An article about " Immovable property - Types of ownership "

Immovable property - Types of ownership

 

The ownership of an immovable property may be broadly classified into six types. The property may be owned by an individual company. Apart from this, the property may also be owned by two or more persons, jointly called co-owners. Co-ownership is of three types (1) Joint tenants (2) tenants-in-common (3) Co-parceners. The other type of ownership, are Benami Ownership, dual ownership, trustee and beneficiary, legal and equitable, ownership. We shall discuss each type:

(A) Joint ownership or Joint Tenancy

Joint ownership or tenancy is created by grant, device, dissersion. When a property is purchased by more than one person jointly and the deed does specify that the each purchaser has separate interest in the property, the ownership is called joint tenancy. The joint tenancy has four characters. Unity in title, unity in interest, unity in possession, and unity of time. Each owner has common interest in the property as a whole the interest of the each of the owners is similar in extent, nature and duration.

Similarly when the property is bequeathed jointly to more than one person, without specifying the each beneficiaries specific share, the owner-ship is jointtenancy and interest of each is similar in extent, nature, duration.

No simple owner has priority of title interest, right over others or separate interest right or title.

Acquiring the property under joint tenancy by dissersion more than one person enter into possession without title under such circumstances, the statures of limitations possession titled in joint tenancy unless the circumstances point to contrary.

In case of joint tenancy or joint ownership the property goes to the other co-ownership, survivorship and nor to the legal heirs of deceased co-owners. This concept of joint tenancy is basically a British Concept, but unknown in India except in cases of joint family property of undivided family governed by Mithakshara law. Law where the passes by survivorship. It is to be noted that transfer of property act does not provide for formation of joint tenancy. However Section 45 of the act states that When a property is purchased for consideration by more than one person and when the consideration is paid out of common fund, bequeathing to all, and when the terms of contract does not provide, how the property is to shared, right, title and interest of all the purchases is as that of what they are entitled to the common fund and in the absence of evidence of share of each in common fund all are presumed to be equal interest. The joint tenancy is in our country is an outcome of contract and nor a matter of law. As such if in case of joint purchasers, if the purchasers, wants to the property to held as joint tenants. Where thesuccession is by survivorship, a specific clause to that effect need to be added in the document. In the absence of such clause, the two courts may consider the title of tenancy in common. We may also refer to section 106 of succession act 1925, which recognises the joint tenancy. The section states that if an asset is given to two more pensions, jointly and if one of the beneficiaries dies before the testator will (one who makes the will), the other beneficiary takes the entire property. This section is applicable to Hindus also. Though this section prefers to only two beneficiaries, it has been held that reference to more than one person jointly means and includes not just two persons.

This mode of joint tenancy is of only temporary nature and ceases when one of the owner assigned his undivided share to a third party or when of the, owner contract to sell his share, by mutual agreement of all the owners by reverence of possession or partition, by notice by one or more owners to others or when the entire property vests with last surviving co-owner.

(B) Tenancy in common

This is different from joint tenancy or joint ownership. If joint ownership has four deciding parameters unity in interest, title, possession and time the tenancy is common has two characters, unity of tenancy where the owners do not have distinct share and own the property as a whole the tenancy in common, each owner has some specific undivided share in the property. This right, is passed to their legal heirs or beneficiaries under will and not to other tenants in common. Their share in the property is as per the terms of contract, or linked in their investment in property. In the absence of any evidence terms to share in the property is as per the terms contract, or linked to their investments in property. In the absence of any evidence terms to share in investments. All the owners have equal shares in the property.

(C) Hindu co-parceners

Hindu co-parceners is joint body of persons of Hindu undivided joint family. Each of the members are related to the head of the family within four degrees. The ownership of the property is like that of joint tenancy / ownership. Where each co-parcener do not have specific, distinct separate Share in the property, until partition is effected, on death of any co-parcener, the surviving co-parceners where is within four degrees to the hand of the family succeeds to the property as a member of co-parceners. Every member for in joint family, acquires the right in the family by birth.

(D) Benami Ownership

In Benami transaction, the persons who invests is different, and the person to whom property is transferred is different. The substance of the Benami transaction is that the consideration for transfer must flow from one person and transfer is taken in the name of another person and the consideration so paid for transfer of the property is nor a gift to the person to whose name the property is transferred. The Benami transaction prohibition act, 1988 completely prohibits the Benami transaction. The act has come into effect from 18th May 1988. Section 3(1) of the act provides that no person shall enter into a benami transaction, and succession 3 x 4 makes benami transaction, a criminal offence. Mainly exception is the purchase of property in the name of wife or unmarried daughter. However acquisition of the property in the name of the wife of co-parcener is benami transaction.

Section 4 of the act does not allow any legal action by the real owner to enforce his right against benamidar with some exceptions. When a person in whose name the property is held as a co-parcener is Hindu, undivided family which held for the benefit of such family and when a person who is holding the property is trustee Section 5 is more interesting. It provides that properties held in benami are subject to acquisition without compensation.

However, benami transactions made prior to the act are not illegal, but cannot be enforced as such by courts.

