WILL – BY A MUSLIM

Advocate at south Bangalore | Property lawyers in bangalore | Rent agreement

Testamentary Document or a testament means a document made by a person whereby he disposes of his property but unlike a disposal inter vivo, it is unilateral and comes into effect on his death, and therefore, the document comes into effect on the death of the testator only.

A WILL or testament is defined as a ‘declaration, made in accordance with the formalities required by statute, of the intention of the person making it with regard to the matters which he wishes to take effect upon or after his death. Until then, it is an inchoate or ambulatory document which can be revoked, modified or substituted by another such document.

‘WILL’ is defined in Section 2 (1) of the Indian Succession Act, 1925 as the ‘legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death’.

A will must deal with the intention of the testator as to how his property is to be dealt after his death. If such an intention is disclosed and the property is also dealt with, it is a will, but not otherwise, by whatever name it is called, and provided it is executed as required by the Law.

A will has no standard form but generally the contents of a will fall under the following heads:

(1) Name, address, age, occupation and community of the testator;

(2) Clause revoking all previous wills and other testamentary documents;

(3) Clause appointing executors, and trustees.

There is no maximum limit prescribed under Indian Law as to their number unlike English Law where the maximum limit prescribed is four under Section 160 of the Supreme Court of Judicature (Consolidation) Act, 1925. 

But as far as possible the number of executors should not exceed three.

(4) Then will come the clause mentioning specific bequests followed by two clauses:

      (a) one containing general bequest; and

      (b) the second containing residuary bequest.

The last one is very necessary otherwise if any property is not generally or specifically dealt with, the testator may be considered as having died intestate in respect thereof.

(5) A clause is also inserted stating that the testator is in sound health and proper state of understanding though that clause has not much value;    

(6) The last clause is about the testimonium and attestation;

(7  Date of the will can be given in the beginning or at the end, the latter being the standard practice.

So far as Muslims are concerned, the provisions of Part VI of the Succession Act, containing Sections 57 to 191 and which deal with execution of a will, the construction of the provisions of a will and the different types of legacies do not apply to Muslims in India. Sections 211 and 212 of Part VI of the Succession Act also do not apply to Muslims in India.

Therefore, so far as matters such as power to make a will, nature of the will, execution and attestation thereof etc., are concerned, the Muslims in India are governed by the Muslim Personal Law. Under that Law, a Muslim can make a WILL orally or in writing and no form is required for such writing. If the Will is in writing it need not be attested. A person who is a major and of sound mind can make a will and he can dispose of his all or any part of his property by will.  However, there are two basic restrictions on the power of a Muslim to make a will namely:

1.a bequest to an heir is not valid except to the extent to which the persons who are heirs of the testator, at the time of his death, expressly or impliedly consent to the bequest after his death; and

2.Muslim cannot dispose of his property to a person who is not his heir in excess of one third part thereof, except in cases such as

(i) where such excess is permitted by a valid custom;

(ii) where there are no heirs of the testator;

(iii) where the heirs existing at the time of the testator’s death have consented to such bequest after his death; and

(iv) where the only heir is the husband or the wife and the bequest of such excess does not affect his or her share.

Any legacy bequeathed in such excess will abate according to the rules of the Law.A Muslim may change his will during his life time or cancel his legacy.A will may also become void if the testator, after making the will, becomes of unsound mind and continues to be so till his death.Similarly, a bequest which is contingent, or conditional or in future or is alternative would be void.

 

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SOCIETY CANNOT OBJECT ON RENTING TO BACHELORS

Leading advocate in Bangalore | Advocate at Koramangala | Real estate lawyers India

Right of equality is a fundamental right.  If a person has money, he had got every right, subject to restriction of acquiring property in Jammu & Kashmir, to purchase property.

