Category Archives: Conveyance

IOD – Intimation of Disapproval – Redevelopment

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To avoid disaster in the process of redevelopment of hosing society in Mumbai interpretation of law is important

Today society are opting for redevelopment in which the builder provides them extra carpet and larger rooms by taking the benefits of FSI using TDR and construct additional residential and commercial and earn monetarily

Most important aspect arises at the time when existing building of the society is demolished on the basis of IOD (Intimation of Disapproval) An IOD is issued based to developer after the redevelopment plans are submitted to the Building Proposal Department of BMC , The developer needs to comply with many requirements obtain various clearances from Environment Authorities, Tree Authorities, Fire Officer etc. Only after the clearances are obtained, the developer gets a commencement certificate (CC)

All these clearances are necessary before getting the cc and after getting the IOD If the developer fails to get all these clearances the construction cannot commence However it is seen that the buildings are demolished on the basis of IOD even when major clearances are not obtained.

Faq On Deemded Conveyance

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Faq On Deemded Conveyance

Q1. What is the meaning of deemed Conveyance?

Ans: The Promoter( Builder/ Developer) is legally required to convey the land and the building within 4 months of  formation to  the society or any legal body of the flat purchasers.  However, it has been the experience that many promoters( Builders/Developers) have not conveyed the land and building to the legal bodies. Therefore, government has amended the Maharashtra Ownership Flats Act, 1963 (MOFA) and provided for the deemed conveyance in favour of the legal bodies. Under the provision, deemed conveyance means after the expiry of 4 months of formation of the legal body, the land and building is deemed to have been conveyed to the legal body and to bring the same in the revenue record, a Competent Authority has been designated who will hear the parties on the basis of applications received from the aggrieved party and transfers the title in favour of the legal body by passing the necessary order and deemed conveyance certificate and appoint an authorised officer to execute the conveyance deed in favour of the society and execute on behalf of  non co-operative builder or the land owner. Getting the title of land and building by adopting the above procedure is known as deemed conveyance.

Q2. What is the difference between the deemed Conveyance and the Regular Conveyance.?

Ans: In case of regular conveyance, the builder/ Developer/ Landowner prepares a conveyance deed, execute the same and appear before the Sub-Registrar of assurance for admitting their signature. Without any problem, the legal bodies get the conveyance with the co-operation of the builder/ landowner. In case of deemed conveyance, the builder/ land owner  or their legal heirs are not co-operating, therefore, the aggrieved parties appear before the Designated Competent Authority, who hears all the parties and passes the necessary order of conveyance.  Deemed Conveyance is obtained as a legal remedy against the defaulter builder/ landowner who donot want to part with the land and the building in favour of the society.

Q3. Is there any further problem / litigation in getting the deemed Conveyance, if the builder/ Landowner Does not co-operate?

Ans: Deemed Conveyance is a final conveyance. There will not be any problem. Once the Deemed conveyance is passed by the Competent Authority, the conveyance deed will be executed by the Authorised Officer in favour of the Legal Body. Further, the same will be registered. There is no appeal against the deemed conveyance order passed by the competent Authority.   Once the deemed conveyance order with conveyance deed is executed, the index II has to be obtained and submitted to the Talati office or City Survey office to incorporate the name of the legal body in the 7/12 extracts or in the property card as the case may be.

Q4. What is the provisions for payment of stamp duty on deemed conveyance?

Ans: Like regular conveyance, even on deemed Conveyance, the stamp duty will be only Rs.100/-, if all the flat owners have paid the stamp duty and  have done the registration of their respective flats including  on all the transactions (Chain of Agreements) done in those flats.  In case there are some flat owners who have not paid the stamp duty or has escaped the duty, the same will have to be paid at the time of registration of the deemed conveyance deed by the legal bodies and the same can be recovered from such flat owners.

Q5. How the conveyance in favour of the legal body will be done in case of layout plot where the builder carries out the construction in phases?

Ans: In case of layout plot, the provision for part conveyance has been done in the new proposed Rule No9(2). It has been clearly pointed out that in case of layout plot, the legal body will be entitled to get the proportionate  undivided rights, title and interest in the layout plot based on the FSI/TDR used for the respective building out of the total development potential of the entire layout plot as on the date of conveyance of the land and the building and as per the disclosure made by the builder. In case the builder has not disclosed the same, the entire balance FSI/TDR will be transferred to the legal bodies proportionately otherwise it will be available to the builder.

Q6. What is the procedure followed by the competent Authority to give the deemed Conveyance?

Ans: Normally, the aggrieved party has to make the application to the competent Authority in the prescribed form with documents available against the builder, if he fails to convey the land and building to the legal body within 4 months of its formation.  The Competent Authority shall scrutinize the application, collect the documents from the promoter/ builder or from the authorised officer appointed by him and get the application admitted. After the admission of the application, the competent Authority shall conduct the hearing and then take the appropriate decision, whether the applicant or the legal body is a fit case for granting the deemed conveyance. If he passes a favourable order, then he appoints an authorised officer, who shall execute the conveyance deed.

