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The Indian Property Conveyancing Guide
 

The Indian Property Conveyancing Guide

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The Indian Property & Real Estate Conveyancing Guide is a comprehensive guide for real estate buyers and sellers to learn how to protect their real estate transactions, know the conveyancing process, ...

The Indian Property & Real Estate Conveyancing Guide is a comprehensive guide for real estate buyers and sellers to learn how to protect their real estate transactions, know the conveyancing process, structure secure property agreements & simplify the legal aspects of buying and selling property. The Indian Property Conveyancing Guide has been developed by IndianPropertyLawyers.com India's first online platform for buyers, sellers, renters and landlords to connect with expert property lawyers and have their entire property related legal work done and delivered with ease.

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    The Indian Property Conveyancing Guide The Indian Property Conveyancing Guide Document Transcript

    • The Indian Property Conveyancing GuideWhat is Conveyancing?“Conveyancing” is the legal process for transfer of ownership ofproperty from seller to the buyer and this term is used in bothbuying and selling of immovable property. This process involves aset of procedures which have to be completed for transferringownership of an immovable property from the seller to the buyeragainst a valid legal consideration”A lot of steps are involved and every step again involves a lot of formalities andcompliance with legal requirements. Thus, the entire process can be very complex,intricate and fraught with the risk of omission and commission which in turn mayresult in future litigations, loss of investment and loss of the property.To ward off such apprehensions and for smooth completion of the desiredcommercial transaction of immovable property, the services of a property lawyer,such as brought together by “Indian Property Lawyers” becomes not only advisablebut indispensable. Our endeavor is to discuss threadbare the entire process ofconveyancing and it’s complexities through our “CONVEYANCING GUIDE” which isequally important for both “BUYERS” and “SELLERS” of immovable property. Inlesser ways it is of importance to both “TENANTS” and “LESSEES”, as that process isinfinitely simpler.
    • The Indian Property Conveyancing GuideConveyancing for the Property BuyerSteps and Requirements of Conveyancing in “BUY” transactions1. Searches for clear and transferable title of the proposed property.A person cannot transfer a better title than he / she himself / herself enjoys. This aspect can betaken care of by perusal of the “Mother Deed” and subsequent searches, based on theinformation contained in the mother deed. Searches are made with the various govt. bodies /offices such as Public Index in the Municipal office, Local registration office, Collectorate, Court,Land reform office, Land Revenue office, etc to confirm that the present seller is the real ownerand is entitled to transfer the ownership rights in the property, and the property is not chargedagainst any financial liability.2. Searches for Requisition, Acquisition, Encumbrance and chargesBased on the identification information in the mother deed, searches have to be made with Landacquisition office, Improvement trust and Land Reforms and Land Revenue office, etc toascertain that the concerned property, if it is a plot of land, is not under any notice of requisition/ acquisition, and the property is not subject to any encumbrance, attachment or any othercharges. Encumbrance / charge means some type of lien in favour of somebody / agency /authority against any dues / obligation / commitment. Generally such charges are created foravailing loans by creating a mortgage on the property either as principal security or as acollateral security. Right title and interest in an encumbered / charged property cannot betransferred unless the charge is released. This exercise is a must in all cases of propertytransaction.
    • The Indian Property Conveyancing GuideConveyancing for the Property Buyer3. Searches for statutory approvals:-If the property to be purchased is an apartment, constructed / being constructed on a plot ofland developed by a real estate developer, then it must be ensured that all the necessaryapprovals have been obtained from the relevant authorities for the project. Some of the mostimportant approvals required for the proper and hassle free development of a project andsmooth transfer thereof to the proposed transferee are site plan sanctioned by appropriateauthority / civic body; Government agencies such as land development authority, planningauthority; environmental clearance authority, Income tax clearance etc. These approvals differfrom case to case basis and are required wherever applicable. Physical verification of the originaldocuments and certificates must be done to ensure statutory approvals have been obtained andare valid. Close scrutiny of the reasons leading to the inordinate delay, abandonment, protractedlegal battles, pertaining to the projects under construction reveal that in most of the cases theroot cause of the projects being delayed / stalled / litigated is violation of the sanctioned siteplan, non-approval by relevant authority / agency or obtaining approval by misrepresentation /suppression of facts.4. Dealing with property involving “Power of Attorney”The property in question might have been developed / being developed by real estatedevelopers under POA, on plots of land belonging to different land owners (which is thecase in most of the instances at present) OR the property might have been / being sold by theseller in fiduciary capacity under POA in cases of auction sale. In all these cases the POA,ownership right of the Principal, the charge documents etc must be carefully perused andascertained that all the legal requirements in such cases have been duly complied with.5. Preparation of the sale agreementTo allow time for completion of the project (if under construction) or arrangement of funds bythe buyer (loan etc) the seller and buyer enter into a “Sale