At times a person may not need property for his immediate use.In such circumstances, he may sublet his property to a person of his choice.Certain times, restrictions are being placed by the Apartment/Flat Owners’ Societies that Flats cannot be given on Lease & License to Bachelors, Air-Hostess, working women etc.  The intention behind the same may be a noble one that there is every possibility of nuisance being created leading to disturbance caused to the resident members of the Society. However, one has to appreciate the fact that, if a person resides in the Flat or some third party resides, that would be the choice of the individual member. The Society,  in general,  cannot object to the use of the Flat by a member or by a person claiming right through the member.  The Hon’ble Supreme Court of India while delivering a Judgement in the case of Sanwarmal Kejriwal Vs Vishwa Co-Operative Housing Society Ltd., & others (Citation: 1990 Page 1 C.T.J. 364) has observed this aspect.

Let us examine the situation where the Society restrain the occupant from entering the premises or create hurdles with regards to use and occupation of the premises by the Licensee, paying guest, etc.,  At this juncture, first and foremost, a legal notice should be issued to the Society calling upon them to allow the Licensee, Paying Guest, Bachelor, working woman, air-hostess etc., to utilize the Flat as per their choice.  If there is no positive response for such legal notice, then the Member may approach to the appropriate Court of Law and obtain injunction. The member may also approach jurisdictional Metropolitan Magistrate’s Court against the Managing Committee Members of the Society for their mischief, criminal breach of trust, wrongful constraining.  If such a case is filed, there is every possibility that some amount of pressure may come on the Managing Committee Members of the Society; and then they may allow the Member to utilize the premises by the Licensee/Occupant.

Another line of reasoning given by the Office bearers of Co-Operative Housing Societies, for restraining the working woman, bachelor, air hostesses, etc., from utilizing the Flat as Licensees as paying guest is that, if such persons are allowed to use and occupy the flat, they may not have respect for the laws of the land.  They may create nuisance, which will be detrimental to the interest of the other members of the Society.  Herein, one can observe and opine that, the Co-operative Housing Societies cannot act on the principle of apprehension and in case when such nuisance is caused to the Society, the Society has always an option and choice to initiate appropriate action against such member and/or the Licensee, air hostesses, working woman, bachelor, etc.

It is common knowledge that in number of Societies, the laws of the land are violated more rather than comply with in letter and spirit.  How many Societies can vouch for the fact that the members of the Society have not encroached upon the open space, there is no misuse of Niche, drying space, there is no water tank in the flat, there is no box grill.  Practically, every one is aware that the Laws in Society are violated on a number of occasions.  We have ridiculous laws, which stipulates that the person handling the cash of the Society is supposed to give security to the Society as if such person is likely to run away with the negligible amount of cash in his possessions as compared to the cost of the Flat, which legally belongs to the Society and the member gets limited right to use and occupy the Flat.

The member, for no reason or cause, is simply harassing by not allowing his Licensee to utilize the flat.  If he deems fit, he may also take up the above said point while issuing legal notice by highlighting the fact that in a number of Societies, lakhs of rupees are demanded by the Society at the time of transfer of Flat, in excess of the provisions of Bye-laws of the Society under the guise of ‘Voluntary contribution to the common amenities fund’.     

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PURCHASE OF PROPERTY - POST REGISTRATION ACTIVITIES

Leading advocate in Bangalore | Advocate at Koramangala | Real estate lawyers India

Post-registration activities are the steps to be undertaken by the Purchaser after registration of the sale deed. There are certain requirements to be fulfilled in order to get valid title and to exercise ownership over the immovable property by the Purchaser.

The following are the essential activities required to be carried out by the Purchaser after registration:

1. Obtain Original documents:The first and the foremost activities to be performed by the Purchaser is to obtain all the original documents including link/connected documents of title from the Seller and to compare them with the Photostat copies which the Purchaser’s advocate would have scrutinized earlier.  If the Advocate calls for the other original documents or certified copies, ensure production of the same. It is always advisable to apply for Certified copies of the sale deed.

2. Encumbrance Certificates:It is also necessary to register the application for updated Encumbrance Certificate in the Sub Registrar’s Office on the day of registration itself, which shall be from the date of entering into an agreement to the date of execution of the sale deed.

