Asha Nayar Basu
Managing Partner, S Jalan & Company, Solicitors & Advocates
Date: 27th October 2015
Asha Nayar Basu, is a Managing Partner in S Jalan & Company, Solicitors & Advocates. Mrs Basu has a longstanding reputation in the real estate arena, advising investors and developers on the acquisition, sale and leasing of real estate. Her specialist team in New Delhi & Kolkata, provides a comprehensive service on real estate matters including due diligence, conveyancing, personal law, wills, trusts, family settlements, NRI investments and real estate .
Topic : Check the legality of your Project
Following are the questions answered by Asha Nayar Basu :
Ria: I have been staying in a Pune residential society for 2 years now. The society is 5 years-old but the condition of the building and the enclosed area is worsening. The builders who were responsible for the upkeep have disappeared. Help!
Asha Nayar Basu: When buying a property, no amount of scrutiny is enough. It always pays to be cautious. Do immediately contact a lawyer with all the documents you have in your possession, and take his advise.
Renu Anand Arya: I jointly own a property with my brother. What if I sell this property and we both buy two different properties. What are the legal implications?
Asha Nayar Basu: There are no legal implications. But do make sure all chain deeds are in order. Conduct searches in the register’s office and courts to be sure the land’s title is clean. After conducting the searches, if the land comes out clean, you may go ahead and buy the property.
Kriti Mahajan: The tenants living on my apartment in Noida refuse to vacate. They have been staying for the last 15 years and claim to neighbours that the property belongs to them. Can I undertake legal action and make them leave?
Asha Nayar Basu: yes, do immediately consult your lawyer to send out the notice to vacate.
Krishna: The builder I have invested with has charged double the service tax when it is not payable by flat buyers as per the finance bill. How can I get my money back legally?
Asha Nayar Basu: Now that’s illegal, immediately instruct your lawyer to send a demand notice.
Mohan: I have 10000 sq ft commercial plot. What are the risks in giving it on 20 or 25 years long lease? Will my heirs be able to get back the property including the buildings constructed there by the tenant, by vacating the tenant without any problem after the lease period? Or Will the law support the tenant if he has invested crores in constructing a commercial building and doing business on my plot?
Asha Nayar Basu: the key to ensuring that your rights are protected starts with the negotiation process and ends with the execution of an agreement that details out terms of occupation and handing over at the expiry of the term. So do take legal counsel.
Shakti: IS there a difference in document submission while buying an under construction and ready to move in apartment?
Asha Nayar Basu: yes the terms and conditions of both documents are separate.
Ravi Kaushik: I have invested in a project in Indirapuram. The developer had promised playground for children and free parking space (1) for buyers. On completion, none of them have been fulfilled. Can I take a legal course to get what was promised?
Asha Nayar Basu: yes, you can file complaint with the Consumer Forum as well as initiate criminal proceedings against him . So do immediately consult a lawyer with all your documents.
Nitesh Sharma: I have mistakenly booked a 1BHK flat with an illegal developer. Construction work has stopped since 1 year and they are not refunding my money as well. What legal action can I take?
Asha Nayar Basu: Getting a refund from a cash-strapped company is not easy. you must file a police complaint as well as initiate proceedings at the Consumer Forum.
ATUL GOEL : Many property dealers are selling Free Hold Plots which are not authority approved. Is it safe to buy them & if it is safe then how to ensure that everything has been done to ensure that it is safe.
Asha Nayar Basu: Examine all the title documents in order to establish the chain of ownership.Conduct searches in the register’s office and courts to be sure the land’s title is clean. Giving a public notice in the newspaper is a must. It doesn't matter which one. It need not be English. Any state language too will do. And any newspaper with some circulation will do. This Public notice is what protects your interest in the court of law if you face any litigation regarding your purchased property.The legal search of the property (not to be confused with physical search) has to be conducted by engaging a lawyer following which he gives a title note. If you approach nationalised banks for loan to buy property, their lawyers conduct a search and give title note. But if not, you have to do it yourself. Without doing the above you should not ideally part with any money.
Joshi: Is there any mandatory rule that owners of any plot in a Co-operative Housing Society cannot keep their Plots vacant even if it is just made as for investment purpose or is planning to build it in the future?
Asha Nayar Basu: Check the bye laws of the Society and also consult a lawyer who is familiar with the recent government notification in your area.