Agreement” pending registration ofthe final agreement. It’s a document in writing and prepared on a Non-judicial stamp paper. TheSale agreement contains all the relevant details with regards to the proper and completeidentification of the property, Seller and Buyer involved in the transaction. It also contains thedetailed terms and conditions such as consideration, schedule of property along with attachedeasements and inherent rights to common amenities, completion schedule, penalty for delay inpayment and termination of agreement charges etc. Sale agreement is the nucleus of the finalconveyance deed hence is to be prepared with utmost care. After execution of the Saleagreement by both the parties, it becomes legally binding for both the buyers and sellers toperform as per terms and conditions laid out in the agreement. Non performance / non-compliance with the terms and conditions of the Sale agreement amounts to breach of contractand becomes liable to be dealt with under Specific Performance Act. Sale agreement is the base/ primary legal document on the basis of which all the parties involved in the transaction,including lender(s), deal upon.By now the importance of the Sale agreement is amply clear and needless to say such animportant document must be prepared by and only by competent and expert legal professionalssuch as those brought together by Indian Property Lawyers.
    • The Indian Property Conveyancing GuideConveyancing for the Property Buyer6. Preparation of Draft Conveyance DeedAt the appropriate time of registration as stipulated in the Sale Agreement and by mutualconsent of the parties, a draft of the final conveyance deed is prepared for approval of all theparties involved in the transaction. It must be ensured that the identification of the property,seller and buyer and all other terms of transaction are the same as mentioned in the Saleagreement. Any variation in any of the terms and conditions must be by mutual consent of theparties. It must be ensured that there is no error of any nature including typing error.7. Preparing Final Conveyance Deed on Non-judicial stamp paper, Execution & RegistrationNon-judicial stamp paper, of appropriate value commensurate to the value of the property at therate of stamp duty prevailing at the place where the property is purchased (Stamp duty beingstate matter the rate differs from state to state) is purchased and the Final Conveyance Deed isprepared as per the corrected “Draft”. It is executed by the concerned parties and is alsowitnessed by at least 2 witnesses, and then the document is presented to the Registrar’s officehaving jurisdiction over the area, for registration. After completion of the process of registration,a paper token called IGR (Index General Register) is supplied by the Registry office, and onproduction of the same the original Conveyance Deed, duly registered, is delivered to the bearerof the token, when the deed is ready for delivery.8. MutationIt is a process by which the name of the property buyer is entered as owner of the concernedproperty in the records of the local Municipal office/ Panchayat office and collectorate office.After completion of the transaction of sale and purchase as detailed above, the property buyermust get the property mutated in his / her name as it substantiates the ownership rights overthe said property. Thus the transaction for “BUY”, after completion of all the above proceduresand inherent steps, is deemed to have been completed, and the entire process is collectivelytermed as “CONVEYANCING”.Though it’s true that all the above aspect s need to be tackled with utmost care, because even aminor lapse may send the entire deal and it’s after effect upside down. This is where the role ofa professional conveyancer like “IndianPropertyLawyers.com” into play and importance /indispensability of the services rendered by us can be underscored.
    • The Indian Property Conveyancing GuideConveyancing for the Property SellerSteps and Requirements of Conveyancing for SELLERSIt is a very misplaced notion amongst the seller(s) of the property that selling aproperty is disposing off (not creating) an asset and does not require the servicesof a lawyer to oversee the transaction on their behalf. A seller also needs theservices of a property lawyer to safeguard his /her interest and protect his /herasset from being eroded, which may be caused in the form of and by any/combination of factors as given below:1. Wrong description of Property:- The “Sale Agreement” as detailed above may be doctored tocontain a wrong description / identification of the property than the one intended to be sold bythe seller. The property mentioned in the sale agreement may be changed, to other primeproperty capable of fetching much more price, than the agreed price. This may cause immenseloss to the seller and to avoid the loss the seller may have to undergo litigation and could resultin heavy fees.2. Wrong measurement of the property under sale:- Similarly the area of the land intended andagreed to be sold may be intentionally inflated in the sale agreement. If the same is not detectedand corrected before execution of the agreement, will again cause huge financial loss to theseller and to avoid the loss the seller may have to undergo litigation, which again will couldresult in a loss.
