Ved Legal - 2023 September

HANDOVER PROCESS WITH THE HELP OF BUILDER

HANDOVER PROCESS WITH THE HELP OF BUILDER

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:

1. Get approved building plan which includes block-wise and floor-wise details

2. Collect the Completion Certificate which ensures adherence of the approved plan

3. No Objection certificates from pollution, fire, water and electricity authorities

4. Hard copy and soft copy (in CD) of all approved engineering drawings; look for approval seal on the drawings

5. Registration and parent documents

6. Drainage, sewage, Fire protection and common area power layout drawings

7. Car parking layout drawings (with numbering)

8. Asset Inventory of all movable and immovable equipment purchased; numbered in order (list needs to be exhaustive)

9. Record of recent service history on key equipment’s like lifts, DG sets, STP and WTP

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 19. Arrange for introductory meeting with important suppliers and vendors

By admin|September 26th, 2023|HANDOVER PROCESS WITH THE HELP OF BUILDER / PROMOTER|Comments Off

CHECKLIST FOR HANDOVER OF SOCIETY FROM BUILDER

CHECKLIST FOR HANDOVER OF SOCIETY FROM BUILDER

During the handover procedure it is important to record and file all details related to the process so that even if problems arise years later, all you need to do is look through this set of records and, accordingly, figure out what to do next.

The builder-residents society handover procedure needs to be structured, but that’s not where the process ends. There are a few things you should remember to check even after the builder hands over your society.

1)Make sure all society related issues are recorded and filed: All defects that you find should be typed as a letter with a signed acknowledgement of the same from the builder, so he is obligated to fix them. All important e-mails should be printed and kept safely for future references.

2)Make sure you make good use of the builder provided warranty period: Builders generally offer a warranty period within which defects are to be pointed out and duly fixed.

3)Form a team of volunteers to check and cross check all formalities are done correctly: Apart from the Management Committee, it is recommended that you bring together a group of residents to volunteer in making sure all necessary documents have been collected and all required formalities have been done. (To learn what documents you need during society handover, read ‘Keep a Check on These When Builder Hands Over Your Housing Society’)

4)Get a community management software to help you keep a permanent track of records: Getting a society management portal will prove significantly helpful in the overall management of your community activities in the long run. (For example: Common Floor Groups portal. With its many features such as Discussion, Complaints, My Dues, Issue Tracker, Documents repository this portal will serve as a platform to execute and manage community related activities effectively.)

5)Keep originals safely and copies separately with the Committee President: Make sure you keep originals of documents at a safe place such as the Association office and their copies with the Committee President which, when his tenure ends, are passed on to his successor.

6)Make sure you have all documents mentioned on the ‘Handover’ Checklist: Double check that you have all documents mentioned on the handover checklist in ‘Keep a Check on These When Builder Hands Over Your Housing Society’.

By admin|September 23rd, 2023|CHECKLIST FOR HANDOVER OF SOCIETY FROM BUILDER|Comments Off

LAWYERS FOR FORMATION OF A NEW HOUSING SOCIETY

First general body meeting (before registration)

In this meeting under Society’s Model Bye-law 3(iii), the Chief Promoter (could be the builder) is primarily selected by the promoters, who are members co-signing the registration application before the Registering Authority, under Bye-law 3(xii).

In this meeting, necessary resolutions are passed like opening the account in a bank in the name of proposed society and for obtaining permission for reserving the name of the society. It is compulsory for SRA/ MHADA recognized societies, for the first meeting to be video-recorded.

Application for registration

Normally, the name reservation proposal should be accompanied with the society resolutions and signatures of at least 10 Promoters who have attended the meeting. On allotment of name and permission to open a bank account by the Registrar, the Chief Promoter has to collect Share Capital, Entrance Fees from promoters and deposit the same in the branch of the bank permitted by the Registrar. It should be noted that the amount cannot be withdrawn from the Bank till the society is registered or its registration is refused, except with prior written permission of the Registrar. The Chief Promoter should submit registration proposal to the registering authority within a period of 3 months from the date of issue of Letter of Reservation in the name of the proposed society.