3. Possession of property:Physical possession of the property is of vital importance. It is advisable to inspect the property a day ahead of registration to make sure that the property is as per the sale agreement. One of the clauses to be incorporated in the sale agreement is that the Vendor shall hand over vacant possession of the property and the purchaser shall receive all the keys of the property at the time of registration.  If need be, one may change the main door lock itself.In case of vacant sites, it is necessary to put up a display board with the wordings “This property is owned by “so and so”. Tresspassers will be prosecuted.” Fencing of sites or putting up compound walls, though expensive, is preferable.  Periodical visits to the site are a must to detect any a kind of encroachment.

4. Transfer of Khatha and Khatha extract of the property:After registration of the sale deed, the purchaser must ensure that the Khatha in the records of the local bodies like Gram Panchayat, CMC or the City Corporation is transferred in the name of the Purchaser.  For such transfer, it is necessary that both the buyer and the seller have to sign the application for transfer of Khatha, which is done simultaneously while signing the sale deed. This is necessary to avoid unnecessary disputes and complications in future.

Duly filled Khatha Transfer applications have to be presented before the concerned Office, along with a copy of the sale deed and receive necessary acknowledgement.  At the time of execution of the sale deed, the Vendor has to sign certain documents, such as:

-Khatha Transfer application

-Letter for transfer in favour of the Purchaser of Statutory deposits for electricity meter

-Letter for transfer in favour of the Purchaser of Statutory deposits for water, sanitary connections

-In case of second hand sale of apartment, letter for transfer of Apartment Membership and Corpus fund has to be obtained by the Purchaser from the seller.

The following is the procedure involved for transfer of Khatha:

-To present an application in the prescribed form in the Office of the City/Town Municipalities or Corporation having jurisdiction along with the supporting affidavit giving all particulars required in the application. In the affidavit, it is necessary to declare that the Purchaser is the present owner.

-To enclose Certified copy of the sale deed with the latest tax paid receipt of the property.

-To furnish Khatha Certificate standing in the name of the Vendor.

-The sketch showing the locality giving particulars of the ward or zone and name of the street, etc., and deposit the fee prescribed.

Local bodies transfer Khatha in the name of the Purchaser after collecting a transfer fee, which is generally 2% of stamp duty paid on the sale deed and issue written confirmation of transfer in the name ofthe Purchaser.  While transferring the Khatha, local bodies reassess the property and issue assessment notice in the name of the Purchaser. Further, tax paid receipt should be in the name of the new owner/Purchaser.

For the properties falling within the jurisdiction of either BMP or BBMP, Computerised Khatha Certificate and Khatha Extract will be issued. Khatha Certificate is an authenticated document to prove the ownership and possession of a particular person over the immovable property. While Khatha Extract will be issued this reflects the actual site area and built up area, if the building is existing.  Further, property tax required to be paid will also be reflected in the Khatha Extract, which will be arrived at after reassessment.

5. Building License and Plan: If you are planning to make any material alterations or propose to construct a new building on the property acquired by you, it is necessary for you to get the license and plan approved by the local body within whose jurisdiction your property falls.  This can be obtained only after depositing the prescribed fees.  In order to get the License with approved plan from the authorities, the Khatha of the property must stand in your name in the revenue records of the concerned local body and up-to-date taxes ought to have been paid.  The normal procedure for securing License with approved building plan is to obtain 10 sets of blue prints of plans from the licensed architect/building engineer.

Construction has to be commenced after the license is obtained and should be completed within 2 years from the date of obtaining the license and approved plan, which will be stipulated in the Plan itself. However, you can get an extension if the construction could not be completed within the stipulated period. Once the construction of the new building is completed, you must get such a house/building assessed afresh and pay taxes as assessed by the concerned revenue authorities.

6. Electricity connection:  After Khatha is transferred in the name of the present owner, he has to ensure whether the statutory payments/deposits in respect of the property including the electricity charges are paid within the stipulated time.

If fresh or new electricity connection is to be obtained, it is essential to enlist the services of a Licensed Contractor.  The amount of deposit to be made depends upon the requisitioned load or number of kilowatts required.  In case the property is already serviced with the electricity connection, an application has to be presented by the Purchaser in the prescribed form before BESCOM (in Bangalore)/concerned Electricity department authority having competent jurisdiction, enclosing an affidavit declaring that you are the present owner and by filling up the particulars required in the application along with the consent letter of the previous owner for such transfer.  Subsequently, the electricity connection/meter will be transferred in the name of the present owner.

