Saturday, July 21, 2012

Why should an apartment association be registered?

From the desk of Daniel & Daniel Today, having an apartment associationhas become one of the important aspects of an apartment functioning. Perhaps, there are various apartments which do not have their association registered. Due to the paperwork and initiative issues most of the apartments prefer staying unregistered. Anunregistered apartment association can cause adverse effects to the community. Importance of a registered apartment owner’s association: Since an apartment consists of a community with quite a number of people, there are increased chances of various issues piping up. In order to let peace prevail, an apartment owners association can help in solving all the related matters of a society. The issues in an apartment can be of the residents or the managing committee. Problems like the delay or disagreement to pay the maintenance, improper facility maintenance and others are common in every apartment. Also in an apartment association, it is quite difficult for the members to abide all the formalities and convince the community members with all the rules and regulations. Other issues like voting and attending the meetings are not clear among all the community members. In order to solve all of these issues, an apartment owner’s association is important in every apartment. The impact of an unregistered apartment association: As mentioned earlier, there are several issues which an apartment is exposed to. Most of the apartment members try and sort out the problems on their own or approach a court. However, they suddenly realize that their apartment association is not registered. Having an unregistered apartment association makes it difficult for the community members to file a case in the court or face any legal battles. The matter worsens even more when it is a large unregistered apartment. An apartment owners association is nothing but a group of owners of apartments acting in accordance with the bye-laws of the association. The association members can be either the apartment owner or the occupant. An apartment owner’s association registration process: An apartment owners association is formed with a minimum of seven members followed by a memorandum. The memorandum consists of the name of the society, the objects, the names, addresses and the occupation of the committee members. The bye laws, which are the most important part of forming an apartment association, are declared to every member of the community. The registration of the association is done by the filing of the bye-laws with the registrar of societies. Once the memorandum and the bye-laws are in accordance with the legal requirements, an apartment association can be registered easily. One should ensure that the memorandum and the bye laws are printed or typewritten with a signature of each member. The registration process involves nominal charges. Following are the points to be considered in order to register an apartment owners association; • Fill and submit a memorandum which consists of the name of the society, address of the owners, names of the owners, objects of the society and the occupations of the owners and the authorities. • File the precise apartment association bye-laws. The bye-laws can be changed accordingly by the members due to various circumstances. • The name of the society if not wanted can be changed at the time of registration. It is advisable that you follow and refer the bye-laws before choosing a name for your society. • The maximum time limit to register the society is just three months. Only in case of serious situations the time can be extended. • It is advised that an association has to register immediately as all the bank related operations can be done easily. To Register Your Apartment Owners Association You can Contact:- Daniel & Daniel: Helpline:- 9840802218.

Saturday, February 4, 2012

Title Verification On Immovable Property

Rapid industrial development and unbridled urbanisation have seen the demand for land for development of residential, commercial and industrial complexes, and even for farmhouses rise tremendously, resulting in sky-high prices. Alienation of real estate is specially taking place in villages situated within a radius of 1-20 km of urban industrial and commercial centres. Land parcels are generally purchased through socially advanced, often unscrupulous persons, or rich agriculturists possessing sufficient muscle power and skills to persuade, deceive and exploit the poor farmer. As a result, widespread deceit and exploitation is seen in almost all land alienations. It is, therefore, essential to have a fair idea of the guidelines of investigation of title.

Title is a legal term; it means the ownership right to property. When search is conducted unto the property of the person who owns it, it is called the Investigation of Title.

Investigation of title commences with the advocate commissioning searches in the offices of the concerned sub-registrar, to find out all documents that are registered relating to the property for the last 30 years. If the relevant documents are not available from the above office, the owner’s advocate is asked to provide copies of the same. Enquiries should also be made from the Municipal Corporation to ascertain whether there are any arrears of property taxes or water charges in respect of property.

In addition, the advocate issues a notice in local newspapers inviting claims in the nature of mortgage, charge, easement, etc., against the property to be submitted within a specific time with supporting documents. The notice states that if no claim is received, it would be deemed that no such claim exists or it shall be deemed to have been waived. Such a clause is not binding on the real claimants because the notice may not come to the attention of such person, however in case of dispute such notice will support buyer’s contention that he is a bona fide purchaser for value without notice of claim. Site inspection through a surveyor for ascertaining the possession and boundaries of the land should be conducted.

