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 Mumbai, Pune. Any aggrieved
society or apartment holder can get resolution from us in regards of the
same.
CONVEYANCE
AND ITS SIGNIFICANCE
Conveyance
is transfer the title of land and building by promoter/land owner in favour of
housing society by execution of Conveyance Deed. As per the provision
contemplated in Section 11 of Maharashtra Ownership Flat Act 1963, Conveyance is
the right of Co-operative Housing Society and the Duty of the property
Developer/Promoter to be executed within 4 months from date of Registration of
Co-Operative Society.
After
land and Building is conveyed in favour of Co-Operative Society and the title
of property is fully and finally recorded in the property card and other
revenue records then only the property becomes completely free and marketable.
As
per Housing Society Bye-laws the main objective of formation of the society is
to obtain conveyance and if conveyance is executed within 4 months from date of
registration of society case can be filed against the promoter /landowner of
the land to obtain the conveyance as per section 13 of MOFA 1963 failure to
give conveyance is an offence and the promoter/landowner of land can be
imprisoned upto 3 years or fine or both.
MEANING OF DEEMED CONVEYANCE:
Deemed Conveyance occurs when the builder/land owner
or the legal heir refuse to co-operate in handing over conveyance to the
Co-operative Society under the Section 11(3) of Maharashtra Ownership Flats
Act, 1963. In such case, the housing society has to appear before the District
Deputy Registrar, who will hear the case of both parties i.e. the housing
society and the builder and would pass the required order of Conveyance. It is
a remedial measure obtained by the society against the builder/landowner who
does not wish to convey the property since he/she sees a commercial gain out of
the property in future. This could include usage of potential FSI for their
personal gain.
Deemed Conveyance is final conveyance and the same can
be registered. Once the designated Competent Authority has passed the order,
there cannot be an appeal against it.
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 & PROVISIONS 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, Case of Deemed Conveyance can be filed against the
Builder to obtain the Conveyance before the District Deputy Registrar. As per
Section 13 of Maharashtra Ownership Flats Act, 1963, failure to give Conveyance
in favour of cooperative housing society is an offence and the Builder can be
imprisoned up to 3 years or fined or both.
ADVANTAGES
OF CONVEYANCE:
- Getting a proper and legal title in the name of
the Society.
- Retaining the additional FSI as per the
Government announcements.
- Property will be free and marketable.
- Society can raise the loans for repairs and
reconstruction by mortgage.
- Permission from planning authorities is possible
if the building has to be reconstructed at a later date due to
dilapidation of the structure due to age or by earthquake.
- Society can take the benefit of TDR.
- Members can receive compensation from Builder on
redevelopment of the building.
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.
- The Builder/Developer may mortgage the property
purchased by you as he is the legal owner and holding the Title Deeds of
the Property.
- The Builder/Developer may tap the benefits in case the
building is later taken up for redevelopment or if the plot has some
unutilized floor space index.
- The Builder may make profit by sale of open
spaces, gardens, terrace, parking space belonging to the Society.
- The Builder may demand a huge amount from the
Society, if Conveyance is sought by the Society after a lapse of many
years.
- The Builder may sell the entire Development
Rights and the Legal Rights on the land to third party and create a third
party interest in the Property and the Society will have to incur a huge
amount to clear the same.
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:
1. At
least 60% of the flats in that scheme should be sold.
2. A
Co-operative Society or Association of Persons should have been formed of the
flat-owners and at least 3-4 months should have been passed since then.
3.
There should be communication between the builder and the society or AOP
regarding Deemed Conveyance wherein the builder should have made a promise of
completion of conveyance or refused to do the same.
4 . A
Resolution must be passed
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.
- If the
Builder rejects or postpones the same, send him a legal notice through an
advocate requesting for the same.
- Even
then if the builder refuses, File an application with the Registrar of
Co-operative Societies together with all the relevant documents and 2,000
Rs. Court stamp fees.
- Self-attestation
all the copies enclosed (by the society)
- The
Competent Authority will assess the application and if any documents are
missing he will ask the applicant to correct the mistake within fifteen
days.
- Thereafter,
notice would be sent to the promoter and the land owners.
- After
receipt of the notice by the land owners and the promoters, the authority
will hear both parties in the first hearing and ask both parties to
produce further evidences in next hearing.
- Thereafter,
second hearing would be held and if the builder or landowners do not
attend both first and second hearing then the authority will pass an
exparte order.
- Thereafter,
the third and final hearing would be held and the authority would be held
and order would be passed unless a legal question is raised.
- Normally
the whole process is completed within a period of 6 months.
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:
- Application Form 7 to the District Deputy Registrar,
Co-operative Societies, affixing a court fee stamp of Rs. 2,000 on the
application
- Affidavit made before the Notary or Executive Magistrate
True copy of the Society Registration Certificate
- Stamp duty paid and registered agreement copy of 1
individual flats/ shops with Builder/Developer
- List of members in prescribed format
- Index-II for each member as issued by the Sub-Registrar of
Assurance
- Copy of the Development Agreement between land owner and
builder
- Copy of the Power of Attorney between land owner and
builder
- Copy of the legal notice issued to the original owner or
developer for doing conveyance
- Details of corresponding address telephone number etc. of
the original owner or developer
- Draft conveyance deed/ Declaration proposed to be
executed in favour of the applicant
Documents to be obtained from City Survey Office, for
submission:
- City (CTS) Survey Plan
- Property Registration Card or
- 7/12 extract of the Land
- Village form 6 (Mutation entries from Revenue Office)
Documents to be obtained from the Collector’s
Office, for submission:
- Copy of the Non-Agricultural Order
- Certificate of the exclusion from Land Ceiling Act (ULC)
Certificate
Documents to be obtained from the concerned
Municipal Authority Office, for submission:
- Copy of the approved plan
- IOD
- Commencement Certificate
- Building Completion Certificate
- Occupation Certificate (not compulsory)
- Property taxes paid
- Location plan of the building
Documents to be obtained from other professionals, for
submission:
- Search Report of the land issued by the
Solicitor/Advocate
- Title Certificate of the Property issued by the
Solicitor/Advocate (Search by minimum for last 30 years)
- Land Measurement Map/ Architect’s Certificate (layout
plan of the plot)
- Certified copy from Panel Architect about the utilization
of full FSI or FSI if any left in respect of the said property /Plot.
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.
- Preparation for Deemed Conveyance:
This
is a very important stage where the Managing Committee prepares the Members of
Co- Operative Housing Society for the Deemed Conveyance.
The
Managing Committee convenes a Special General Meeting (SGM) of the Society by
giving suitable notice highlighting the agenda.
The
Managing Committee places before the SGM the difficulties faced for obtaining
the Conveyance from the Land Owners/ Property Developers. The Managing
Committee explains the effects of non- availability of Conveyance to the
Members. The Managing Committee explains the Procedure & Benefits of Deemed
Conveyance to the Members.
During this SGM the following
Resolutions are typically passed.
- Resolution
for going ahead with Deemed Conveyance
- Resolution
for Appointment of Authorized Representative
- Resolution
for Appointment of Legal Consultant for Deemed Conveyance
- Resolution
for Per Member Contributions
2. Documentation for Deemed Conveyance:
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.
3. Legal Case for deemed conveyance:
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.
4. Registration of deemed conveyance:
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.
5. Transfer of property:
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.
GajananRahate
Mob: 9763040088E_mail:
[email protected]