If builder/ promoter is not co-operating in registering the Co-operative Housing Society, then in that case, the application for registration of society be submitted in Form 6 (Rule 12) before the District Deputy Registrar, who has been given power under Section 10(1) of the Maharashtra Ownership Flats Act 1963. While submitting the said proposal, a Notarized Indemnity Bond of the members who applied for the registration of society on the stamp paper of Rs. 200 is required.

Documents required for Registration

7/12 extract of the land or property card.
Certificate concerning non-agricultural land from the competent authority
The order of applicable or non-applicable of land ceiling Act
Construction layout duly approved by the competent authority
Letter of sanction for starting construction
Certificate regarding completion of construction work
Development Agreement if the land is taken for development
Letter of Power of Attorney of the land
Title search report of the land
The registered agreement of purchases of the flat with necessary stamp duty paid
Architect Certificate regarding construction
List of Members
Scheme of the Society
Application for reserving name
At least ten members are necessary for registration of society. On the other hand, the government has given permission subject to some conditions for the Housing society of fewer than 10 members by exercising powers. For registration proposal, the signature of sixty percent promoters, who participated in the registration proposal is necessary.
If the land is given by the government or undertaking agency of the government then its guarantee letter.
No objection certificates from the Charitable Commissioner if the land is of Trust.
Certificate of the competent authority regarding non-agricultural plot
While registering SRA/SRD and MHADA recognized Co-operative Housing Societies, it is obligatory to fulfill the necessary papers as per instructions are given by the authorities by their circulars in addition to above criterion.
Application for Registering Society (A form)
Table giving information of society (B Form)
Table giving details of the members (C Form)
Statement of Accounts of the Members (D Form)
Notarized Guarantee letter by the Chief Promoter of the society on the stamp Paper of Rs. 100/-
Notarized Guarantee letter by the Builder, Promoter on the Stamp Paper of Rs. 100/-
Affidavit of Members (Affidavit of Minimum 10 Promoters)
Two copies of bye-laws of the Society approved by the Commissioner, Co-operation and Registrar, Co-operative Societies and Maharashtra State, Pune
Proof of the bank balance of the promoter member (deposit of each share of Rs. 500 and admission fee of Rs. 100), after getting permission for reservation in the District Central Co-operative Bank
Challan of Rs. 2500/- deposited in the Government Treasury Registration fee for the Housing Society of the Backward class is Rs. 50/-

Approval by Registrar

It is the duty of the concerned Registrar to register the Co-operative Housing Society, by scrutinizing the proposal submitted after fulfillment of above mentioned documents, and shall make an arrangement of issuing certificate of registration society under Section 9(1) of the Maharashtra Co-operative Society Act 1960, and copy of the registered bye-law, memorandum regarding registration of society to the chief promoter. The order regarding registration of society should have been sent for publishing in government gazette to the Government Printing Press for appropriate action. It is necessary to take decision on the registration of the society within a period of two months from the date of the proposal of the society submitted to the Registrar.

If proposal of society registration is denied or no decision is taken within two months then it is necessary to send that proposal to the Divisional Joint Registrar, Co-operative Societies under Section 152 of the Maharashtra Co. operative societies Act, can be approached.

First General Body Meeting obligatory Agenda (after registration):

• To elect a Chairman for the meeting

• To admit persons to membership who have applied for membership of the society.

• To elect a provisional Managing Committee

• To receive and approve the statement of account as prepared by the Chief Promoter of the society up to 14 days prior to the first general body meeting of the society.

• To authorize the committee to secure conveyance of right title and interest in the property in the name of the society from the promoter builder

• To impose restrictions on raising loan amount from outside

• To appoint internal auditor and to fix his remuneration

• To authorize one of the members of the provisional committee to call the first meeting of the provisional committee

• To take decision about taking membership of District Housing Federation and other institutions

• To give power to one member of provisional management committee to call meeting of the managing committee • To consider the matters raised by the member except these matters which are necessary for giving advance notice with the permission of chairman and eleventh hour matter and to make resolution in that regard.