7. Water and Sewage connection: The purchaser should also verify the statutory payments/deposits made by the previous owner and collect such deposit receipts from him. For fresh connections, it is desirable to enlist the services of a qualified plumber.  In case your property is already has water connection/s, then same procedure as required for change of electricity connection has to be followed.  However, the documents are to be presented before the concerned Municipal Administration authorities connected to Water and Sewage departments.

8. Corpus fund and club membership: If the Purchaser is intending to purchase an apartment, it is also necessary that the Vendor has to issue a letter for transfer of corpus fund and club membership in the name of the Purchaser.

9. Bank Loan: In case the Purchaser wants to avail Bank loan, then the Purchaser is required to deposit all the relevant title documents in original with the Bank and to obtain endorsement to that effect from the concerned Bank. However, it is advisable to keep Photostat copies of all such documents intended to be deposited with the Bank for personal records.

Thus, mere execution of the Sale Deed does not automatically confer the title in favour of the Purchaser. A person can enjoy legal and peaceful possession and enjoyment over the Property only after ensuring that the post-registration activities are fully completed and satisfactory complied with.

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SITE BUYERS BEWARE

Leading advocate in Bangalore | Advocate at Koramangala | Real estate lawyers India

Agricultural lands cannot be directly used for residential purpose. They need to be converted for residential purposes, by paying conversion charges. The Special Deputy Commissioner is the competent authority to convert the agricultural land into non-agricultural purpose. Revenue site is a site that is formed on the agricultural land into non-agricultural purpose. Revenue site is a site that is formed on the agricultural land without proper approval under the relevant law i.e., Karnataka Land Reforms Act, Karnataka Land Revenue Rules and also as per other provisions of law.

No building shall be constructed on an agricultural land without obtaining conversion and other approvals from the concerned authorities. Residential site should be formed only in the residentially converted land, such a land should be in the residential zone as per the zonal regulations for getting the residential conversation.

As per zonal regulation of comprehensive development plan, the green belt area is only for the agricultural activities. Non converted land continues to be an agricultural land, and there are various restrictions on sale and purchase of agricultural land. In Bangalore only Bangalore Development Authority (BDA) is the competent authority to approve the layout and to get this approval the layout; road width, residential area, civic amenities, other amenities to be fulfilled. The Bangalore Metropolitan Regional Development Authority (BMRDA) is the regulatingauthority to approve sites on the outskirts of the Bangalore. All around Bangalore, it is a very common practice for people to buy a piece of agricultural land, which is more popular as “revenue site”, without knowing the hassles involved in the buying of such sites. Consequently local agents, aided by certain landlords also misguide buyers to buy revenue sites.

Middlemen ride

The middlemen and the local brokers have perfected their art of cheating the innocent people by selling the revenue sites. Generally, a nominal sum is paid as a token advance to the landlord and a general power of attorney is obtained; and then, the search for the innocent purchasers begins.  The middle men, like double edged razors, hike the price of the land and at the same time, do not properly settle the accounts with the illiterate and ignorant land  owners.

Then, the said brokers who consider themselves above law, form layouts on agricultural lands without sanction, approval, planning, design etc. To increase the saleable area of the “sites”, they encroach on roads and as a result the roads get narrowed down. These layouts are formed without civic amenities and facilities, since there is no intention of providing them. However, the brokers know the art of marketing. They make colorful brochures with photographs of certain parts of Bangalore and paint an attractive picture. Some of them download the foreign photographs of houses from internet for their brochures. Better the presentation, deeper the deceit, which very few people understand. After the process, the broker has gained money, and the purchaser has bitter experience. The said agents in league with brokers will register some imaginary sites at the sub-registrar’s office using their clout with the sub-registrar.

Ancestral Property

In the recital of a sale deed, it is customary to mention how the seller has acquired his title, interests and rights to the immovable property from origin to the end. In case of revenue sites, the brokers at the office of various sub-registrars have devised a very ingenious method to hide this fact. They merely mention in the recital that the property is the “ancestral property” of the seller. In this way the property passes on from the GPA holder to the purchaser.

