. Adultery is counted as a criminal offence and substantial proofs are required to establish it. An amendment to the law in 1976 states that one single act of adultery is enough for the petitioner to get a divorce.
Cruelty – A spouse can file a divorce case when he/she is subjected to any kind of mental and physical injury that causes danger to life, limb and health. The intangible acts of cruelty through mental torture are not judged upon one single act but series of incidents. Certain instances like the food being denied, continuous ill treatment and abuses to acquire dowry, perverse sexual act etc are included under cruelty.
Desertion – If one of the spouses voluntarily abandons his/her partner for at least a period of two years, the abandoned spouse can file a divorce case on the ground of desertion.
Conversion – Incase either of the two converts himself/herself into another religion, the other spouse may file a divorce case based on this ground.
Mental Disorder – Mental disorder can become a ground for filing a divorce if the spouse of the petitioner suffers from incurable mental disorder and insanity and therefore cannot be expected from the couple to stay together.
Leprosy – In case of a ‘virulent and incurable’ form of leprosy, a petition can be filed by the other spouse based on this ground.
Venereal Disease – If one of the spouses is suffering from a serious disease that is easily communicable, a divorce can be filed by the other spouse. The sexually transmitted diseases like AIDS are accounted to be venereal diseases.
Renunciation – A spouse is entitled to file for a divorce if the other renounces all worldly affairs by embracing a religious order.
Not Heard Alive – If a person is not seen or heard alive by those who are expected to be ‘naturally heard’ of the person for a continuous period of seven years, the person is presumed to be dead. The other spouse should need to file a divorce if he/she is interested in remarriage.
No Resumption of Co-habitation – It becomes a ground for divorce if the couple fails to resume their co-habitation after the court has passed a decree of separation.
The following are the grounds for divorce in India on which a petition can be filed only by the wife.
If there is no co-habitation for one year and the husband neglects the judgment of maintenance awarded to the wife by the court, the wife can contest for a divorce.
*DIVORCE BY MUTUAL CONSENT
Mutual Consent Divorce was brought by the India Parliament vide Amendment in the year 1976 in the Hindu Marriage Act.
Divorce by Mutual Consent means when both Husband and wife has agreed amicably amongst themselves that they cannot live together anymore and that the best solution is to Divorce, without putting forth any allegations against each other, in the court of law, than such a Divorce petition presented jointly before the honorably court, is known as mutual consent Divorce.
It is the quickest form of divorce in India. The Conditions required under Section 13B of the Hindu Marriage Act are as follows:
(i) Husband and wife have been living separately for a period of one year or more,
(ii) That they are unable to live together,
(iii) And that both husband and wife have mutually agreed that the marriage has totally collapsed, hence marriage should be dissolved.
As per law, duration/time of obtaining mutual consent divorce is six months. Although, parties have option of filing the second motion petition any time between six months and eighteen months from the date of the filing of the Mutual Consent Divorce Petition.
PETITION FOR MUTUAL CONSENT DIVORCE CAN BE FILED AT ANY OF THE FOLLOWING PLACE:-
Once petition for divorce by mutual consent is filed, party’s presences are required in the Court for recording of the statement. In the event one of the party is unable to come, such party can appear through power of attorney. Such power of attorney preferably should be a family member of the spouse. Once statement is recorded, it is commonly called First Motion has been granted.
After passing of first motion, parties are called upon to wait for six months period before moving Petition for second motion. This period is extendible unto eighteen months. This six months period in mutual consent divorce is generally called cooling-off period. Six months period are given to parties to think their relationship again. It is given for reconciliation.
After six months period, if parties have been unable to resolve their differences, they will have to appear in the Court again. Statement of parties would be recorded again.
During the period of six months i.e. before moving second motion, both parties have liberty to withdraw their consent for divorce.
After this Court passes an order dissolving the marriage by granting decree of divorce and thereby marriage stands dissolved.
ADVANTAGES OF MUTUAL DIVORCE
Divorce by Mutual consent saves time, money and energy for both, Leaves no room for unnecessary quarrel.
Divorce, also known as dissolution of marriage, is the termination of a marriage or marital union, the canceling or reorganizing of the legal duties and responsibilities of marriage, thus dissolving the bonds of matrimony between married couples under the rule of law.