By admin|September 23rd, 2023|LAWYERS FOR FORMATION OF A NEW HOUSING SOCIETY IN PUNE|Comments Off

DEEMED CONVEYANCE PROCEDURE FOR SOCIETY BECOMES EASY

DEEMED CONVEYANCE PROCEDURE FOR CHS BECOMES EASY

The Maharashtra government has relaxed the terms for the deemed conveyance (DC)-ownership right of plot certificate from the builder, by bringing down the number of documents required from 12 to 8 and stipulating that DC will be given even if the society does not have an Occupation Certificate (OC) or the Building Completion Certificate (CC).

It is mandatory for land-owners or developers to convey the title of the plot within four months of the formation of the housing society. In many cases, the builders fail to convey the title of properties to the housing societies, in the hope of availing more floor space index (FSI) that may become available in future, or to avail the benefits accrued to them in case the property is redeveloped.

If the builder fails to convey the property, the Maharashtra Ownership Flats Act (MOFA) allows societies to apply for DC. However, having OC was mandatory and was insisted upon by the officials of the cooperative registrar’s office. OC is given only when the building is complete in all respects and has complied with the mandatory norms laid down by the government authorities to make it ready for occupation. Since most of the builders abandon the projects before complying with the norms and conditions, OCs are not given to the societies. Developers just hand over the possession and exit the project, leaving the residents high and dry.

However now, the DC will be issued even if housing societies have submitted such documentary evidence as the formation of the society or the payment of property tax by the society.

As per the GR issued on 22 June 2018, by the state cooperation department, it has been made mandatory for the registrar of cooperative societies to register documents of the applicants within a day. Besides, as per the Maharashtra Right to Public Services Act, 2015, the DC should be issued within six months. If an official fails to provide and approve it within the prescribed period, then he or she will be penalized between Rs500 and Rs.5,000/-

The applicants should submit the applications with a court fee of Rs2,000. In case the FSI has already been consumed, a certificate of an architect that the total FSI has been consumed would suffice. In addition, they have to give an indemnity bond stating that they will take responsibility for the building and adhere to all required rules and regulations. If there are more than one society on one plot, the details of proportionate area and ground coverage should be furnished.

The documents required for conveyance include society registration certificate, approved layout, 7/12 extract, sale deed of each flat owner or heir document, list of registered members of the society, occupation certificate, non-agriculture certificate of that particular plot and notice copy etc. In the absence of sale deeds of all members, the sale deed of even one member would be sufficient, states the GR.

While submitting the conveyance application and documents to the registrar, a copy of the same application also needs to be submitted to the stamp duty and registration department for its speedy approval. The applications will be accepted online as well as offline. The officials of the concerned department such as urban, cooperative, forest and revenue department will have to work in unison so that the applicants are not required to shuttle from one department to another.

The system of issuing DC was started three years ago. However, due to stringent conditions there was no response from cooperative societies. Commenting on the issue, Ramesh Prabhu, Chairman, Maharashtra Societies Welfare Association said “This was a positive step. In many cases, the builders exited the project without getting the OC, and the residents had to bear the brunt. This relaxation will ensure that majority of the societies get deemed conveyance. By a fair estimate over 10,000 cooperative housing societies in Mumbai and neighboring areas, are yet to get the DC. Now they should come forward to take advantage of these relaxed norms.” There are a sizable number of housing societies in Mumbai that are struggling to get the DC. In absence of DC, redevelopment of some of the societies has been delayed. Some of the developers used to sell the flats till they held the ownership right of the layout and were misusing this right, causing impediment in the way of redevelopment.

By admin|September 23rd, 2023|DEEMED CONVEYANCE PROCEDURE HAS BECOME EASY|Comments Off

PROVISIONS FOR DEEMED CONVEYANCE UNDER MOFA

PROVISIONS FOR DEEMED CONVEYANCE UNDER MOFA

Amendments in Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 2005 giving a huge relief to hundreds and thousands of flats purchasers in Maharashtra. Conveyance to the societies was a burning issues which have integrated many problems like property tax, housing finance documentations and major repairs or redevelopment.