There are several instances where the land notified for acquisition and the land granted for schedule caste people have been converted into sites, where the purchaser of such a site would not get any title of the property. Then the law stipulates that certain lands, when granted to the schedule castes, will revert to them if purchased by any one else.

GPA transaction

Generally the brokers will take GPA from the landowner for the entire land and register in favour of the purchaser; most of the revenue sites are registered under the strength of GPA. Very few people care to check the legality of the GPA executed by the original vendor. Nobody bothers to find out whether the GPA is registered or not, whether the executor of the GPA is alive or not. If the executor of the GPA is not alive the GPA transaction is totally invalid. A joint GPA executed by two owners becomes invalid if one of them dies.

Form 9 and Form 10

Originally, a property falling under the village Panchayat area alone has the genuine site status. Form No.10 is for a house coming under Gramathana village Panchayat area and Form No.9 is for a vacant site coming under Gramathana village panchayat area. The middlemen and some of the revenue officials have made bogus Forms No.9 and 10 and have registered immoveable properties in favor of innocent purchasers. Earlier, when the Urban Land Ceiling Act was in force, thousands of revenue sites were registered by merely mentioning in the sale deed the description as one square asbestos sheet house’.  This was mentioned just to avoid getting the relevant clearance under the said Act. After the Urban Land Ceiling Act was abolished the term ‘one square asbestos sheet house’ was also removed from the real estate agent’s dictionary’.

It is not legal to form layouts and sell the sites in the agricultural land/green belt area,, even after selling all the sites; RTC (Record of Rights, Tenancy and Crop Inspection) will be in name of the original landowners. 

The Agent being a GPA holder will sell the sites, being “ancestral properties” to the innocent purchaser. The numbers assigned to these sites will never match with the survey numbers assigned to these sites will never match with the survey numbers assigned to these lands by the government. The purchaser of the revenue site doesn’t get the title of the property. What is purchased is an imaginary site only. If, however, the original owner is good then the purchaser can enjoy the property, till the government regularizes such revenue sites.

Difficult to get loans

If the title deeds are not clear and does not establish marketable title, it is difficult to obtain bank loans for construction by mortgaging the sites. Generally, these sites are situated on the city outskirts. There will be no proper roads, electricity or water supply. There is no scope for immediate development occupation. After all this, if the prices of the sites appreciate over a period of several years, the original landowner will appear from nowhere and start cultivating the area. He will remove all the boundary stones laid by the broker. The purchaser will then find it difficult to identify his property. In certain cases the GPA holder sells the same sites to several persons and collects money from all of them. Consequently, marathon litigation awaits the purchaser. The laws are so complex that they give rise to multiple interpretations.

To add to his woes, the Court fees, which are very high, drain his already depleted resources to forget everything and be done with it.

Only a fraction of the deceived purchasers feel that the laws are helpful under such circumstances.  It is hoped that people will exercise utmost care and restraint, when they go about purchasing “revenue sites”.  A little caution in time will save lots of botheration future.

Instead of purchasing a 60 x 40 site a purchaser can as well as go for a title within the city limits or BDA formed sites or BDA approved sites. Moreover, all the sites formed in and around Bangalore must have BDA or BMRDA approval.

The buyers, therefore, instead of wasting their hard earned money on revenue sites and spending sleepless nights, would rather be wise to consult qualified legal experts before investing their well earned money.

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DUTIES OF A FLAT PROMOTER

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In order to regularise the promotion, construction, sale, management and transfer of ownership of flats, the Karnataka Ownership flat (Regulation of the promotion of construction, Sale, management and Transfer)Act 1972,was enacted by the Government of Karnataka. The Act popularly known as Karnataka Act 16 of 1973 was first published in Gazettee  Extraordinary on 23.07.1973, received the assent of the president on 29.06.1974, and came into force on 01.04.1975, as per notification No.FD/KHB/75 dated 06.03.1975. The Act details the rightsand responsibilities of promoter and purchaser of flats.