(E) Dual Ownership

In dual ownership the land belongs to one person and the structure on the land belongs to other person. Thus the property has two owners, one for the land and another for the structure. This type of dual ownership is very common where the owner of the Land ceases the Land to another with right to contract structures on the land and enjoy the fruits of such structures. The lease will be for certain specific period. The terms of the lease provide for as to how the ownership of the structure is to be determined after the expiry of the lease period. The ownership of structure may pass on the owner of the land or he may have pay certain amount to the lessee of the land to acquire the ownership of the building. Generally in most cases the lease will be renewed.

(F) Trustee and beneficiary

The trust in fact is another mode of dual ownership. There are two owners to the property in trust. Trustee and beneficiary. The trustee is the legal owner and the beneficiary is the beneficial owner. The ownership of trustee is of special type. Anyway he is not the absolute owner, and he has to abide by the terms and conditions of trust deed, and the author of the trust. He cannot exercise his rights for his benefit that for the benefit of the beneficiary.

(G) Legal and Equitable Ownership

In English law the ownership may of two types, legal ownership and equitable ownership. legal ownership has originated from common law and equitable ownership from principles of equity. but Indian law does not recognise the ownership by equity though certain equitable principles are recognised in India.

An article about " BIFURCATION OF BANGALORE "

BIFURCATION OF BANGALORE

The proposal to bifurcate Bangalore was discussed in the Council meeting of Bruhat Bangalore Mahanagar Palike (BBMP) on 29^th July, 2013 while discussing the provisions in the Budget 2013-14. It was argued that opinion of the elected representatives should be considered on the Bifurcation of Bangalore. Various points on amalgamation / bifurcation made since the creation of the local body during the year 1862 is discussed in this article.

The first local body for Bangalore was created by the British on 27-3-1862 to maintain civic services, and to develop the City. Its jurisdiction was not including the Cantonment area existing on the north of the municipal area. The Cantonment area was serving the civic needs of the Defense Department of the British as well as their administrative establishments. Later, a  Cantonment Board was established on  1-8-1862 to govern the Cantonment area. Municipal area and the Cantonment area were on either side of the Cubbon Park. The Cantonment area had wide roads some of which like; Cubbon Road, M.G. Road, Queens Road, etc are serving the present day increased traffic. The infrastructure in the Cantonment was with good public buildings, bungalows , parks and playgrounds, ornamental street lighting, avenues, etc serving the citizens who were mostly well-to-do migrated from other states like; Madras and Hyderabad serving the British establishments, and the service population. The City area, with local population, had narrow roads and small and medium sized houses. The two local body areas had their own markets, and civic amenities. They developed extensions also to meet the demands for residential sites. Basavanagudi and Malleswaram extensions were formed in the City area. Frazer Town and Richards Town, etc. were formed in the Cantonment area. These two local bodies in Bangalore continued till 8-4-1949 when the Bangalore City Municipal Corporation (BMP) was constituted under a separate act called ‘the City of Bangalore Municipal Corporation Act, 1949’. The City and Cantonment areas were amalgamated in the City Corporation after the enactment of this Act. The intention of amalgamation was to merge the two parts of the City artificially created by the British in spite of contiguous built up area of the city and dependant on each other for urban functions. The idea was also to avoid co-ordination problems in  Infrastructure maintenance and development. Mayo Hall which served as the office of the Cantonment Board accommodated some branch offices of the City Corporation . Later, notified  areas like; H.A.L.Notified Area, I.T.I. Notified Area, etc were constituted for proper maintenance of those areas covered  by village panchayats. The City functioned  well  under  the  BMP .

Only after establishment of I.T.P.L. at White Field and attraction of I.T. & I.T.E.S. sector  in Bangalore, migration of people for employment and other facilities from other parts of the State as well as other states, enabled rapid growth of the City. Bangalore Development Authority’s (BDA) inability to form extensions to meet the  demands of the rapidly growing City due to land acquisition problems, resulted in urban sprawl all round the City with un-authorised developments without urban services .

To maintain and improve urban services, and control the developments  in the areas all round the city, Government constituted seven city municipal councils namely; Rajarajeshwarinagra, Dasarahalli, Bommanahalli, K.R.puram, Mahadevapura ,Byatarayanapura, and Yelahanka, and  one town municipal council at Kengeri . Population of the City at that time was about 7.5  to   8.0  million.

The purpose of forming the city and town municipal councils was not served as the as the municipalities functioned only like bigger panchayats. These local bodies were  according illegal sanctions for developments, not following provisions of Bangalore Master Plan, not controlling unauthorized developments, collusion of officials with promoters of developments, not taking up infrastructure necessary, bad maintenance of infrastructure, etc. The chief executive officers of these municipalities were only of the level of assistant commissioners. Government after observing illegal sanctions by these local bodies withdrew their power of sanction of high rise buildings and entrusted that power to BDA. The areas all round the City with unauthorized developments in the municipal areas were  found to create problems for future extension of the City to continue road network proposed in the Master Plan, and extension of utilities and services.

