Legal Corner » Citizen Of India

What documents are needed to execute a sales deal of a plot that has been acuquired through GPA?

atoneplace — Wed, 28 Oct 2009 07:42:28 +0000

Question asked by Mr. Mayura B.T from Bangalore, Karnataka:
Dear team, I am from Bangalore having a plot adjacent to Mysore Road (Byatarayanapura, Bangalore -26) which is of 4000 sq. ft. This is a land which was purchased by my father-in-law and later after his death got transferred to my mother-in-law. The GPA has been done by my mother-in-law to my wife. Two years back my mother-in-law expired. Now we want to sell this plot. This plot comes under corporation. Please let me know the documents needed to execute this selling smoothly. The Tax papers and Khata are in the name of my wife. I heard that a family tree and the death certificate of my mother-in-law is required to execute this deal.
Awaiting your valuable revert.
Regards,
Mayura B.T
Vatsala Answers:
After the death of your father-in-law, the property has already devolved equally on all legal heirs, unless he has left a will to the contrary. It is only for the purpose of convenience that your mother in law’s name was transferred in all supporting documents. The power of attorney given by your mother in law to your wife has lapsed after her death. The property will now be equally shared between your wife and her other siblings. If you want to sell, the family tree showing the other siblings will have to be made. Then the Khata should be changed to one of their names. Thereafter the sale should be made by all the siblings jointly. Vatsala
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What should be done if the builder is demanding extra money for an apartment?

atoneplace — Tue, 27 Oct 2009 10:34:42 +0000

Question asked by Mr. Siddharth from Mumbai, India:
Hi, I need your guidance.
I had booked a flat 2.5 years back from a reputed builder in Mumbai. Even though I have already paid all the amounts as agreed and mentioned in the registration document, the builder is not giving possession of the flat. He wants additional Rs.15000 which is a new demand from him (since May, 2008) and not a part of the registration document, even the demand note from him that I got in April 08 had any mention about it.
I have been writing letters to him for last 4 months but he doesn’t reply and their sales office says that whatever you do, you have to pay this amount without which you won’t get the possession. Those who paid that amount, they got the possession in May, 2008 itself.
My point is that I have paid everything that was part of registration document. How can you hold the possession for something which is not a legal demand? If this demand of Rs. 15000 is legal, please give this to me in writing that you won’t give possession till I pay this money. They refuse to reply to my letters in writing and also refuse to give the possession.
I am already incurring almost Rs. 35000 as interest cost per month on the flat amount. With every passing day, I am incurring additional cost but at the same time, I don’t want to agree to his unreasonable demands. I am mentally harassed as well as financially losing the money.
He doesn’t give the possession date in writing. Even in registration document, he had forced me to sign even without a possession date. I understand he did that to everyone. His point was that sign or else cancel your booking, choice is yours. I had already spend more than Rs. 5.0 Lakhs in booking this flat in 2005 itself and had lost more than 1 years because his building got stuck in environmental clearance after 26th July 2006 rain in Mumbai. So, after waiting for 1 year, I didn’t want to cancel the booking.
What is the recourse I have? I will certainly go to Consumer Court but settling the case will take more than a year or so and there is no guarantee that I will get the justice and win the case. Till that time, I can’t afford to lose the money on my flat.
Can I pay the money that he is demanding and take the possession of the flat and then file a case in Consumer forum? What should be the process? I know, if I file a complaint/case first, he won’t give me the possession at all till the case is heard & closed. In the process I may lose more than even 1 year, knowing the judiciary system of our country for a common man.
Please advice. I will be highly obliged.
Best regards,
Siddharth
Vatsala Answers:
There is no mention in your letter as to why the builder is demanding the extra money, i.e. towards what category? It seems to me that you should either fight it out in the consumer forum or pay up and take possession. If you go to the forum, you should take your chances there. The third option is to pay the sum now, and seek a refund later. You can allege that there was delay and lapses in getting possession and seek compensation for illegal demands of extra money and compensation for it.Vatsala
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Is it correct to stop Association’s services to defaulters, in case of apartments?