A flat is defined in the Act as “a separate and self contained set of premises used or intended to be used for residence, or office, or shop, or godown, and includes a garage the premises forming a part of a building”.

Promoter is a person who constructs or causes to be constructed a block of building of flats or apartments for the purpose of selling some or all of them to other persons or to a company,co-operative society or others.Thus a promoter need not construct a flat. He may get them constructed through another builder.  Such construction is for selling some or all of the flats.  Since he receives advance amounts from proposed purchasers and will be in possession of the land not owned by him, the Act prescribes certain obligation on promoter.

General Liabilities

Section 3 deals with the general liabilities of promoter.  The promoter has to disclose the nature of his title to the land on which the flats are constructed.  Such title has to be duly certified by an advocate who has standing practice of not less than seven years.  He shall produce the original documents of his title to the property.Advocates certificate of his title, encumbrance certificates, documents relating to the title, the plan and specifications of building proposed, before the intending proposer.Some of the promoters refuse to give copies of the title documents to the proposed purchaser which is against the law and not ethical.  He has to allow inspection of plans and specifications of the property of the building approved by local authority, disclose the nature of fixtures, fittings, amenities including provisions for lift.  If the promoter himself is the builder shall disclose the prescribed particulars of design and materials used for building.  If the promoter is not the builder,he shall make available for inspection all agreements entered by him with architects and contractors related to design and materials used for construction.

Promoter has to prepare and maintain a list of flats with their specific numbers and names and complete address of persons who have agreed to purchase flats with consideration amount charged and terms and conditions on which flats are sold and shall inform the proposed purchaser in writing the date by which the possession of the flat will be given.He has the responsibility of informing in writing the nature and constitution of organisation to which title being passed with terms and conditions.

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He should not allow persons to enter and take possession of flats until completion certificate wherever required is obtained from the competent authority.He is duty bound to disclose the full outgoings including ground rent, municipal taxes, tax on income, water and power charges and any subsisting mortgage.If the purchaser demands, he has to furnish the true copies of all documents of title, advocates certificate, encumbrance certificates/documents, approved plan and specifications, list of furniture, fixtures, amenities, list of flats with numbers with the name and address of proposed purchasers, the price at which the flats are sold and also terms and conditions of such sale, provided the purchaser pays the charges for such copies.

Agreement

The promoter may receive the advance amount not exceeding 20% of sale price, but before accepting such advance, he has to enter into an written agreement with the purchaser and such agreement shall be registered.The sale agreement should contain the complete details of the building to be constructed, and promoter obligation to comply with the approved plans and specifications, the date by which the possession will be handed over, the agreed consideration and mode of payment of the consideration, nature of owners’ organisation proposed, details of common areas, facilities including limited common areas and amenities, and percentage of undivided interest.  But most of the agreements are one sided in favour of promoters/builders.

The copies of advocates certificate and plan and specification of the flat to be sold has to be enclosed to the agreement.

Promoter as trustee

The promoter receives various amounts from flat purchasers like advance, deposits, towards share capital to form the society, or company, ground rent, water and power charges, taxes. He shall maintain a separate account of such advances and deposits in any bank.He shall hold such money as a trustee and disburse the moneys towards the intended purposes.

The promoter who is in possession of flats shall pay all outgoings on flats until he transfers flats to persons who have purchased or to an organisation of such persons.

Changes in plans and specifications

After the approved plans and specifications are disclosed / furnished to the proposed purchaser, any alterations in the structure of any particular flat shall be done only with the prior consent of the proposed purchaser.

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If any alterations have to be made in the structure of the building the consent of all proposed purchasers is required.  The building shall be constructed in strict conformity with the approved plans and specifications.

Any defect in the construction of the building, materials used in the construction or unauthorized change in construction has to be brought to the notice of the promoter within a year of taking possession, and the promoter shall wherever possible rectify such defects free of cost.  If rectification is not possible the aggrieved person is entitled to receive reasonable compensation. State government will designate an officer not below the rank of Superintending engineer to settle the disputes in connection with defects, reasonable compensation and rectification. The aforesaid person may approach such designated person within two years of taking possession on payment of specified fee (Rs.100).  The decision of such officer shall be final.