In the year 2007, Government decided to amalgamate all these local bodies with the Bangalore City Corporation. The Bangalore Bruhat Mahanagar Palike ( BBMP) was constituted by including the areas in seven city municipal councils, one town municipal council, and 111 village panchayat areas. The municipal area was extended from 226 sq. kms  to  825 sq.kms with 197 wards. it may be noted that this is the second amalgamation of local bodies in Bangalore City. The first amalgamation was in 1949 when the City Municipal and Cantonment areas were amalgamated. The city as the favoured location for investment, is undergoing rapid  development. According to the Census,2011 , population of Bangalore City was 95.88 lakh or 95.88 million. At present( 2013),  the population is about 10.00 million. According to the present trend of growth, the City will have 13 million  population  by 2021.

Civic problems in Bangalore :

The civic problems in Bangalore are becoming bad to serious. Garden City has become a Garbage City. One may call it as Pot Hole City, and other names. The problems faced in Bangalore are the following:

·    Shortage of River Cauvery water for water supply  even to the   present population.

·    Garbage every where.

·  Serious traffic congestion, traffic accidents, and longer journey time wasting commuters’ time.

·     Serious parking problem.

·     Pot holes and road cuttings every where affecting  movement of vehicles.

·    Serious vehicular pollution due to movement of about 4.5 million vehicles in the City.

·   Sewage flow in major storm water drains, pollution of lakes, and overflowing manholes in older localities like Shivajinagar.

·     Over exploited  underground  water in Bangalore Urban District  requiring digging of bore wells to depths of 600 to 800 feet.

·     Too many unauthorized  sub-standard developments all round the City with  mixed land uses affecting  planned extension of the City to continue net work of roads, and utilities and services.

·      New parks and play grounds are not formed , and existing ones are encroached.

·      Too many thefts, chain snatching, and murders.

·      Shortage of funds, etc.

Citizens are suffering in Bangalore with bad living conditions. Why we are not maintaining the City like the large cities in foreign countries is not understood. There are large cities like Mumbai and Ahmedabad in India which are better managed. Our leaders and officials visit foreign countries but are not able to  improve governance in Bangalore for a better urban  situation.

Bifurcation of Bangalore :

The implications of bifurcation of Bangalore are the following :

o   It is not practically possible to bifurcate the city which has contiguous built up area, inter-dependant  on common  infrastructure , and civic amenities

o   If bifurcation is done, one authority will blame the other authority for civic problems in common areas.

o  Unnecessary increase in staff strength will be necessary to manage two separate authorities

o   Problem to settle sharing of cost of common infrastructure projects.

o   Problems for co-ordination between the two authorities. 

The urban situation will therefore not improve by Bifurcation of Bangalore.

Suggestions:

1. Bifurcation of Bangalore need not be tried again as bifurcated parts of the City were amalgamated twice; the first time when the City Corporation was formed in 1949, and the second time when seven city municipal councils and one town municipal council were amalgamated in the year 2007 to form the BBMP. The grounds for amalgamation were lack of co-ordination among different local bodies, developments all round not according to comprehensive development, and lack of control  on developments by the different  units.

2. Justification for taking up projects is to be  verified  whether it will provide public benefit, by consulting experts and the citizens organizations.

3. Only efficient officials be entrusted to carry out the projects within the target date , which should be reviewed periodically.

4. Economy in expenditure to followed with only necessary staff.

5. Transparency observed  in entrustment of projects to established firms.

6. Responsibility to be fixed on officials for compulsory supervision of works and report personal opinion before incurring expenditure on projects.

7. Finances of BBMP should be improved by proper collection of revenue  and avoiding wasteful expenditure.

8. Development control to be ensured by strictlyenforcing zoning regulations andbuilding byelaws. Officials colluding with builders/ property owners are to be punished.

Let not Government take a hasty decision to bifurcate the City, but organize the structure of BBMP for effective governance. 

An article about " Judgement "

Latest SC Judgment states Buyers will have to forfeit in payment if remaining installments are not made on time

Make sure that you read the agreement carefully before you buy a flat and sign on the dotted line. Recently in Delhi, a Buyer lost Rs. 7 Lakh to a Builder after he was unable to pay the rest of the amount for the property. As per on October 18, the Supreme Court Judgement, the Builder had the right to keep the initial amount paid and even cancel the deal since the Buyer had failed to make the payment on time. The property was worth of Rs. 63 Lakh.

The Purchaser of an immovable property could forfeit his money if he fails to pay the remaining sum, the apex Court said.

The Realty Experts believes the Judgment could set a dangerous precedent. “Builders who aren’t Professional could collect earnest money and then come up with some frivolous excuses claiming that the Buyer didn’t stick to the agreement, and thus call off the deal and forfeit the money.

The agreement holds the key to the deals. The Buyer will now have to be very cautious before signing and registering an agreement. Even a simple mistake could cost him not only his money but even the deal. This helps the Builders to save themselves from Buyers who give a small amount of money and then not pay the rest, because of which the Builder’s project gets stuck.

The agreement executed by the total amount from the Purchaser should be in conformity with the Law of the land.

A Builder has no right to collect more than 20 percent of the total amount from the Purchaser before executing the registered agreement. The Builders cannot collect more than 30 percent thus, aggregating 50 percent unless he completes the construction of all slabs of the building to be sold. Such rules should be read before signing an agreement.