Q7. What  documents are required to be submitted along with application to get the deemed conveyance?

Ans: Following documents may be attached with the application for deemed conveyance.

i)      the registered Agreement for sale entered into with the promoter/opponent party

ii)     7/12 Extract and Village form No.6 (Mutation entries)

iii)    Property card,

iv)   Location Plan

v)    City survey plan  or survey plan from the revenue department.

vi)   Layout Plot plan approved by the local authority

vii)  Architect certificate about the entitlement of undivided interest in the entire Layout Plot, common areas and the facilities by each of the entity or the structure constructed or to be constructed on such Layout Plot.

viii) Latest Title and Search Report for last 30 years from an advocate,

ix)   Non-Agricultural Order

x)    Certificate under Urban Land Ceiling Act, 1976

xi)   Building/ Structure Plan approved by the appropriate authority,

xii)  Commencement Certificate,

xiii)   Completion Certificate,

xiv)Occupation Certificate,

xv)  List of  Flat Purchasers

xvi)Proof of payment of Stamp Duty

xvii)           Proof of Registration, etc. ,

xviii)          Development agreement  or power of attorney or agreement for sale executed by the landlord with the promoter for development or for transferring the right, title and the interest in the land in favour of the promoter.

xix)Any other land or building related documents papers in support of the application.

xx) Legal notices send to the Promoter and other interested parties to execute the conveyance deed or declaration as provided under Maharashtra Apartments Act, 1970 in favour of the applicant/s.

xxi)Draft conveyance deed / Declaration proposed to be executed in favour of the applicant.

Check List for Deemed Conveyance

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Check List

Check-list for Deemed Conveyance Order – Annexure I

 

Available from Society:

  1. Society Registration Certificate
  2. List of Members
  3. Complete Copy of Agreement for Sale

From Members:

  1. Stamp Duty & Registration receipt of all the members
  2. Stamp Duty & Registration receipt of all the Re-sale flats
  3. Index II of all the agreements

From Developer / Land Owners:

  1. Development Agreement
  2. Death Certificate of owners of the land who have expired
  3. Partnership deed of the partners
  4. Partnership Deed Registration Proof
  5. Conveyance Agreement with the Builder
  6. Will, Probate Copy, in case the development agreement is signed by legal heirs.
  7. Land Agreement (with the earlier owner and Builder)

City Survey Office / Talati / Tashildar Office:

  1. 7/12 Extract
  2. Village Form No.6
  3. Property Card
  4. City Survey Map

 

Collector Office:

  1. N.A Order
  2. U.L.C Order
  3. N.A Tax paid Receipt

 

From Local Authority / BMC

  1. BMC approved Plan
  2. BMC (IOD)
  3. BMC (Commencement Certificate)
  4. BMC (Occupation Certificate)
  5. BMC (Building Completion Certificate)
  6. BMC (Property Tax Paid)
  7. Location Map

Reports From Professional:

  1. Survey Report – From Architect / Survey Engineer
  2. Search Report – From an Advocate
  3. Title Clearance Certificate about the property by an advocate

Importance Of Conveyance

Importance Of Conveyance

Although the Society is governed by the MCS Act, Rules and the Bye-laws, a common situation most prevalent in a Cooperative Housing Societies is where the Members and some times even the Office Bearers are ignorant about the importance of the Conveyance Deed. Seldom do the people realize the advantages of obtaining the Conveyance Deed and the mandatory condition that makes it one of the most important Documents that every Society should possess. Considering the fact that the provisions of the Bye-laws distinctively mention the Conveyance issue right from Bye-law No 5: The Object of the Society shall be as under: (a) To obtain Conveyance from the Owner / Promoter (Builder) in accordance with the provisions of the Ownership Flats Act and the Rules made there under, of the right, title and interest, in the land with the building / buildings thereon,

Further at the first General Body Meeting of the Society where in as per the Bye-law No 89 (a) (vi) Authorizing the Committee to secure Conveyance of the right, title and interest in the property in the name of the Society from the Promoter (Builder). The elected representatives of the Society in its First General Body Meeting would be authorized by the General Body to initiate the procedure for procuring the Conveyance, which clearly indicates that this issue is of prime importance and requires to be addressed appropriately in the interest of the Society and its members. But as a matter of fact, though the first General Body considers this topic in its agenda and where members unanimously agree to pursue the matter, seldom does the issue gain momentum on account of the other issues which take center stage due to the taken for granted attitude that the members exhibit towards procuring the Conveyance.