Delay in handing over possession

The promoter has to handover the possession of the flat on to the agreed date.  Such date may be extended on agreement.The promoter may also not in a position to handover the possession of the flat for reasons beyond his control.

If the promoter fails to deliver the possession of flat on the agreed or extended date and by another three months thereafter of such agreed extended time the proposed purchaser may claim refund of the amounts paid.Similarly in case of non delivery of flats on account of reasons beyond the control of the promoter, and if such reasons exists after three months from the agreed date of handing over possession, the proposed purchaser may claim refund of the amounts paid.

In both the cases the promoter shall refund the amounts received with simple interest at 9% p.a. from the date of receipt till the date of payment.Such amounts and interest shall continue to be a charge on land and flat but any earlier encumbrances have priority.

Mortgage

The promoter shall not create any mortgage or charge on the flat or land after the execution of the agreements without previous written consent of proposed purchaser.Any mortgage/charge created without previous written consent of proposed purchaser shall not affect the right and interest of proposed purchaser.

Formation of society or company

The promoter has to take steps to form society or company consisting of owners.  The promoter shall submit an application to the registrar for registration of organisation. Such application shall be submitted within four months from the date on which minimum number of persons required to form such society or company have taken flats.The promoter shall represent the flats which are unsold.

If the owners opt to submit to the provisions of Karnataka Apartment Ownership Act 1972, by submitting a deed of declaration, the promoter shall inform the registrar of co-operative society as soon as possible after the date of which at least five owners have filed the deed of declaration.

Conveyance of title etc.

The promoter shall take steps to complete his title and convey to the organisation, which is registered either as co-operative society, or company or association of flat owners, his right, title and interest in the land and building as per the agreement.  If the agreement provides no definite date for conveying the title to the organisation/society,he shall convey his title within four months from the date of which the organisation was registered and association of owners is duly constituted.

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The promoter will be very co-operative and extend red carpet treatment to the prospective purchasers at the time of entering into an agreement and receiving advance money, thereafter it would be very difficult to meet any important person at promoters office and the purchasers will be at the mercy of receptionist. 

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LEASE DEED AND TYPES OF LEASE

Leading advocate in Bangalore | Advocate at Koramangala | Real estate lawyers India

A Lease is a transfer of an interest in an immovable property which is the subject of the lease and that interest is the right to occupy and use the property for which the lease is given for the period and on the terms and conditions agreed upon between the parties.

The provisions or contents of a Lease deed regarding the  date and place of the deed, the parties, the recitals, testatum, description of property are more or less the same as in the case of a Sale Deed. The date of the lease is not necessarily the commencement date of the term.  It may commence at a future date  also, in which case it is called a ‘future lease’.

With regard to the recitals, it may be stated that it is not necessary to include all sorts of recitals tracing the title, as in SaleDeed, and in fact, it is sufficient to recite that the Lessor/Owner is absolutely seized and possessed of the property agreed to be leased and he has agreed to demise the same to the Lessee/tenant on certain mutually agreed terms and conditions, besides other covenants mentioned in the said Lease Deed.

In the operative part, the word used for indicating transfer, is ‘demise’ or ‘grant by way of lease’ and no other words are necessary.

The commencement of the lease and the duration of the lease – are known as ‘Habendum’.

The amount of premium or rent is known as ‘Reddendum’.

Infact the ‘Reddendum’ creates an implied covenant to pay rent and the word ‘demise’ contains an implied covenant of title or for quiet enjoyment/use.

The Lease deed should invariably contain (i) covenants by the Lessee/tenant; (ii) covenants by the Lessor/Owner; (iii) special terms and conditions agreed upon between the parties; and (iv) the usual covenants, for title, against encumbrances, for quiet possession and for further assurances.    

In Leave and Licence, the Owner of the property does not transfer any of his rights in respect of the property.However, in case of Sale, Gift, Exchange, the owner transfers his entire rights, possession and ownership.  While, in case of Lease, the owner simply part with his right of possession, but retains the right of ownership. 