An article about " Importance of curing in building construction "

Importance of curing in building construction

In concrete construction, the importance of curing cannot be over-emphasized. Concrete which is not adequately cured and loaded before it attains full strength is very likely to develop cracks. The cracks in concrete adversely affect its durability by corrosion of reinforcement.

IS 456-2000 (plain and reinforced concrete – code of practice) defines curing as “the process of preventing the loss of moisture from the concrete while maintaining a satisfactory temperature regime”. The moisture loss takes place in two ways. One is by evaporation caused by the heat generated during hydration of cement. Second is by evaporation aided by atmospheric temperature and wind. The evaporation caused by wind and atmospheric temperature increases when the exposed surface area of concrete increases. 

In the case of horizontal surface such as top of flat slabs, moisture loss is prevented by ponding – making a pond 8 cm to 10 cm deep and keeping it filled with water. If the surface is sloped or vertical, ponding is not possible. Such surfaces are covered by a layer of sacking, canvas, hessian or similar materials and kept constantly wet. IS 456-2000 stipulates that exposed surfaces shall be kept constantly wet at least for seven days if ordinary Portland cement is used, and at least for 10 days, where mineral admixtures or blended cement are used.

IS 456-2000 permits removal of vertical form-work of column, beams and walls after a lapse of 24 hours of placing concrete. It also permits removal of form work from the underside of slabs after three days if propos (vertical supports) are re-fixed immediately. Removal of formwork from the underside of slabs exposes the entire surface to atmosphere and abets moisture loss.  This part cannot be kept wet by ponding or by covering with sacking or hessian. Spraying of water is also not effective to keep the surface constantly wet. Thus, removal of formwork conforming to provisions of is code makes it virtually impossible to comply with the provision regarding continuous curing of exposed surfaces for seven or 10 days.

To speed up construction, the columns above the slab are raised the very next day of casting the slab. When column raising and shuttering for the upper slab are in progress, the ponding of the top surface of the slab is often neglected as it inconveniences the workers engaged in form work erection. The ultimate result is inadequate curing adversely affecting the strength and durability of concrete.

Now-a-days, there is a craze for shorter cycle time for slab casting. The cycle time is the interval between casting one slab and the slab immediately above it. A 10-day cycle time means once the slab at a particular level is cast, the slab immediately above it will be cast within 10 days. The concrete attains design strength in 28 days. Within that period, two upper slabs will be cast if the cycle time is 10 days. Form work blow the lower slab will have been removed, because IS code permits removal of vertical support below the slab (spanning upto 4.5 metre) after a lapse of seven days. The stipulation that forms shall not be released until the concrete has achieved a strength of at least twice the stress to which concrete may be subjected to at the time of removal of form work is conveniently overlooked. Thus, a 10-day-old slab, which, in all probability is not properly cured, carries the weight of the slab immediately above it. It is also subjected to impact load caused by the vibration of concrete and movement of trolleys carrying concrete.

Another instance of speed affecting quality of construction is in masonry and plastering. Bricks required for brickwork in cement mortar should be soaked in water at least for six hours. Earlier, the practice was to keep the bricks overnight in a tank filled with water and take them out in the next day for use in masonry. This practice is now seldom followed. The present day practice is to spray water on bricks kept in stacks. By this, the bricks in the inner layers sometimes even do not get wet. Brick, if not properly soaked in water, absorbs water from the mortar in the joints and it reduces the bonding between bricks and results in masonry with poor strength. Brick, if not properly soaked, will absorb water from the plaster mortar also. This will result in development of cracks in the plaster, which might also break up. The brickwork in cement mortar should be cured for seven days and plastering should be done only after the curing.  But, to save time, it is a common practice to start plastering earlier. This too results in development of cracks in plaster. Concrete blocks are being widely used in place of brick.  These blocks should be cured for 28 days for attaining full strength. It is now a common practice to use it much earlier.

Owners should resist the temptation to set unrealistic deadlines. Contractors in their eagerness to get the order should resist the temptation to accept such deadlines. Time is money, no doubt.  But trying to save money by sacrificing quality will prove only counter-productive.

An article about " Parameters for Purchase of Property "

Parameters for Purchase of Property 

Every person desires to have a house of his/her own according to his or her financial position. It is the emotional bondage towards the house that over weighs than the concrete structure of the house. Normally, a person invests money to acquire immovable property either once or twice. Therefore, the purchaser has to put forth a lot of efforts to get the immovable property with good, clear and marketable title. When once a property in a good locality with marketable title is purchased, he can live peacefully and comfortably in the said property.

It is not easy either to buy a new house/apartment or to construct a house. A person intending to purchase an immovable property either for his occupation or for investment purpose, has to look into various aspects involved in the purchase of an immovable property. If the desire of a person is to buy an apartment, then it is necessary to identify the right location and a reputed builder and if the desire is to construct a house, then a reliable and competent person to undertake the construction work is very necessary.