atoneplace — Tue, 27 Oct 2009 08:25:22 +0000

Question asked by Narayan Aras from Karnataka, India:
BACKGROUND:
Our nearly 3 years old apartment is registered under Karnataka Apartments Ownership Act, 1972.
(available here: http://www.karnataka.gov.in/dpal/pdf_files%5CAPARTMENT%20OWNERSHIP%20ACT,%201972-new-9.pdf)
(hereinafter, called KAOA in short)
All our expenses are shared through (a) interest on the corpus collected by the builder, and (b) monthly contribution. (The interest on corpus pays for 40% of the total monthly requirement.)
PROBLEM:
Some owners are not paying their monthly dues for more than 3 months.
Because of the corpus, this amounts to non-payment of 60% of the monthly dues.
CAUSE:
There is no reason for the non-payment, as explained below:
We provide the following opportunities for anyone to raise objections about budget, accounting or management:
• We have weekly association meetings and the annual AGM.
• Our monthly financial statement is published in the Yahoo Group, for all to see and comment.
• Even the petty cash account is kept open for scrutiny in the office.
The defaulters have not used any of these mechanisms to express their objections.
Our accounts are subjected to annual audit; which have not attracted any adverse comments.
Thus the defaulters have no possible reason for withholding the payment.
They have not replied to any of the public notices, emails or Yahoo Groups posts urging them to pay up.
Our estate manager has personally visited them to get the dues, but they have not responded.
Looking at their financial status and lifestyle, lack of funds is not the reason for the non-payments.
POSSIBLE SOLUTION:
We have provision in our bye-laws to stop our own services (which we provide at our shared expenses) to such people. The intention is to force them to pay up.
Examples are :
(a) water (which is bought in tankers, treated in our own water-treatment plant and then pumped to overhead tanks)
(b) DG backup in case of power failure (each apartment gets 500 VA which is not metered)
(c) Electrician
(d) Plumber
(e) Clubhouse+swimming pool+gym
We have no intention of interrupting the services provided by third-parties (e.g. electricity, newspaper, milk, etc.). The cutting of services is not permanent (only till the dues are paid).
DOUBTS:
Some of the committee members have a doubt whether stopping of services is lawful.
They think these may be considered as “essential services”, which have to be provided even to non-payers.
But other members think that even BESCOM and BWSSB cut off electricity and water to defaulters.
Therefore, it should be OK if we cut our services too.
Personally, I think the Karnataka Essential Services Maintenance Act does not apply to our situation.

http://164.100.80.70/acts/ACTS%20E/58e.pdf

Is that correct?
KAOA does not mention what to do in case of (partial) non-payment..
So is there any state/central act that allows or prohibits this?
The BESCOM electricity comes through our own substation, for which we have to pay maintenance and inspection charges.
Considering that, can we rightfully cut electricity supply?
We do not want to take the defaulters to court for the simple reason that it would be costlier than what is due!
Is that a free/cheap alternative? (fast courts, arbitration, etc?)
Please provide reference to the applicable laws/acts.
Thanks and regards,
Narayan Aras
Vatsala Answers:
There is a precedent declaring that it is not lawful for the Association to cut off essential services. It is required that you go to court for collecting the same. However you can try to settle the matter through arbitration or mediation. In any case the unpaid dues will constitute a lien on the property which can be enforced. Unfortunately there are no short cuts to the legal system.
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Will I become party to evasion of stamp duty?

atoneplace — Sat, 24 Oct 2009 08:20:39 +0000

Question asked by Anonymous:

Hi I have a question to ask. I bought a house from Builder in Hyderabad in August 2006. The agreement of sale was for 33 lakhs. The registry was done at a lower cost 18 lakhs in august 2006 itself. The flat was under construction that time. I also took a loan of 27 lakhs from the bank for it. Now I am selling the house for 62 lakhs. The buyer is taking over my loan. The bank will give me a difference between loan amount sanctioned and selling price i.e. 30 lacs (Cheque) and the buyer will give me 5 lacs. So in total I am getting 35 lakhs in my account. Now the questions are:

1. The Buyer wants to get the registry of the flat done at 25 lacs. How is that possible as he is giving everything in white? How will I explain to income tax authorities as to where this 35 lac came from when I sold the house for 25 lacs (as per the registry) and where did I get the money (27 lacs) for prepayment of loan. Will I become party to evasion of stamp duty in this case? (There are two agreements, one is agreement of sale which shows the correct price on which the bank finances and the other is the sale deed which shows the amount in the registry and is registered)

2. What documents do IT authorities refer when calculating Capital Gains?

3. The builder is the agent through which I am reselling the flat. And I am paying him a commission of 100/- sq. ft. Now, I got to know that he is fooling the new customer by collecting service tax and VAT from him which is not applicable on Resale Flat. And he will keep that amount with him. Now the question is if the new customer some day knows that Service Tax and VAT was collected from him and is not applicable then can I be in trouble as the builder is just the agent, I am the Seller of the flat? What should I do?

Thanks in advance

Vatsala Answers:

1. The agreement of sale showing the full amount will protect you against income tax queries, despite the lesser value in the sale deed. You can show the extra amount towards fittings, furniture, right of use of car park, right of use of common amenities, deposits kept with builder for water, electricity and maintenance charges.