The person who transfers the possession (owner) is called as Lessor and the person who get the right of possession is called as Lessee. The consideration paid by the Lessee is known to be either rent or premium. In English Law, the transfer of interest in the property is called demise.  The words ‘Landlord’ and ‘Tenant’ are also used instead of the words  Lessor and Lessee respectively.

Section 105 of Transfer of Property Act defines about ‘Lease’.  Without bothering about the legal jargons, we shall understand some important ingredients of Lease.  They are:-

1. It involves only transfer of right to use the property (possession).

2. The period of lease should be certain along with the dates of commencement and expiry.

3. The consideration for lease shall be periodical payment termed as rent or premium or both.

There is a  distinction between rent and premium. While the premium is a consolidated amount payable in lump sum, and where as the amount payable on certain intervals say either monthly or quarterly, during a pre-decided tenure, is known as rent.  Even after the grant of lease, the Lessor/Owner remains the Owner subject to the rights of the Lessee/tenant and assumes full ownership again when on the termination of the lease, the Lessee’s rights revert back to the Lessor/Owner.  That is why the rights during the lease period is called as ‘Reversionary rights’ or ‘reversion’.  All his rights as Owner including the right of such ‘reversion’ can be a subject matter of sale or other transfer to any other person. 

In other words, lease is form of encumbrance on property in the form of a right to possession and enjoyment  of property owned by some other person.  This is legal separation of ownership from possession. There are different types of Lease depending upon the duration.  Perpetual Lease, Tenancy at will, Tenancy by sufferance, Tenancy by holding over, periodical Lease and Lease for fixed term.

English Law does not recognize the Perpetual Lease, but Indian Laws have given legal validity as per Section 105 of the Transfer of the Property Act, according to which lease may be for a certain time or in perpetuity.  Tenancy at will is lease, which is terminable at with at pleasure of both the parties.  If a person is lawfully in occupation of a property, he is not a tress passer and does not become a tenant holding over and such tenancy is by sufferance.  There is a fine distinction between tenancy by sufferance and tenancy by holding over. A tenant who continuous to be in possession of the property after determination of lease without consent of Landlord is tenancy by sufferance.  In contrast, if it is with the consent of the Landlord it is a tenancy holding over.  Section 116 of the Transferof Property deals with tenancy by holding over.  The determination of the lease means  termination of the lease period.  The Landlord, after such termination may consent for continuance of the lease by accepting the rents though without any agreement.  Periodical lease is for certain period which is determinable by due notice.  The lease for fixed period is granted for certain period which may be long or short.

The transfer of Property Act has prescribed the mode of computing lease period.  The Section 110 is the relevant section. When the lease is limited by time and said to commence from a particular day. Such particular day should be excluded while calculating the lease period. But this rule do not have application in month to month tenancy and there is no need to omit the first day of the month while calculating the lease.

If the lease is mentioned year or years and if the agreement does not contain any condition of commencement of lease, the lease will run during the full anniversary of the day from which such time commences.  If the agreement does not mention the date of commencement, the lease starts from the date of execution. In general, the day of the commencement has to be excluded, while its anniversary is to be included in calculating the lease period.

The Transfer of Property Act provides the procedure for determining the lease period; if the agreement does not specifically contain any such condition.The lease for agricultural or manufacturing purpose is year to year.This can be termination by six months notice by either of parties.The lease for any other purpose is month to month terminable by fifteen days notice by either of the parties.  The period mentioned in the notice commences from the date of the receipt of the notice.The notice should be in writing and signed by the Lessor or lessee or his representative. The notice may be sent by post (Registered post for purpose of records) or may be delivered personally to the other party or his family, servants against acknowledgement. In case the delivery by post or in person is not possible, the notice may be affixed to conspicuous part of the property.  The notice of fifteen days stipulated should end by the end of the tenancy month. 

Any lease of immovable property for any term exceeding one year has to be made only by a registered deed and lease less than one year my made by a registered instrument on unregistered or oral agreement followed by delivery of possession.  However in all cases, the agreements attract stamp duty, which varies from state to state and also depending upon the lease period and amount.  In simple words, payment of stamp duty is must and registration of instrument is optional in case of tenancy of less than one year and is a must if it is more than one year.

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