Divorce requires the sanction of a court or other authority in a legal process, which may involve issues of alimony (spousal support), child custody, child visitation/ access, parenting time, child support, distribution of property, and division of debt.
Divorce should not be confused with annulment, which declares the marriage null and void; with legal separation or de jure separation (a legal process by which a married couple may formalize a de facto separation while remaining legally married) or with de facto separation (a process where the spouses informally stop cohabiting).
Reasons for divorce vary, from sexual incompatibility or lack of independence for one or both spouses to a personality clash.
The Hindu Marriage Act is an Act of the Parliament of India enacted in 1955.
Three other important acts were also enacted as part of the Hindu Code Bills during this time:
Due to the existence of diverse religious faiths in India, the Indian Judiciary has implemented laws separately for couples belonging to different religious beliefs. Mutual consent divorce procedure is relatively easier and fast while contested divorce procedure takes longer and depends on the religions of the couples.
DIVORCE UNDER VARIOUS ACTS IN INDIA:
For More Details Call:
VED LEGAL,
Adv. Gajanan Rahate
Mob: 9763040088
E_mail: [email protected]
A COMPLETE GUIDE TO DEEMED CONVEYANCE
Most of the flat-owners of the newly constructed Societies/apartments do not have their sale deeds or conveyance deeds. Mostly in the newly constructed buildings, the builders provide for forming a housing co-operative society to which they shall transfer their interest in the property. Then the builders form the society but do not transfer the title of the property (read ownership) to the flat-owners or the society till he has transferred all the rights in the building/ Societies/apartments. Thus the builders/promoters are benefiting from the buyers lack of awareness and information.
To curb this practice, amendments were carried out in the Maharashtra Ownership Flats Act, 1963, in 2008 to appoint a Competent Authority (Registrar of Co-operative Housing Societies) to hear the grievances of such Societies/apartments owners and to safeguard their interest by executing deemed conveyance of such societies u/s 11(3) of Maharashtra Ownership Flats Act, 1963.
Ved Legal is having enough experience to deal with these kinds of Deemed Conveyance of Co-operative Housing Societies, in and around pune. Any aggrieved society or apartment holder can get resolution from us in regards of the same.
MEANING OF CONVEYANCE:
Conveyance means to transfer or convey anything to another person. In the legal sense Conveyance refers to the transfer of ownership or other interest in the property to the other party. Conveyance Deed is a document executed to transfer the title of land and building in favour of Society or Association of Persons (AOP).
MEANING OF DEEMED CONVEYANCE:
A deemed conveyance means when the builder/ promoter/ developer of the project refuses to sign the conveyance deed the court can sign the same on behalf of the builder and record the same in the government records.
NEED FOR DEEMED CONVEYANCE:
In a situation when a promoter or owner of residential premises/ buildings does not transfer/convey the ownership of the flats to the housing society or association of persons (AOP), the society or AOP can make an application to Registrar of Co-operative Housing Societies, to transfer the ownership of the said flats to them. This process is carried on through Deemed Conveyance of the title of the buildings and land in favour of the Society or AOP without the need of the builder to do so.
IMPORTANCE AND PROVISION OF LAW ON CONVEYANCE:
As per the Housing Society bye-laws, the main objective of formation of the Society is to obtain the Conveyance; and if Conveyance is not given by the Builder within four months from the date of registration of the Society, a case can be filed against the Builder to obtain the Conveyance. As per Section 13 of Maharashtra Ownership Flats Act, 1963, failure to give Conveyance is an offence and the Builder can be imprisoned up to 3 years or fined or both.
ADVANTAGES OF CONVEYANCE:
DISADVANTAGES OF NOT HAVING CONVEYANCE DEED
Even though you have purchased ownership flat, you are not the owner of the land and building. 2. In the event of a building collapse or damage to the building, you cannot reconstruct the building without the permission of the Builder / Land owner.
CONDITIONS PRECEDENT FOR GETTING A DEEMED CONVEYANCE:
There are certain important conditions which need to be fulfilled to go ahead for deemed conveyance, some of them are:
PROCEDURE FOR FILING AN APPLICATION FOR DEEMED CONVEYANCE:
After the above mentioned conditions are fulfilled, the following steps shall be taken:
Write a letter /email to builder/ promoter requesting him to provide a draft of the SALE DEED/ CONVEYANCE DEED or providing the draft to him and requesting him to sign the same.