2. It is open to the IT authorities to rely on the sale agreement (if it is deposited with the bank) and the sale deed.

3. It is not correct for the builder to collect VAT and service tax again from the new purchaser. It should be accounted for under brokerage or some other account. In any case you need not collect it in your name. Vatsala

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What Does It Legally Mean When One’s Name Is Shown As A Nominee On The Property Documents?

atoneplace — Fri, 06 Mar 2009 03:29:53 +0000

Question asked by Ms. Yamini Mehta :
Dear Sir/Madam, I saw your real estate property advertisement in the news paper. I will very much appreciate your immediate reply in the following matter. I have following questions about Indian property – real estate and family or any other applicable laws and procedures in the state of Maharashtra (Mumbai), India.
If a married son owns a flat (apartment) in a Co-operative Housing Society in Mumbai and his motherâ€™s name is shown as a â€œnomineeâ€ on the property ownership documents then what kind of legal ownership rights does the mother has in case of sonâ€™s death?
What does it legally mean when oneâ€™s name is shown as a â€œnomineeâ€ on the property documents? In this case, what kind of legal rights to the property ownership does the wife of the son has? (specially, if son is dead)?
If the son has a â€œWillâ€ indicating that the ownership of the flat should go to the mother after his demise, can son’s wife still claim the ownership of the flat and get the legal ownership of the flat after husband’s demise? Or whatever is on the Will, will prevail over the property and any other applicable laws?
In other instance, if mother’s name is listed as a co-owner of the property (flat) along with son’s name, (that is, if mother and son are joint owners of the flat) and son dies; does the mother become the sole owner of that flat automatically? Or in this case, son’s wife can claim the ownership of the partial property (flat) which is on her husband’s name and can become the part owner of the flat? In the above matter, what is the best legal way to secure property on mother’s name (who is in ill health), so the property (flat) cannot go to son’s wife as an owner or part owner after son’s demise. Please reply soon this is an urgent matter.
Thanks.
Sincerely,
Yamini Mehta
Vatsala Answers:
The apartments in Mumbai are owned by virtue of owning shares. Shares can be transferred to the person who is shown as nominee on the share certificate, by virtue of which the title to the apartment also changes. However in one judgment, the Supreme Court has held that the nominee can act only as a trustee and should distribute the property to all the legal heirs in case of
death without a will. If there is a will, it will prevail over all other legal rights. In the case of joint ownership of a flat, the half belonging to deceased husband will devolve equally on all his legal heirs in the
absence of a will. A will can be executed by the ailing mother now to whomever she wishes. The Maharashtra Co-Operative Societies Act should also be looked into and consultation with a local lawyer is advised who can check the precedents in the state.Vatsala
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What Action Can Be Taken Against The Builder If He Doesn’t Forms A Co-operative Housing Society?

atoneplace — Fri, 06 Mar 2009 01:23:54 +0000

Question asked by Mr. Kishore Barve from Nagpur:
Hello Sir, I am living in a building with 6 flats in Nagpur for last 8 years. The builder of this building also stays on the ground floor flat which has a independent entrance. For 8 years the builder has not formed a Co-operative housing society and so there is no formal body to govern the building and no maintenance takes place. I want to know what action can be taken against the builder so that he immediately forms the society. Since there is no society there are no office bearers and no audit of building fund is ever done.
Please direct me on how to proceed.
Kishor Barve
Vatsala Answers:
You are well within your rights to approach the appropriate court and compel the builder to form the society. You should approach a local lawyer who can handle the same for you.Vatsala
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Can A Builder Ask For VAT And Service Tax Even If He Didn’t Mention About Them At The Time Of Sale?

atoneplace — Thu, 05 Mar 2009 01:29:11 +0000

Question asked by Mr. Amrendra Singh from Bangalore:
Hi I came to know about u from some of my friends.
Now the problem I am facing is as below.
1. I had bought a flat in Bangalore from the builder â€œUKN Esparanza â€œ some 3 months before and at the same time we have applied for the loan from IDBI bank. Now we have made all the payments towards the apartment including the deposits and other things and only the registration is pending.
2. Recently they have sent a demand lettter to pay the registration cost and included Vat and service tax with that. Though at the time of booking of the flat they have confirmed us that there wonâ€™t be any VAT and service tax charges.
3. I understand that there is a clause in the sale agreement which says that any taxes levied by govt. at the time of registration has to be paid by the customer, but they have not mentioned anything towards the VAT and the service tax on the breakup latter provided and the bank has also funded based on the breakup letter.
4. Now since the Vat and the service tax levied is in tune of 3 L, I am unable to pay the same.
Need your assistance in understanding that how we can handle the situation. As these charges were never been discussed at the time of the sale, how can a builder ask fr the same now.
Anticipating your fast reply in the regard.
Thanks & Regards
Amrendra Singh
Vatsala Answers:
VAT and service charges are statutory liabilities passed on the customer. You can approach a chartered accountant to determine if what the builder is demanding in lieu of the same is the correct amount or not. Other than that there may not be any way to completely escape paying it. Vatsala
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How Can One Get Back His Booking Amount If The Developer Is Not Meeting His Agreed Terms & Conditions?