The highlights of the amendments are as under:

Builder/s will have to execute the conveyance.
Power is given to the District Deputy Registrar to act as Competent Authority. (Sec. 5A)
Power is given to Competent Authority for registration of Co-operative Society under the provisions of Maharashtra Co-operative Societies Act, 1960. (Sec. 10(1) )
It is the duty of the promoter (builder) to file with the Competent Authority within the prescribed period a copy of the conveyance executed by him (Sec. 11(2))
If the promoter fails to execute the conveyance in favour of Co-operative Society, Company or Associations or Apartment Owners as the case may be, then the flat purchasers can approach the Competent Authority with true copy of registered agreement of all the flat purchasers including Occupation Certificate, Registration Certificate of the society then in such circumstances the Co-operative Society, Company or Associations is entitled to have unilateral deemed conveyance (Sec. 11(3))
The proceedings before the Competent Authority have to be completed within a period of 6 months. The Competent Authority must verify the authenticity of the document produced before him and after giving a reasonable opportunity to the promoter, if satisfied will issue a certificate to the Sub-Registrar or any other Registration Officer under the Registration Act, 1908, certifying that it is a fit case for enforcing unilateral execution of conveyance deed conveying the right, title and interest of the promoter in the land and the building in favour of the applicant, as deemed conveyance(Sec. 11(4))
The sub registrar after receipt of the certificate issued by the Competent Authority along with the unilateral instrument of conveyance can issue summons to the promoter to show cause why the unilateral instrument should not be registered as deemed conveyance. However, reasonable opportunity of being heard may be given to the promoter. If the Sub-Registrar is satisfied then he will register the unilateral conveyance as ‘deemed conveyance’. (Sec. 11(5))
The Competent Authority has been created who has powers to award criminal imprisonment to the builder/s for a period not less than 6 months and not more than 1 year and / or along with fine ranging from Rs 10,000/- to 50,000/- (Sec. 13(3)(a) & 13(3)(b))
The builder/s if convicted will not be able to carry on construction activities for a period of five years. However, the disqualification shall not affect the permission for construction of flats already granted. (Sec. 13 (4), 13(5) & 13(6) )
The Competent Authority shall be deemed to be a public servant as per the provisions of Indian Penal Code. (Sec. (13B)
Proceedings before Competent Authority shall be aimed to be judicial proceedings as per the provisions of Indian Penal Code. (Sec. 13C)
Competent Authority shall be deemed to be a Civil Court for certain purposes. (Sec. 13D)

No action can be taken against the Competent Authority for acts done in good faith by the Competent Authority. (Sec. 13E)

By admin|September 23rd, 2023|PROVISIONS FOR DEEMED CONVEYANCE UNDER MOFA|Comments Off

WHY CONVEYANCE DEED IS AN IMPORTANT DOCUMENT?

A deed is a written document or an instrument that is sealed, signed and delivered by all parties to the contract (buyer and seller). It is a contractual document that includes legally valid terms, and is enforceable in a court of law. It is mandatory that a deed should be in writing, and that both parties involved must sign the document.

There are different kinds of deeds, such as lease deeds, partnership deeds, trust deeds, gift deeds etc.

A conveyance deed is essentially one wherein the seller transfers all rights to legally own, keep and enjoy a particular asset, immovable or movable. In this case the assets under consideration are immovable, namely property.

On signing a conveyance deed, the original owner transfers all legal rights over the property in question to the buyer, against a valid consideration (usually monetary). This consideration, however, is irrelevant in the case of gift deeds, as they are based on fraternal or familial bonds.

A ‘conveyance deed’ or ‘sale deed’ implies that the seller signs a document stating that all authority and ownership of the property in question has been transferred to the buyer.

It is required to contain the following:

• Defined demarcation of the boundaries of the property
• Other rights (if applicable) annexed to the property and its use
• The chain of title i.e. all legal rights to the present seller.
• The method of delivery of the given property to the buyer.
• A memo of the consideration, stating how it has been received
• Any other terms and conditions that are applicable as far as the transfer of ownership rights are concerned.