The investigation is carried out broadly to ensure that the property is indeed in the name of the person selling, is free from liens, mortgages and encumbrances, that the property tax has been fully paid up to date and that the property is not engaged in any legal conflicts. The owner of the property/land has to prove this satisfactorily or else there is no chance at all that any buyer/creditor would take the risk & invest his funds.

In the legal term, land has a vast meaning, however, for the time being we are considering limited meaning of land. The land means surface of the ground and everything on or over or under it. Land can be classified as per its use or as per its geographical nature

The word “Title” generally used in the context of property means a right in the property. It connotes bundle of rights subject to prohibitory or regulatory statute. Such rights are capable of being transferred.

In the case law reported in Supreme Court Cases ,

Can bank Financial Services Vs custodian 2004(8) SCC 266, it was held by Supreme Court that:-

“The Title in an immoveable property is the means whereby a person’s rights to property in presenti is established and does not include a bare expectancy to get such right in due course of time.”

i.e. Title means a present right or interest in an immovable property capable of being transferred.

The expression Title conveys different forms of a right to a property, which can include a right to possess such property.

Title in immovable property can be conveyed only if the transferor posses such title.

A person cannot convey any title, which he himself does not possess .This was decided by the Supreme court in case of “Syndicate Bank V Estate officer, AIR 2007 SC 3169”

Title in a property cannot exist in two different persons having rival claim.

Marketable title to property :-

The term ’marketable title’ title means a title free from reasonable doubt.

Where there is reasonable decent probability of litigation, it would be considered as the title is doubtful.

Further a public notice in local newspapers should be given about the intention of sale as also calling for any objection before the sale is finalised.

Material defect in property is different from material defect in title.

A right of way / easement may not be a defect in title of the property but would become the material defect in the property. Disclosure of material defect in property is the duty of the seller:-The seller is duty bound to disclose to the buyer. Material defect in the seller’s title makes the sale deed voidable.

Material defect in property if not disclosed amounts to fraudulent transfer. –Under Section 55 of the Transfer of property Act, omission on the part of the seller to make disclosure as are mentioned under section 55(1)(a) of the Act, is fraudulent. But before there is such breach it must be shown that the buyer could not with ordinary diligence, discover such defect.

It is well settled that where the buyer has the means of discovering the defect of the title, there can be no breach of section55 (1) of the Act.

The reported case laws are Dr.Gwashalal Vs Kartar Singh A.I.R 1961 ,J.K. 66and Jhamaklal v Mishrilal AIR ,1957 MB 23.

Existence of mortgage makes the title incomplete. – The existence of the mortgage over the property makes the title thereto incomplete.

It is well settled that encumbrance on the property is material defect in the property.

Possessory title in the property – A possessory title under a registered agreement to sale along with “No Objection Certicate” of the seller, could be very well to the extent of furnishing the security but cannot confer full fledged title in the property.

In terms of section 12 B of the Income Tax Act, title must pass by any modes mentioned therein, namely sale exchange or transfer.

In the case of Alapati Venkataramaih Vs commissioner AIR 1966 SC 115 Supreme court held that the contention that a possessory title in terms of section53A of the Transfer of Property Act would not sub serve the requirements of an effective conveyance of the capital assets, as delivery of possession of immoveable property cannot by itself be treated as equivalent to conveyance of immovable property.

By taking proper care as above, the purchaser can get good and marketable title to any immoveable property.

While buying flats in co-operative societies, certain precautions should be taken such as:

1. Verifying the name of the member on the share certificate, electricity, telephone and maintenance bills and receipts;

2. Inspection of the records of the society for ascertaining whether:

a. The building has an occupation certificate;

b. Any lien/charge/claim has been registered with the society;

c. All dues in respect of the flat have been paid to the society;

d. The land has been conveyed to the society;

e.There are any disputes/litigation in relation to the flat;

The society has no objection in transferring the flat. (Although the new co-operative society bye-laws do not require obtaining a no-objection certificate, societies have not adopted the same, hence the requirement of obtaining the no objection continues to exist).

3. Ensure that the transferor is in possession of the flat and has the original agreement/s for sale and share certificate;

4. Verify that proper stamp duty is paid on the original agreement/s for sale and the agreements are registered; The following should also be considered:

a. Whether the shares are transferor’s self acquired property or acquired/held by the transferor in as a Karta of a Hindu Undivided Family;

b. If the transferor is a nominee of the deceased, whether consent of all the legal heirs of the deceased has been obtained;

If the transferor is a partnership firm, verify the partnership deed to ascertain if the partner/s disposing off the shares are authorized;

c. If the transferor is a limited company, verify that proper resolutions are passed approving and authorizing execution of the transaction and whether any winding up petitions are pending against the Company.