Selection of location

Before acquiring any property, more impetus should be on the location since it plays a paramount role in almost all aspects of the real estate. However, the process of identifying the location for owning any property depends upon the purpose for which such person intends to invest, which could be either for residential or commercial, since the priorities differ according to the purpose for which the property is intended to be purchased. Selecting a property situated at a convenient and suitable location will result in appreciation of its value and this in turn satisfies you, for having invested in a profitable property.

The location of the property depends upon the purpose for which the property is purchased. In case the property is purchased for self-occupation, a residential locality not far away from the heart of the city is preferable and in case the property is purchased for commer­cial purpose, it is very important that the property is to be situated in a place which is easily accessible to the public. One should not yield to the pressure created for purchasing a property at a cheaper price. Instead, one should ensure proper verification and examination of documents with extraordinary care. It is advisable to select properties situated in the layouts approved by the competent authorities, which, in turn would enable you to avail all the facilities within the layout. It is also important that the area should have basic facilities and civic amenities to ensure better enjoyment of the property. The infrastructure facilities should be good in all respects. That apart, the size of the plot to suit your pocket and the permitted FAR (Floor Area Ratio) are necessarily to be considered.

The first and foremost thing that should be kept in mind at the time of identifying the property is that the property intended to be purchased should not be located within the close vicinity of a slum area or place of worship or of a drainage line.

The following are some of the guidelines required to be considered while choosing the location:

• Generally, persons prefer to spend more time in their residences for rest, sleep and family interactions after they return from work. The location for residence should be free from air pollution and noise pollution. Good environments including natural light and good ventilation will be an added advantage from the health point of view. Added to this, an area inhabited by decent, educated and cultured people would be a gifted advantage.

• Civic amenities like park, school, police station, temples, community hall, hospitals, auditorium, should be available in the locality. Better road facilities will save more time to reach the place of work in time, though the location of the residence is little away. Apart from the above, it is also necessary that banking facility, ATMs, public conveyance, public telephone booths, Internet Centers and others are available within the vicinity of the property.

• Availability of water supply, power supply, ground water and sanitary line should be ensured and in case of bore-wells, then good ground water table is also necessary.

It is always good to purchase an apartment built in a layout approved by the competent authority, since it would ensure better amenities to occupants. The location must also be free of any kind of pollution or congestion. If the person wants to own a house or a flat for self occupation, it is advisable to prefer a purely residential area than a commercial one. It is also important that such layout should also comprise of well-laid roads with good sewerage system, along with regular garbage clearance. Care should also be taken to ensure that the location is not very far from the Work Place, Market Place, Educational Institutions, Hospitals, Bus Stand, Railway Station or other basic and important destinations.

For maintaining good health, it is necessary to inculcate the habit of jogging or walking regularly, for which Public Parks or Gardens with jogging track is necessary. Therefore, it is preferable to own a house or a flat wherein such parks or gardens are easily accessible. One thing that always concerns everyone is the parking of vehicle and other logistic issues, which we should ascertain before purchase.

Now, coming to the people residing in the vicinity, emphasis should be on an area inhabited by decent, educated and cultured people with a cosmopolitan outlook, which plays a major role in the personality develop­ment of an individual. One has to ensure that the area is not housed with anti­social elements who create social disharmony. In order to avoid noise pollution, it is necessary to verify whether any factory or workshop especially, the ones which work in night-shifts are situated in the immediate neighborhood. To ensure good sleep and less pollution, pick up an area, which is free from any factory or workshop (especially night working) in the precincts of your location. Further, the property located close to highways or heavy traffic areas are better avoided.

Value of the Property

Another important factor to be considered at the time of choosing a property is regarding the resale value. This naturally depends upon the location again. A developing area is preferable than a developed area, since the market value in the developing area is compara­tively low and value appreciation is more.

Non-availability of parking space and traffic congestion will have a negative impact on the value of the property. Accessibility to the rail­way/bus stations, airport, star hotels and availability of infrastructural facilities play an important role. The residential area should not be located on the main roads, highways, heavy traffic flow. It should not be near the area of high tension wire. It should be preferably away from the railway line to avoid noise, away from burial ground or cremation center. Besides, the location should not be in any low lying area to avoid water logging and inundation of water in case of torrential rains etc. Also, it should be away from lakes, water tanks, main drains and sewage water storing areas. The land should not be filled up with clay soil and not prone to land-sliding.

Vaastu Aspects

The concept of Vaastu plays an emotional role and solely depends upon the individual's belief and preference. Belief in Vaastu concept varies from person to person. It is seen that the concept of Vaastu has gained much momentum now a days. It is better to select an immovable property conform­ing to the Vaastushastra which may yield good value upon resale. Equally important is the selection of a rectangle or square site and direction wise, it is better to select North and East, as generally people do so. It is suggested that instead of banking upon the Vaastu alone importance may be given to the size of the plot and the Floor Area Ratio along with the price tag.

Financial aspects

The property scene is similar to that of speculative industry; prices can either appreciate  or depreciate, though the latter is rare. In fact, it is the difference in the amount of gain in value and the time taken to achieve such appreciation in value which is important. Slow and poor appreciation in value would be almost equal to depreciation while fast and large appreciation can give benefits like any other investment and that too without any effort on the part of the investor. A thorough study of title, location, develop­ments already in the area, the expected development in the area, other facilities already in place and surrounding places and a careful analysis of these factors before purchase can ensure great benefits and greater peace and prosperity to the purchaser.