Some of the main reasons that we have identified which according to our survey have surfaced as the main reason for the major delay in arriving at a conclusion for taking up the Conveyance matter are as follows.

  • Ignorance regarding the subject matter
  • Lack of Knowledge / Information
  • No initiative from Promoter (Builder) due to vested interest
  • Non availability of Documents
  • Non Cooperation from Promoter (Builder) & Land Owner
  • Non Cooperation from Society Members
  • Fear of Litigation and Expenditure

Under the aforesaid circumstances, we advise that as per the Byelaw No 155 (b) the Committee in consultation with the Solicitor or the Advocate of the Society place the Conveyance Deed before the General Body which should take necessary steps for Conveyance. The Committee would then be required to finalize the Draft of the Conveyance Deed with the guidance and assistance of a Professional Advocate. As per the Bye-law No. 155 (c) On approval of the draft Deed by the General Body Meeting of the Society, the Committee shall execute it. In this regard, we advise that the selection of the professional for carrying out this act, the Society needs to ensure that the selected professional is experienced, knowledgeable and competent to carry out the job. There have been innumerable instances where the Society has suffered due to wrong selection of a professional, which not only deprives the Society of obtaining a proper Document but errors in the Document would result in further hard ships that would arise during rectification and corrections that would be required to be incorporated in the Document for no fault of the members. Apart from the excessive expenditure, the time and energy that would be wasted in carrying out the said job is not desirable and can be avoided.

Finally, in a situation where the Society, following the provisions of the Byelaws, carries out the procedure as laid down in the Model Byelaws, and wherein they are required to approach the concerned person/s to execute the Conveyance Deed in favour of the Society and where they encounter problems such as:

  • Promoter (Builder) is non cooperative
  • Promoter (Builder) not available
  • Documents are not available
  • Members are unwilling and non cooperative

Under the aforesaid circumstances, there are certain remedies available for the Society to decide upon, wherein as per Byelaw No. 175C(c), they may approach the Civil Court for disputes pertaining to Conveyance. Generally, the time period for Court cases cannot be predicted accurately; yet, if the case is handled properly by a competent professional and where the required documents are made readily available within the stipulated period, a favorable Judgment could be achieved within a period of 5 to 7 years. Approaching the Civil Court has been one of the most preferred remedies considering the verdict that can be achieved from this forum.  Similarly another remedy for procuring the Conveyance would be approaching the Criminal Court where u/s 13 of the Maharashtra Ownership Flat Act, 1963, the Society could initiate legal proceedings against the Promoter (Builder) for non Conveyance, where if convicted, the Promoter (Builder) could face an imprisonment term of 3 years and or a fine of Rs.50,000/-.

Although this kind of a legal action could produce the required results, which the Society may consider, we do not advocate this remedy, as we are more keen to procure the Conveyance than imprison the Promoter (Builder) which we feel would not only antagonize the opposite party but make things a little difficult for the common members pursuing the matter. One of the other available legal proceedings, which are gaining far more popularity as an affordable legal remedy, is approaching the Consumer Courts with your grievances. Here, under the Consumer Protection Act, 1986, the Society can file case for defective service. Since, once you purchase a flat, you automatically become a consumer and as a consumer you enjoy certain rights and privileges, wherein as a flat purchaser and member of a Co-operative Housing Society, the Promoter (Builder) is required to convey the Land and the Building to the Society within four months of its registration. Also, as per the law, non Conveyance is an offence and for which the Promoter (Builder) would require making amends and may also require compensating for the wrong doing and or loss incurred on account of non compliance of the statutory requirements. One of the other important remedy that is in the pipeline, is the Deemed Conveyance Bill passed by the President of India. Unfortunately, although the bill has been signed by the Hon’ble President of India in the year 2008, it is yet to see the light of the day. We are optimistic that with the formation of the rules and the procedure involved, this remedy would be one of the most preferred remedies.

As per the bill, the DDR of Co-operative Societies has been appointed as a Quasi Judicial Authority who would be conducting a fair hearing by summoning the concerned Promoter (Builder) and the Society to pronounce his / her judgment which would be achieved within a period of 6 months. Once the Deemed Conveyance procedure comes into existence, we shall be able to comment on its outcome and effectiveness. As of today, we recommend that the Society appoints a professional consultant to assist and guide the Society to achieve the formalities for considering to move for procuring the Conveyance using any one of the above mentioned remedies. Considering our experience with a majority of the Societies where it is seen that documentation wise there are huge lacunas and lack of knowledge results in incomplete paperwork which prevents the Society from initiating the move to procure the Conveyance.

Conveyance is the right and privilege of every Society which comes into existence within four months of its formation. Considering the changing scenario in the real estate sector, expenditure for procuring the Conveyance would be comparatively negligible in comparison to the benefits the Society and its members would derive once Conveyance is procured.