Priyanshu: I'm planning to purchase a freehold flat which is currently owned by three brother's who are legal heirs of property left to them by their father who died Intestate (and their mother is also no more) and property is still in father's name. Please advice.
Asha Nayar Basu: Before buying the property a complete title search of the property must be done. Check all the chain deeds to the property and plan sanction approvals. You should also engage a lawyer to conduct searches in the registrar’s office and the courts. Ask your lawyer to confirm with you in writing that there is no mortgage or other charge or encumbrance registered on the property you are intending to buy; that it is registered in the name of the seller; and there are no outstanding local taxes or capital gains tax. Make sure that all statutory payments are up to date.
Malay Ganguly : What should I keep in mind before buying under construction apartment...? What legal aspects should I look at before investigation in a project?
Asha Nayar Basu: make sure that the builder has all the necessary approvals in place. The first of these is the permission to develop land into a residential complex. Builders need to get government approval to convert agricultural land or even land specially designated for industrial purposes into a residential area. If the builder has gone ahead without securing this approval, the entire project is illegal. In addition, there are environmental and municipal clearances to factor in. the builder has to ensure that his project does not interfere with the urban and town planning, and that it has unrestricted road access. You need to find out if the builder has the authority to transfer the undivided share of land to each flat owner and the entire plot to the society, on completion of the project. You should also ensure the builder does not reserve any right on your portion of the apartment. The developers tend to charge a premium for additional features.
Sivgangnam: Hi Mam, I am planning to buy my first property(800sft independent house) in panchayat approved land with construction in Ponmar, chennai. Is it advisable to buy without DTCP/CMDA approval. If so, what are the check lists to buy?
Asha Nayar Basu: Permission to transfer the property has to be obtained from a competent authority -development authority or society - signifying ownership. Original stamped receipts of payments made by the previous and present sellers to the builder or the development authority has to be made available.
Rohit: The builders are saying the completion of the project will take a year more. We had to take the possession this year. What should I do? Will I have to pay more prices for the delay?
Asha Nayar Basu: Delays in construction of residential projects are common in India. Developers include a grace period, generally six months, in their agreement with buyers. Most homebuyers take a delay of 6-12 months as granted. Sometimes, possession is delayed even beyond the expected tenure. Refunds can be claimed if a project is delayed beyond the period stipulated in the agreement. You can file a case in the consumer disputes redressal commissions at the district, state and national levels.
Peeyous: I have purchased a plot in Noida from the 1st party owner and now I have realized that he has not provided me all the documents, what legal action can I take now? Please suggest.
Asha Nayar Basu: You can file a case in the consumer disputes redressal commissions at the district, state and national levels.
Rakesh: Can I sell my own property to my father and mother?
Asha Nayar Basu: yes
Shakti: Is it necessary to make a rent agreement and register it before giving the apartment on rent?
Asha Nayar Basu: well, it’s preferable.
Hashim: Is selling a property to foreigner is legal?
Asha Nayar Basu: Acquisition of immovable property in India by persons resident outside India (foreign national) is regulated in terms of section 6 (3) (i) of the Foreign Exchange Management Act (FEMA), 1999 as well as by the regulations contained in the Notification No. FEMA 21/2000-RB dated May 3, 2000, as amended from time to time. The Reserve Bank does not determine the residential status. Under FEMA, residential status is determined by operation of law. The onus is on an individual to prove his / her residential status, if questioned by any authority.
Hashim: Hello, I am planning to buy a resale apartment in Dwarka, delhi, what are the legal documents should I check with the existing owner?
Asha Nayar Basu: When you are planning to buy any property, first and foremost thing is to check down the title deed of that property. The property title deed is the legal document which proves the ownership of property. You should make sure through the title deed that the property is in the name of solely a seller and no one else is and he has all rights to sell it. The best practice is to get reviewed the property deed by an expert lawyer just to make sure that there are no loop holes. Many property owners take bank loan by pledging their property. So check they have paid the entire amount due when you are going to buy that property. If they have paid the entire amount due then the bank would have issued them a ?Release certificate?.
Eliz: What would be the validity of an apartment? Ppl say 99 years, how can I have it as an asset for my generation? Is it possible?
Asha Nayar Basu: For ownership to pass validly, a registered sale deed will need to be executed. In the absence of that, you will not get valid title to the property. and when you have a registered deed in your favour, the property is yours / your legal heirs to enjoy.
