Theme: Using Your Property Effectively

What are the laws being discussed?

This explainer deals with the purchase and sale of immovable property in India and various modes of acquisition of property. The same is governed by the Transfer of Property Act, 1882 (“TP Act”); the Foreign Exchange Management Act,1999 (“FEMA”) and FDI Master Circular issued by the Reserve Bank of India on the subject matter. The explainer also aims to discuss foreclosed properties (property, which was kept as collateral for a home loan or mortgage but acquired by the money lender due to non-payment of three or more Equated Monthly Installments (EMIs)), the purchase of which is governed by the Securitisation and Reconstruction of Financial Assets and Enforcement of Securities Interest Act, 2002 (“SARFAESI Act”).

What are the different types of immovable property?

Under Indian laws, immovable property includes land, buildings, hereditary allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth, or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops nor grass.(( Section 2 (6) of the Registration Act, 1908)) Due to the fact that land is a state subject under Schedule VII of the Indian constitution, the laws governing immovable property vary from state to state.

Why is registration of an immovable property so important?

The purpose of registering transfer of immovable property is to record the signing of the document. The ownership and transfer become legal only after registration, i.e. the ownership of the property is rightfully transferred only upon registration before the sub-registrar. Another significant benefit of paying registration fees and stamp duty is that the same are eligible for tax exemption under Section 80C of the Income Tax Act, 1961.

What is the process for registering the transfer of an immovable property?

Property or land registration in India involves(( Section 17 of the Registration Act, 1908)):

  • paying stamp duty and the registration fee for sale deed, and
  • having the documents legally recorded with the sub-registrar of the area where the property is located. At the time of registration, the authorised signatories of the seller and the purchaser have to be present along with two witnesses.

Stamp duty varies depending on the area where the property is located. For eg: In Mumbai, the stamp duty is 5% of the total property value, which includes 1% metro cess(( https://housing.com/news/maharashtra-stamp-act-an-overview-on-stamp-duty-on-immovable-property/)). Usually, the seller is responsible for registration of the transfer of immovable property, and the purchaser is responsible for the payment of stamp duty.

Today, most states have their own web portals for property registration and the payment of stamp and registration fee. It does however require the buyer to physically visit the office of the sub-registrar with the documents, once the online process is completed.  Also, the user-friendliness and the number of services one can seek from these portals varies from state to state. For eg: the Delhi government has multiple portals that an individual would have to go through to complete the registration process, but there are plans to introduce a single window portal soon(( https://housing.com/news/property-registration-online-in-delhi/)).

Is it more beneficial to register an immovable property on a woman’s name?

Yes, it is more beneficial to register an immovable property on a woman’s name, as many states and banks have introduced financial benefits for women buying property. As a result, buying property in a woman’s name can bring many advantages such as:

How can I transfer property to an unborn person?

In order to transfer property to an unborn person, you must first transfer the property to a living person, which is usually done through the creation of a trust, until the unborn person comes into existence. This creates a vested interest in favour of the unborn person.(( Section 13 of the Transfer of Property Act, 1882.)) For instance, if A is pregnant with a child, a trust can be created in the interest of the child and this trust will hold the property until the birth of the child. The trustee will essentially act as the unborn child’s proxy until the child is born. To put it simply, the property sits with someone untouched until the birth of the person to whom it was transferred. The trust simply holds the property till that time.

How is gifting an immovable property different from sale or purchase of a property?

A gift is a transfer of  movable or immovable property without consideration, i.e., without money. When a transfer of immovable property happens without any payment made while receiving such property, it is considered to be a gift. In such cases, the parties who give and receive property are known as Donor and Donee.  For a gift of immovable property to be valid under the law, the transfer must be:

  • Done through a registered legal instrument signed by or on behalf of the donor
  • Attested by at least two witnesses(( Section 123 of the TP Act.)).

Once it is signed and registered as per the due process of law, a gift deed cannot be revoked or taken back, except if the Donor and Donee agree beforehand that such revocation shall happen in certain conditions.

Who do you complain to if there has been an issue related to buying or selling property?

You can approach the court to raise disputes over land and property for various reasons including claim on ownership, contestation over land acquisition, disagreement / disputes over real estate transactions, conflict over property inheritance, and misuse of rented property among others. There are different laws and procedures which explain how an individual can seek redressal on these issues, depending on the particular circumstances under which the dispute arises.  Such issues are better dealt with through lawyers specializing in land disputes. However, it is best to conduct your due diligence beforehand to make sure that your property is not stuck in a court dispute. Please talk to a lawyer or ask us any questions through the Ask Nyaaya Helpline.

What should I consider when I am selling a house or land?

If you are planning to sell a property, one of the most critical factors you must consider during the sale is the process of registering the transaction.

Registering the Sale

Registering the transaction or sale is beneficial for both parties since it means that the government recognizes the transfer of property from the seller to the buyer. In India, all individuals must register((  The Registration Act, 1908.)) the sale of an immovable property for which the transaction costs exceed Rs.100. Since the cost of land or a house is much higher, this effectively implies that sale of such a property must be registered. Furthermore, all transactions involving gift of an immovable property, as well as lease for a period exceeding 12 months also need to be registered.

Disclosure of Information

As a seller, it is important to ensure that the transaction is carried out with absolute honesty and in full agreement with the buyer. This is necessary to ensure that there is no conflict or dispute that arises over the transaction in the future. When the buyer shows an interest in the land or house you wish to sell, you, as the seller, must:

  • Disclose to the buyer any material defect in the property of which you are aware but of which the buyer is not aware, and which the buyer cannot ordinarily discover.
  • Make available all the relevant documents to the buyer for examination, including all documents of title relating to the property.

Who can sell property?

Under the law, any person that is competent to enter into a contract i.e., who is 18 years old or above and is of sound mind, can sell an immovable property.(( Section 7 of the Transfer of Property Act, 1882.)) There are specific rules for sale of property by NRIs and PIOs in India. However, for the sale of property to be legal, various aspects come into consideration, such as:

  • Whether you have the right to sell, i.e., whether you are the owner
  • Whether you have the authority to sell the property. For example, seeing if you have a power of attorney or have been authorized by the owner to sell.