The process of investigation of title is laborious and filled with setbacks. The searches at the Sub-Registrar’s offices are in a dismal condition and the records are not maintained properly. Replies from the Municipal Corporation, are also not easily provided. Therefore to find out the correct position of the property is challenging.

The advocates have to patiently investigate the title even though there are several hurdles such as inaccuracy of records. No lapse on part of the advocates is feasible and the seller will not be liable in case of any default or shortcoming with respect to the documents.
FROM TEAM Daniel & Boaz
TEL:- 9840802218

Thursday, February 2, 2012

Simple steps to buy your Property

If you think home buying is a tedious process here is some tips for you, Since your hard earned money is at stake:

1. It is always advisable that before buying you study the market for the market trends about prevalent rates of property in the vicinity and last known transactions.

such as Locality: Proximity to transport hubs, schools, hospitals, market, central business district, entertainment centres, hotels, restaurants, pollution levels, safety records of the neighbourhood.
2. Brokerage Fee if you are relying on buyer

3. Check Total area of the property i.e. Carpet + Built Up Area + Super Built Up Area. whether Adequate car parking space is there or allotted to th Vendor.

4. Construction should be of a high quality. Society is formed or not

5. Ask for photocopies of all deeds of title related to the property to be purchased. A legal opinion through a good standing advocate is advisable. The legal counsel will examine the deeds to establish the ownership of the property by seller, preferably through an advocate.

6. check out the survey number, village and registration district of the property as these details are required for registration of the sale.

7. check out all dues utility bills are fully paid, and nothing is pending.

8. Check with Society whether member can sell the flat or not

9. Check is / or were there any Previous encumbrances and loans, if any on the property must be cleared before completion of purchase of the property. The title of the Vendor to the property must be clear and marketable.

10. Clearances from the following authorities is good to have: Muncipality, Electricity, Water, Pollution, Lift Authorities, Fire,

11. Check whether Occupancy Certificate is issued or not and if no then why its pending.

12. Check what are Society Transfer Charges

13. take complete idea of the total purchase price, confirm transfer fees, stamp duty and registration charges to be paid on purchase of the property as well as other outgoings to be paid for the property i.e. property tax, water and electricity charges, society charges, maintenance charges

14. Time and Mode of Total Consideration payable : Token money is normally paid while confirming the booking the property, do take receipt for same and also putup such terms of sale so orally agreed between u atleast in manual way and get it signed from vendor .

15. Take NOC for Sale from Society (if formed)
prepare a Sale Deed or Agreement from Good Advocate and get the same register

attach the said NOC with said agreement to be registered

16. After payment of the entire sale price, take over legal possession of the property along with documents of title in original from the Vendor of the property

From TEAM Daniel & Boaz
Helpline:- 9840802218

Saturday, January 14, 2012

Housing scheme for babus comes under HC scanner

The controversial 'own your housing scheme' at Nerkundram near Koyambedu, devised to benefit IAS and IPS officers and other state government employees, has come under legal scrutiny.

The first bench of the Madras high court comprising Chief Justice M Y Eqbal and Justice T S Sivagnanam has sought a reply from the state government on the details of the scheme by January 25.

The bench gave the direction while hearing a writ petition it was unfortunate that a prime housing project was being illegally allotted to officials without following any mandatory norms, that too at less than half the market value.

More importantly, though the Tamil Nadu Housing Board, which was formed to provide housing to the homeless public, has a standing rule that applicants for new flats/ plots should not already own any flat/ plot/ house in any municipal corporation, special grade and A grade municipalities either in their name or that of their spouse or minor children, the clause was not included in the current scheme, the PIL said.

The scheme was designed to benefit IAS officers and other government employees who already own houses and flats in Chennai city, ignoring lakhs of homeless in the state.

While the going rate for each sq ft of built up space in the area is around Rs 5,000, it was being sold at less than half the price.

It wanted the court to quash the notification dated February 28, 2011 as the housing scheme was opposed to public interest.

From TEAM Daniel & Boaz
Chennai Property Law firm
Helpline:- 9840802218

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