Hana: The possession of my project has now been delayed for over 6 years. The builder is not picking up the call and the corporate office has also been shifted to other city. What should i do?
Asha Nayar Basu: Project delays are a reality and few are completed on schedule. Some builders do offer compensation for delays in handing over possession, but it's not something you can bank upon. Refunds can be claimed if a project is delayed beyond the period stipulated in the agreement. You can file a case in the consumer disputes redressal commissions at the district, state and national levels.
Preeti: Recently in a verdict Allahabad high court ordered to demolish its 40-storey towers in Noida. what can a home buyer invested in such project do? What are his rights?
Asha Nayar Basu: In such cases the investor doesnt have much of a choice. He claim refund of his payment along with damages from the builder.
Jignesh: Hi, I am buying a new property from a very renowned developer in Noida, should I go for legal check or should trust the developer brand value?
Asha Nayar Basu: Before you buy a Property, its important to have a look at the builder profile and his overall history. How many projects he has already delivered, How much delay was there etc. besides finding out whether a builder has secured all the approvals check the ownership of the land . For this, Check the allotment letter of the land, if it has been purchased from a government agency. If the land has been acquired from farmers, check the title paper which mentions the owner. This will also help you determine whether the title of the property is clear or not. The next step should be to find out whether the developer has secured all the approvals or not. The major set of approvals that must be obtained by a builder are building plans and floor plans, structural safety certificates, no-objection certificates from the civic authorities, environment clearances, urban land ceiling certificates , commencement certificates and title deed.
Bijoy: I am selling my 2 BHK house in Delhi, the prospective buyer is asking for the registry papers, should I provide him the original or the photocopied?
Asha Nayar Basu: Show him the originals but do not hand them over to him, photocopies will suffice.
Leela: Do I need to check the legal status of a project in a 3-year-old multi-storey apartment project as well?
Asha Nayar Basu: yes, For this, you can ask the developer to show the allotment letter of the land, if it has been purchased from a government agency. If the land has been acquired from farmers, check the title paper which mentions the owner. This will also help you determine whether the title of the property is clear or not. The next step should be to find out whether the developer has secured all the approvals or not. The major set of approvals that must be obtained by a builder are building plans and floor plans, structural safety certificates, no-objection certificates from the civic authorities, environment clearances, urban land ceiling certificates , commencement certificates and title deed.
Rithika: What all precautionary actions to be taken while before or after registering any revenue Land?
Asha Nayar Basu: . Consult a lawyer who is familiar with the recent government notification in your area.
Akshay Sharma: I want to buy a builder floor in Indirapuram which is registered with Ghaziabad authority and I have checked the approved plan and legal chain papers. LIC HFL is ready to give loan but SBI is not providing. I am not able to understand the legal constraints due to which SBI is not giving loan. Please advise.
Asha Nayar Basu: Not sure ask them. but to be on the safe side do get a thorough legal search of the property (not to be confused with physical search) conducted by engaging a lawyer following which he gives a title note. Also examine the structural and finishing specifications which are spelt in the allotment agreement.
Rama: I intend to buy a resale flat in a standalone multi-storey building? How do I ensure that the building has adhered to all legal mandates and BMC clearances before investing?
Asha Nayar Basu: Before buying the property a complete title search of the property must be done. Check all the chain deeds to the property and plan sanction approvals. You should also engage a lawyer to conduct searches in the registrar’s office and the courts.
Kalyan: I have purchased flat in 2011 at pune & i have done its sale of agreement also. When we paid full amount of flat to the builder, builder has not agreed to do the sale deed document. Please suggest me that why should i do now ?
Asha Nayar Basu: You can file a case in the consumer disputes redressal commissions at the district, state and national levels.
Purohit: I want to buy a plot under Gram Panchayat in Pune, what are the documents to be checked for this?
Asha Nayar Basu: Consult a lawyer who is familiar with the recent government notification in your area. Before buying the property a complete title search of the property must be done. Check all the chain deeds to the property and plan sanction approvals. You should also engage a lawyer to conduct searches in the registrar’s office and the courts.
Suman Singh: What is an encumbrance certificate? Does it testify if the property is free of all legal dues and mortgages?
Asha Nayar Basu: An encumbrance certificate is evidence that the property in question is free from any monetary and legal liabilities. It is evidence that the property can be sold as a free title and the ownership will come to you without any associated baggage. This is a document that you will be able to procure from the registration authority’s office.