In the sky-rocketing real estate price both in urban and suburban areas and mushroom growth of apartment culture in and around cities which are being sold at exorbitant price, nowa­days, a person may not be able to purchase a good property at a reasonable rate. It is always advisable to select a property to suit his budget, otherwise he will face a lot of problems and the income will go to repayment of the principal and the interest only. Nowadays, Bank finance/loan is easily available for long term i.e., 15 to 20 years subject to fulfilling their terms and conditions. Instead of purchasing 30 x 40' sitewith Ground + 2 upper floors, a person can purchase 60 ' x 40' site and construct only ground floor with further provisions to construct additional floors suiting to their requirement and budget at later stage.

Instead of purchasing an immov­able property in an isolated area, it is better to select it in an area having good road facility and public transport system which would be convenient for up and down traveling to work spot and back home and also helpful for the school going children. If you purchase a property in an isolated area, you are likely to encounter a lot of unforeseen problems.

Choosing a vendor

Conveyance of marketable title in favour of the intending purchaser is also one of the pivotal requirements which decide title of the purchaser over the property. Thus, while selecting a vendor/promoter, you need to undergo thorough investigation about the history of the Vendor or the Promoter and the title over the property. This can be done by scrutinising and verifying origin to trace the title, flow of title and the present status. In the case of Promoter, apart from the above, enquiry should also be made about the earlier projects undertaken by him.

Credibility of the vendor

Presently, the Real Estate is booming due to various factors viz. IT Boom, High salaried people, soaring share prices and the easy availability wide range of home loans. The Builders/promoters are having a field day, as the demand for properties is mounting. That being the situation, it is very important to opt for the purchase of a flat/apartment constructed by reputed Builders, because some builders, having no experience in the field of construction may take undue advantage of the mounting demand and may cause damage to the intending purchasers by making false assurance, with poor result and high prices. We hear a lot of stories about such bogus builders, whose motto is to cheat the people, collect the money and disappear with such money. At the outset, before making any kind of investment either in apartments or plots or in any type of property, it is very necessary to obtain the list of reputed builders who are involved in the real estate business from quite few years. Once such list is available, then it is necessary to make a thorough investiga­tion about the antecedents of the short listed builders. Invest your hard earned money in projects promoted by renowned developers having proven track record. Do not believe the words in the advertisement 'Financial Institutions approved Projects'

Track record of the vendor

Purchasing a property is time-consuming process involving various factors discussed above. Do not simply believe in a Developer's project presented in a colorful brochure with glossy photographs and pictures with a lot of promises to be undertaken. It is advisable that before investing your money in flats or in an independent house property, choose a well known builder/developer/promoter and in cases where vendor is an individual, ascertain genuineness of the owner­ship. Thoroughly check up the track record of the developers and verify successful completion of their earlier projects. Investing in an independent house or flat built by any unknown builder is always a risky act. Before booking a flat, it is necessary to verify the track record of the builder for prompt delivery, construction standards, adhering to the agreed cost without escalation, providing basic amenities. Ensure that the construction is carried out in compliance with the municipal laws without any deviations from the approved plan and also check the post sales service.

Do not depend upon the Developer's legal opinion obtained from their Advocates and you have to check up documents through your own Advocate.

It is advisable to try and meet the residents residing in the apartments constructed by such Builder.

If an offer to sell a flat/apartment is made for the price which is much lower than the prices prevailing in the market, then it is advisable to think it over than being carried away by the throw away price offer as such purchases may encounter some unknown problems.

The next important aspect after finalizing the builder from whom the property is intended to be purchased, other aspects such as promptness in delivery,construction standards, strict adherence to the agreed costs without anyescalation, providing all the basic amenities as promised at the time of booking are important.

Any document substantiating the claims of having obtained BDA's no objection certificate or approval from the competent authority should be considered only after verification of the genuineness of such documents.

Legal aspects

Buying a property with unclear title is like 'paying the money and buying headache'. Generally, owner of property with unclear title, either himself or through his agents/brokers offer the property at cheap rate and pester upon the prospective purchaser to buy his property at short notice. It is not advisable to purchase any property in an hurried manner. It is always better to subject all the documents to rigorous scrutiny, verification and   seeking  expert's opinion to ensure marketable title of the immovable property. In the process, proper and reasonable time need to be given for legal scrutiny and opinion. Upon such advice by Advocates, further efforts should be made to verify various records in the concerned Government Departments

Origin of Property

The origin of property, continuous flow of the title and present status of the property should  be thor­oughly checked. Services of an Advocate who is having specialized knowl­edge and practical experience in the property matters should be utlised. It is advisable to check up history of the property at least for the past 50 years. It is also important to find out existence of minor claims, court litigations, Government acquisition proceeding, Zonal regulations and other subsisting charges on the property.

Before entering into an agreement, the purchaser has to verify all the original documents pertaining to the title deed personally to make sure that immovable property is free from mortgage by deposit of title deeds and other charges created thereon. The deposit of title deed will not be reflected in the Encumbrance certificate.