DOCUMENTS REQUIRED:
Further, the application required to be made with the Registrar shall be accompanied by copies of certain 20 odd documents which the society shall have to prepare or get prepared.
The papers required for doing Deemed Conveyance are as follows:
Documents to be obtained from City Survey Office, for submission:
Documents to be obtained from the Collector’s Office, for submission:
Documents to be obtained from the concerned Municipal Authority Office, for submission:
Documents to be obtained from other professionals, for submission:
After, the Application is heard by the Registrar he may grant an order for deemed conveyance which shall then be produced before a court for execution and hence the conveyance may be done by a court order.
PROCEDURE:
Stage 1- Preparation for Deemed Conveyance
During this stage the Managing Committee prepares the Members of the Co- Operative Housing Society for Deemed Conveyance.
Stage 2- Documentation for Deemed Conveyance
During this stage the Documents Required for Deemed Conveyance are collected/ organized & the Case is prepared.
Stage 3- Legal Case for Deemed Conveyance
During this stage the case is filed before the Competent Authority & after contesting the same the Order & Certificate upholding the right of Deemed Conveyance of the Society is obtained.
Stage 4- Registration of Deemed Conveyance
During this stage the Deemed Conveyance Deed is Adjudicated, properly Stamped & Registered.
Stage 5- Transfer of Property after Deemed Conveyance
During this stage the Society Name is incorporated in the Land Revenue Records.
In this stage the managing committee needs to pass resolution to undergo deemed conveyance. A Special General Meeting is scheduled with prior notification and consent of all the members is obtained to move ahead.
During this SGM the following Resolutions are typically passed.
This is the most crucial step in obtaining deemed conveyance. It is a very meticulous job and make sure all the documents are lined up within the right format. You would require land revenue records, municipal corporation records, society records, property development records and professional certificates.
All these documents can be obtained from various departments such as Land revenue records from City Survey Office, Tahasildar/Talathi Office & District Collector Office, municipal corporation records from Building Proposal Department of the Municipal Corporation. Society records and certificates can be obtained from society offices and professionals.
Once all the documents are lined up, society needs to fill in Deemed Conveyance Application- Form VII and attached all the related documents. In case of deemed conveyance, a legal notice is sent to the developer for their consent. In regular conveyance procedures, since the developers or promoters are willingly providing the rights lot of documents can be easily recovered from them.
Once the form is filled up and all documents are annexed it is submitted to the Competent Authority- the District Deputy Registrar of Co- Operative Societies of the particular District.
Once the application is submitted to the authorities they issue Deemed Conveyance Scrutiny Report- Form VIII within 1 month. Once the compliance is provided the authorities issues Summons & Newspaper Notices to the Land Owners & Property Developers for appearing for the hearing.
During the hearing process authorities take into consideration the arguments of the both parties. The process takes place within 3-4 months. Once all the arguments are documented the office issues a Deemed Conveyance order within 1 month. The whole process is completed within 6 months as this is a time bound activity.
A deemed conveyance deed is created during this phase and is signed by both societies and developers. If developers do not appear for hearing in the prior stage (Which is the case in deemed conveyance), authorities have the power to sign the deed on behalf of developers.
The society needs to conduct a meeting and appoint 3 members to sign the deed. Post that the deed is submitted to district stamp office for adjudication. If all the members have paid their stamp duty and if there is no balance FSI, the office issues adjudication certificate. (Note – Deed only requires Rs 100 stamp duty). The adjudication certificate needs to be then franked from local bank and resubmitted to registration office.
The registration office then issues notice to land owner/developer to verify if there is any stay order against the deed of conveyance. (Note – The developer can get the stay order only from high court). If there is no stay order the deed of deemed conveyance is registered and then the office issues scanned documents and Index II. This mark end of registration process and the society becomes the owner of the land and structure.
In this phase a new application is submitted to various departments to make mutation entries in their records. This would make the process complete.
FOR MORE DETAILS CALL:
VED LEGAL,
Adv. Gajanan Rahate
Mob: 9763040088
E_mail: [email protected]
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