Once the conveyance (or sale) deed has been executed on non judicial stamp paper, it needs to be registered. This can be done by presenting it at the Registrar’s office, and remittance of the registration fee. Once the registration is done, the transfer moves into the public domain. The Government obtains its revenue in the form of Stamp Duty and Registration Fees, and at this point the process of conveyance is officially over.

By admin|September 23rd, 2023|WHY CONVEYANCE DEED IS AN IMPORTANT DOCUMENT?|Comments Off

Lawyers for Sale Deed

Lawyers for Sale Deed

A Sale deed is an instrument which shows the transfer of title, rights, and ownership of a property from a owner/vendor/ seller to a buyer/purchaser

A sale deed is an essential document for both the parties which are registered in accordance with the Registration Act, 1908. It is signed and executed as mentioned in the agreement after both the parties agree with the terms & conditions thereof

In general, this instrument of sale deed must content below-mentioned details-

the full name & address, age & occupation of the parties involved.
Gat/Survey/CTS Numbers, Areas of the property, correct address, dimensions of the property, construction details of the building etc…
This includes a declaration from the seller that the property being transferred is free from every encumbrance, litigation, and charge. Also, the seller indemnifies the buyer from any pending charges in that regard. The seller should settle a pending loan taken with the concerned property as a mortgage, before proceeding with the sale. The buyer has every right to examine the related documents before registration.
This is the price at which the deal is closed between the parties. This section should also mention the advance amount paid if there is any. The parties should explicitly agree on the dates of payment, the mode of payment, etc. The price and the details of the transactions made should be mentioned in both figures and numbers. The sale deed should also mention the receipts of the sale transaction.
the deed should specifically mention the date of handover to and possession by the buyer.

General precautions before execution of sale deed

to ensure there are no encumbrances like lien, mortgage etc.

MAIL ID – [email protected]

CONTACT- +919763040088

By admin|September 22nd, 2023|Lawyers for Sale Deed|Comments Off

WHY A CO-OPERATIVE HOUSING SOCIETY IS BETTER THAN APARTMENT OWNERS ASSOCIATION?

WHY A CO-OPERATIVE HOUSING SOCIETY IS BETTER THAN APARTMENT OWNERS ASSOCIATION?

1. The builder is interested in using the increased FSI which will be awarded by the govt. for that area at any time in future. If the ‘Society’ is formed, then upon the transfer and conveyance of land in favour of the Society, the increased FSI will be owned by the Society and the builder shall not have any right over it. But if it is an Apartment, then the builder owns that increased FSI and can use it anywhere. Thus, the builder will keep taking advantage of every increase in FSI throughout in the future.

2. In an Apartment, the builder retains the ownership of the open spaces which are not included in the saleable area. Example – Terrace or any open parking/stairs space which is not included in the saleable area. But in case of Society, the builder cannot retain any right on any of these areas and has to hand over everything to the Society. The Maharashtra Apartment Ownership Act also provides for the ownership of an individual Apartment in a building and to make such Apartment heritable and transferable property.

3. Bye-laws and Rules of ‘Society’ are binding on all the residents and nobody can act as per his/her whims. Hence, if the Society decides to ban any objectionable commercial activities in the flats such as noise-making music classes or using the flat for catering or courier activities etc or not to rent out to bachelors etc, then all the residents have to abide by it. But if it is an Apartment, then owners can violate the Apartment Rules and the Apartment Body can just file a case in the Civil Court. However, while the Society disputes are resolved in a separate Court i.e. Co-operative Court dealing with Society matters and hence they are fast resolved whereas, the Apartment matters have to be taken to the normal Civil Court and hence they typically take years and decades to resolve. 4. When the building contemplates redevelopment after 25-30 years, the Society’s decision will be final and hence the Society members will have negotiation power with the builder at that time. But if in case of an Apartment, the consent of every Apartment-owner is required and hence it goes into an endless delay due to lack of a common decision acceptable to everybody. There are many instances in Mumbai wherein finally the dilapidated buildings had to be forcefully vacated by an eviction order from Court since they became unlivable. Thus, while the decisions are taken on a ‘majority’ basis in Society, the Apartment goes with rule of ‘Acceptable by Everybody’. So if the builder has retained even one flat in an Apartment, he will play a veto card in his favour at the time of redevelopment.