Public Notice

The purchaser should act according to the advice given by an experienced Advocate. If an Advocate insists on issue of Paper notification in a leading local News paper, the purchaser can do so. However, the Paper notifica­tion cannot guarantee any title over the property. If anyone has any objection to the sale transaction, such claims or objections will come to light before sale transaction which may render a great help in taking further decisions. It is the duty of the vendor of a property to settle such claims or objections if any before sale. 

Further, a purchaser should make discrete inquiries and verify from the inhabitants ofthat location and also neighbours about ownership of the property to be purchased. Apart from verification of the main title deeds, scrutiny and verification of the support­ing documents like revenue records and other sanctioned plan/licenses etc., would help in ascertaining title of the property.

Safe investment

As far as residential property is concerned, it is safe to invest in those projects which are completed rather than those which are still under-construction.

For those who intend to invest on the property other than residential, for getting steady rental incomes, invest­ment on the ready to occupy properties may be a wise choice. Also, the possibil­ity of capital appreciation would be very great as ready possession property attracts premium market rates. Thus, purchasing an immovable property free from any kind of impedi­ments is a time-consuming affair and it requires selection and involvement of professionals such as Advocate, Architect, Structural Civil Engineers, Contractors and Real Estate Agents.

Tips in brief

1.     Scrutinise the documents with an experienced Advocate. Ensure that the documents of title of the property you intend to purchase are clear. Defective title will create problems at any point of time.

2.      Always go for a property, which has a resale value.

3.     Ensure that the building has been constructed as per the sanctioned plan and if there are deviations they should be within the permissible limit. The property should not be in a low-lying area.

4.     You may always rope in the services of a reputed real estate agent and fix his commission well in advance.

5.       Purchase the property in a developing area. The value of land will appreciate.

6.       If you prefer a ready-to-occupy flat, select a flat which is off the main road on a wide street with adequate water supply, away from cinema hall, marriage hall, open drain, factories and place of worship but not very far from school, college, commercial complex, temple and hospital.

7.       If you buy a Flat/Building under construction, visit the work site regularly and see the progress of work.

8.       You may not be a Vaastu believer, but purchase House or Flat or land that is Vaastu-friendly from resale point of view.

9.       If anyone offers flats/sites at a cheaper rate than the prevailing market rate, there may be certain hidden problems. So you should be extra careful in finalising the deal of such a property.

10.    Ensure that the developer has Clearance Certificates from government departments, viz., Electricity Board, Water and Sewerage Board, etc..

11.      Commencement Certificate and Occupancy Certificate are other important documents that are necessary while buying the flats.

12.      Check up the genuineness of the documents with the concerned authorities in person.

13.    Ensure Agreement for Sale and Sale Deed, duly stamped, executed and registeredare in your possession. Both should contain fair clauses for both the parties.

14.    In case of flat purchase, specification of the building, including material used, difference between the carpet area and the super built-up area are the important factors to decide the rate. Other facilities like Club House, Swimming Pool etc., will also have to be considered.

15.     Check up whether there is adequate water supply and sanitary line facility.

16.     In case of GPA transaction ensure the validity of GPA.

An article about " SOME COMMON LAPSES IN APARTMENT OWNERS' SOCIETY / ASSOCIATION "

SOME COMMON LAPSES IN APARTMENT OWNERS'SOCIETY / ASSOCIATION

The Apartment Owners' Associations / Societies basically are formed to look after the common interest of their members and their common assets and work as a non-commercial / non-profit making body. Though it is registered as non-commercial body, attempts are made to convert the Welfare Society /Association into a commercial and profit making body by undertaking or allowing commercial activities.

Further, though only the apartment owners are eligible to become members of Apartment Owners' Society / Association, but in reality, in certain associations, persons other than the apartment owners also become members of such association or society and also become office bearers of Board of Management. The non-owner office bearers may not have commitment for the common welfare and for the development of the association and thereby lapses do occur in the management of these welfare  associations.

The following are some of the lapses generally noticed in  the Apartment  Owners Welfare Association/Society:

LAPSES IN GENERAL ADMINISTRATION

1. No basic records are available with Society / Association. Even the Register of Members is not kept updated and copies  of Sale Deeds of Apartment in favour of  members are not available with Society / Association.

2. There exists  no office room  for the Society / Association. As such even the routine work of the Society / Association cannot be performed in a scientific and orderly manner. This would affect the preparation of the documents for the periodical meetings and the general body meeting.

3. No Attendance Register is maintained for paid staff of the Society / Association. No paid care-taker is engaged by Society / Association to work on full time basis. No duty list and timing is specified in his appointment order. No Security Deposit is  taken from the care-taker. 

4. Subscription and maintenance charges bills are not issued every month regularly, and even  if issued, these bills  may not  contain the penalty amount for the belated  payment of association fees. 