atoneplace — Thu, 05 Mar 2009 01:06:24 +0000

Question asked by Mr. Amardeep from Delhi:
Hi, I am Amardeep .I am writing to you in great faith. I have the following query.
In the year Nov, 2006 I invested for a flat in a pre launch project in Faridabad in Delhi-NCR. In Nov.2006 I paid 2.55lacs as first Installment. In Jan 2007, I paid another 2.08lacs as demanded by the builder. Till date I have paid total of 4.65lacs approx. which is around 30% of the total base price of the flat.
This builder didn’t start the work as per the schedule. He started allotments in March 2008.Till that time there was no progress. In between I enquired and found that he made refunds also to many people who were influential. I also approached for the refund. He asked me to do some formalities like signature proof by bank, original receipts of payments made etc. I completed all the formalities and reached his office. Initially the person in charge for the refunds took the papers from me. After that he went to this promoter in front of me, talked to him and came back to return my papers saying we will not refund. By this time the process for allotment had also not taken off. He said get the allotment after some time and stay invested you can not exit while at the same time he was doing refunds to some other influential people. Even now he is shifting the people to another of his project in Gurgaon, which he has well marketed. Also made offer to me to transfer in another project which is also pre-launch.
I am harassed completely. First there is no sign of any development of the site as yet in Faridabad, when I visited the site last month. When I approached him the other day, He said we have started work. Digging is taking place there. Pay another 10%amount for the allotment. The entire plan now he has changed when I got the Brochure yesterday. Layout plan is changed. Secondly, Now they say that AC will be provided in the master bedroom only while at the time of booking, they said it is fully air-conditioned. There were two options for car parking earlier -Rs75000 for Open car park and 150000 for Covered parking. Now this amount is Rs200000 and its the only one option he is giving. I am no more interested as this builder is just making fool of the remaining investors and buying time by just doing little for the namesake at the site place in Faridabad. When I ask for refund, he traps me saying that I will get back only 2.45lacs.
Please tell me, in a pre-launch, this was the booking amount only which I paid. Now there is no allotment and as such no formal contract between me and the promoter. At any time can I exit? If yes, then what are the scenarios–
1 After paying penalties
2 Or without penalty.
If I have to pay penalty, then to what extent. Will it be as high as 50%.How Can I get back my hard earned money from this Promoter. Am I entitled to get back my entire booking amount with interest? What are the channels whom I can approach for this gross injustice? Please Guide.
Thanks a lot in advance.
Warm Regards,
Amardeep
Vatsala Answers:
It appears that you are in the clutches of an unscrupulous developer. You are not required to pay any penalty. You should file a suit for recovery of money with interest either in the consumer court (which will be decided faster) or in the concerned civil court. You are entitled to the recovery of full monies paid with interest. You can also ask for compensation for mental harassment.Vatsala
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Can A Person From Non-Farming Background Buy Agricultural Land?

atoneplace — Thu, 05 Mar 2009 00:40:02 +0000

Question asked by Mr. SV Mohan Kumar from Bangalore:

Hi, his is Mohan from Bangalore, Karnataka. I Want to buy a agriculture Land but I am not from a Farming Background , We don’t have any Agriculture Land , but I want to buy Land and Start Agriculture , My Parents or My Grand Parents are not Farmers but I want to Start , Please let me know the Procedure to buy the Agriculture Land.
Regards
Mohan

Vatsala Answers:

It will not be possible for you to purchase agricultural land in Karnataka unless your annual family income is less than Rs. 2 lakhs and if you already have agricultural lands somewhere in India. Alternatively you can get permission to become an agriculturist provided you are also compliant with the income limit. This involves identifying the land, entering into an agreement of sale (not sale deed) and then approaching the Assistant commissioner concerned, for permission to purchase it. Thereafter you can get the land registered in your name.Vatsala

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Can A Resident Indian Buy An Agricultural Land In His Name?

atoneplace — Wed, 04 Mar 2009 05:52:33 +0000

Question asked by Mr. Vinod Burade from Baroda:

My father had agricultural land in his name which he sold few years back. Now we don’t have any agricultural land. Can I buy an agricultural land in my name. Please give your feedback.
Vinod Burade
Baroda

Vatsala Answers:

The laws vary from state to state in India regarding agricultural lands. You should first state where in India you wish to purchase the land and then consult a local lawyer.Vatsala

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