By admin|September 22nd, 2023|WHY A CO-OPERATIVE HOUSING SOCIETY IS BETTER THAN APARTMENT OWNERS ASSOCIATION|Comments Off

Essential Elements in a Conveyance Deed

Essential Elements in a Conveyance Deed

The term “Deed” means a written legal contract that binds the parties to its terms and can be proved in the court as evidence.

The term ‘Conveyance’ is used when there is transfer of ownership or legal title in a property from one person to another. Hence, a conveyance deed is a legal document between a transferor and a transferee, which proves that a title or ownership in the property along with all other rights related to the property have been transferred from one person to another.

It informs that the property is free from any restrictions and disputes. Both parties sign it and it can be produced in a court if any dispute relating to the agreement arises in future.

However, a conveyance deed is a wide term which not only includes a sale of the property but also other kinds of transfers such as gift, exchange, lease, mortgage, relinquishment and other transfers.

A conveyance deed is valid only when the property is sold for a valid consideration (usually money) except in the case of a gift deed which results out of love and affection.

It can be signed for either movable or immovable property.

A conveyance deed is executed in accordance with the legal provisions under the Transfer of Property Act 1882, Registration Act 1908 and Indian Stamp Act, 1899.

In order to be valid and acceptable in a court, a conveyance deed needs to contain some essential elements. For instance, it must:

* Establish exact boundaries of the property to avoid any dispute relating to land ownership,

* State that all the rights relating to the property have been transferred along with the property,

* Provide details regarding delivery and acceptance of the property,

* State all terms and conditions relating to the transfer,

* Be made on a non-judicial stamp paper and signed by both parties,

* Mention full names, addresses and other requisite details of the seller and the buyer,

* State that the property is free from any disputes and restrictions,

* Be signed by at least two witnesses

* Be in writing and notarized, and

* Be registered through the local registrar’s office by submitting appropriate registration fee. Registration is proof that the property is free from any disputes and has been transferred to the buyer permanently with a clean title. Once the registration is complete, the buyer becomes the absolute owner of the property and the conveyance process gets over officially. A lawyer and a real estate agent can help two parties compose, sign, and register a deed of conveyance during a transaction. The government obtains its revenue from the stamp duty and registration fees.

By admin|September 21st, 2023|Essential Elements in a Conveyance Deed|Comments Off

Need for Deemed Conveyance

A Co-Operative Housing Society is the owner of the Land & Building & individual member enjoys the ownership right of the Flat/ Shop based on the Share Certificate issued by the Co- Operative Housing Society.

A vast majority of Co- Operative Housing Societies does not have the Conveyance in their favour& hence are not the owners of their Land & Building. In this situation, even though each member of the Co- Operative Housing Society has paid full consideration and is in possession of the Flat/ Shop allotted, he does not enjoy the benefits of title ownership of the Flat/ Shop.

In case of Co-Operative Housing Societies formed long back, many of the Buildings are in dilapidated condition and their repairs are not economically viable. The best solution available for these Co- Operative Housing Societies is to go ahead with Redevelopment. The non- availability of the Conveyance & therefore free/ marketable Title affects the Redevelopment Process badly.

In case of Co-operative Housing Societies formed recently, the Redevelopment at the moment is not on the agenda. However the non- availability of the Conveyance and free and marketable Title may affect its present Revenue and may be a hindrance in Redevelopment process in future. Therefore Deemed Conveyance is in the larger interest of the Co- Operative Housing Societies (and their each and every member) who are denied their right of Conveyance by the Land- Owners & Property Developers.

By admin|September 21st, 2023|Need for Deemed Conveyance in Pune|Comments Off

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