5. Defaulter list containing flat No., name of Defaulter and Amount due from him is not exhibited on Notice Board.

6. Outside public are permitted to use toilets in the apartment building in cellar portion. 

7. Passenger lifts are used for carrying heavy and bulky items. 

8. Visitors' Book is not maintained properly at the entrance of Apartment Building.

9. Sales persons are freely allowed to contact flat occupants for sale of their products.

10. Apartment building is not insured against fire, earthquake and other similar natural calamities.

11. Heavy amounts are spent without proper sanction of the general body of the society/association

12. 'SPECIAL PURPOSE DEPOSITS' are utilized for routine maintenance of the apartment building. 

13. Auditing of accounts is either avoided or delayed.

14. Maintenance charges are charged for shops on par with maintenance charges for residential flats. Maintenance charges for four roomed, three roomed, two roomed and one roomed residential flats are charged uniformly. Sharing of maintenance charges on pro-rata basis depending on the value of an apartment is welcome.

15. Commercial activity like Beauty Parlor, Creche, Toddler, School, Shops are permitted in residential flats. 

16. Mobile phone communication towers are permitted to be erected on the terrace of Apartment building.

17. Legal obligations of Society / Association such as 

(i) Submission of Annual Return of elected member of Board of Management

(ii) Submission of Annual Audited Financial Statement to Competent Authority 

(iii) Submission of any amendment to Registered bye-laws of Society / Association for approval and filing in records of the Competent Authority are not complied with.

18. Unauthorized construction in common area and inside the flats are permitted by Society / Association with tacit approval.

19. Society / Association allows additional floors to be constructed on existing building without Municipal Sanction.

20. Society/Association starts to function when only a part of the building is constructed without obtaining Occupancy Certificate from Municipal Authorities.

21. No. surprise checks are made during  night times to see whether watchmen are vigilant while on duty.

22. No surprise checks are made for unauthorized vehicle parking in the parking area.

23. No tripartile Agreement is executed between Society / Association, owner member and the tenant / lessee.

24. No copy of Registered bye  laws with amendments are given to new entrants as members.

LAPSES IN SAFETY, SECURITY AND MAINTENANCE

(a)Safety

1.       Inadequate fire fighting systems are provided in the Apartments buildings.

2.       The building is not insured against loss due to natural calamities like fire, earthquake, heavy rains, floods and lightening etc.

3.       There is no provision for lightening arrestor for tall buildings.

(b ) Security

1.      No proper security arrangement to check intruders entering into the Apartments building.

2.      Bodily weak, Semi-blind and semi-deaf security guards are posted in building for watch and ward duty.

3.      No visitors' book is maintained at entrance of the building and it is not carefully examined. Sales men have free access to each flat to sell their products.

4.     Two entries and two exits in an apartments building could pose  serious problem from  security point of view.

5.      Lack of compound wall all around and / or barbed wire fencing on top of it could again pose problem from security point of view.

6.      Absence of credential records of regular visitors to the apartment building such as Maid Servants, Dhobi, Newspaper vendors, milkmen etc. could also pose problem from security point of view.

7.     Watch-men are not given list of flat Nos. and their vehicle numbers (cars, scooters, motor bikes etc.). These lists would be  useful to watchmen to keep a watchful  eye on unauthorized vehicle using vehicle parking area.

(c ) Maintenance

1. There is no schedule of regular / periodical inspection of Apartments building to identify prevailing defects and to rectify them in time.

2. Appropriate steps are not taken to solve the insufficient Municipal water supply, defective in the water supply net-work, un-uniformed water supply in different floors of the apartment building and to each flat of the same floor.

3. Cob-webs and wild plants are allowed to grow and spread all over building and damage the building by creating cracks

4. Flower plants are allowed to die due to lack of systematic  watering of  these plants.

5. No plumber and electrician is engaged on yearly basis to attend day to day problems. Where yearly arrangement is made they are not renewed every year.

6. Vehicle parking area is not washed with water for years together.

7. Overhead water tanks and underground sumps are not cleaned periodically. 

8. Open wells are not covered properly and they are not cleaned periodically.

9. No stand-by pumping arrangement are made  for getting continuous water supply.

10. There are no long-term planning for maintenance of building resulting in the leakage in the Cellars during rainy season.

REASONS FOR LAPSES

1.     The Society / Association is not run as an institution. It is run in a very casual and informal way.

2.    Office bearers of the Society / Association normally work without remuneration and thereby they carry an impression that they are doing a favour to the Society / Association  by rendering  their free service and as such they are not answerable or responsible for all their actions in the society's work.

3.  There is no effective  machinery from Government to monitor the performance of these Societies / Associations to make them functional as  responsible institutions.

4.  There are no exhaustive Bye-laws for these societies to be followed by the office bearers of these societies. Therefore the Society / Association runs in an unscientific manner with no answerability for the lapses committed by the office bearers which in turn could harm the Society / Association.

5.    Most of the members of the Society / Association are uncaring and non-vigilant on the lapses committed by the office bearers. These members do not take active part in the functioning of the  Society / Association, but allow to be managed by a handful of persons which in turn would lead to mismanagement of the funds of the. Society, keeping transparency in its functioning at bay.

6.   Ignorance of applicable laws  and their non-application in day to day functioning of the society would bring in inefficiency in the Society / Association.

7. Absence of adequate and clear-cut provision in the Registered Bye-laws of the society would give encouragement for arbitrary unlawful decisions in the Society / Association.