    • The Indian Property Conveyancing GuideConveyancing for the Property Seller 3. Wrong selling price:- The agreed selling price / rate may be reduced substantially inthe sale agreement which again if not detected and corrected in time, may cause hugefinancial loss to the seller and to avoid the loss he/ she may have to undergo litigationwhich again will could result in a loss.4. Variation in terms & conditions:- The terms and conditions as agreed for the saletransaction may, while preparing the “Sale agreement”, be intentionally and willfullytwisted and made more favorable to the buyer at the cost of the seller. Suchsurreptitious moves by the proposed buyer must be detected and corrected in time, toprevent loss to the seller.5. Errors in the Final Conveyance Deed:- All / some or any of the aforesaid errors maybe intentionally and willfully made in the final conveyance deed, though they might havebeen correctly mentioned in the “Sale agreement”. The errors, if not detected andcorrected before the execution and registration of the deed, will cause financial lossesand protracted litigation to the seller.6. Non adherence to the time schedule:- If the time schedule for completion of the dealas agreed upon is wrongly mentioned in the sale agreement to make it favourable to thebuyer then the seller stands to loose. Suppose if the closure of the deal goes beyond thetime fixed for closure of the deal by 3 months then receipt of the sale proceeds or a partthereof, by the seller is also delayed by 3 months and the seller stands to loose theinterest on that amount for 3 months. The loss may be severe in terms of loss ofopportunity if the sale proceed was targeted to have been invested in any other timebound investment scheme. A property lawyer like those brought together by“IndianPropertyLawyers.com” will take care of this aspect by sending timely legalnotice(s) to and advising the buyer of the consequences of violation of the timeschedule.
    • The Indian Property Conveyancing GuideOnline and Offline ConveyancingThe complexities of the entire process of conveyancing, consequences of evenminor lapses in the process and the time required for persuasion and smoothcompletion can be easily assessed and this assessment in turn establishes theindispensability of an expert and professional conveyancer. These professionalconveyancers are available both offline and online with their respectiveadvantages and disadvantages which are discussed in detail herein below, foryou to compare, judge and opt for the option which suits you most.Offline Conveyancing: is done by property lawyer(s)/ advocates engaged in the legal professionin various courts of law. Finding a good property lawyer is always a challenge and we end uprelying on friendly advice of friends and family to choose one. In some cases conveyancing is nottheir primary / standalone profession rather it’s a secondary / ancillary profession for them.Whether or not a particular lawyer/legal professional accepts a conveyancing assignment at aparticular time depends on his / her engagement in their primary area of expertise. Uponacceptance of the assignment, all the related documents / papers are handed over to the lawyerby the party (Buyer or Seller) and for all the subsequent details / developments the party has tocommunicate / interact with the lawyer for further discussions and / or furnish further details /information as and when required. Thus till conclusion of the deal the party / employee /representative may be required to visit the lawyer on innumerable occasions or keep calling totrack the progress of their transaction.Online ConveyancingIndianPropertyLawyers.com have built a platform for property lawyers to deliver suchservices, keeping in mind the ease and comforts of the property buyers and sellers. The entiretransaction can be done through this online platform, including• Online Tracking: Stepwise developments and progress of the transaction• Communicating with your lawyer 24/7: may be done through the online platform 24/7; allowing a trail of written communication to minimize errors• A more efficient process - Personal visit by the property buyer or seller to the legal professional is totally dispensed away with in this user-friendly online conveyancing.Till date, in the Indian property market the entire conveyancing transaction was carried outoffline. The online conveyancing proposition has been conceptualized and materialized by“IndianPropertyLawyers.com” after extensive research and comprehensive market survey. Sincethe introduction of this user-friendly online service, people have started feeling the differenceand now more and more people are opting for online conveyancing. The property buyer orseller, based upon their criteria, has the option to choose from a vast pool of competentproperty lawyers. It allows for complete transparency and accountability of service. The entireprocess is amazingly user friendly and easy to operate that it does not need any guidance at all.You may satisfy yourself by posting your enquiry here.
    • The Indian Property Conveyancing GuideComparison Between Online andOffline Conveyancing
    • The Indian Property Conveyancing GuideThe Property Buyers’/Sellers’ Glossary ofLegal TermsAcquisition and Requisition:- Property under notice of acquisition / requisition by Govt. bodies,Quasi Govt. bodies, Public utility services such as PWD etc for public purposes.Agreement:- Terms and conditions mutually agreed upon by the parties concerned forperformance of a contract.Breach of Contract:- Non-compliance with and /or violation of certain/all terms and conditionsas mentioned in the agreement. The aggrieved party may seek legal recourse for performance ofthe contract by the violator.Caveat Emptor:- The buyer is required to know the condition of the property himself, may availthe services of a surveyor for the purpose.Charge against property:- Charge in the form of a mortgage against the immovable property,created by the owner in favour of the lender /financier for availing of financial assistance.Consideration:- The value of the property agreed by and between the parties (buyer and seller;mortgager and mortgagee) to be paid by the buyer.Contract :- The same as “Agreement”.Conveyance:- Preparation of the Sale Deed or the document by which the ownership rights in animmovable property is transferred from the seller to the buyer for a valid consideration. Thisinvolves preparation and execution of a conveyance / Sale deed to be executed by all the partiesinvolved. After execution the said document is required to be registered to complete the processof conveyance.Conveyancing:- The process by which, the “Conveyance” as above, is affected and legalownership in the property is transferred from the seller to the buyer.Conveyancer :- Legal professional(s) who carry out conveyancing.Covenant:- The expressed terms and conditions binding the parties to a contract. In other wordsthe rights and responsibilities OR obligations and restrictions of the parties.Easements:- Facilities attached with the property under transfer.Encumbrance:- Charge in the form of a mortgage is created against the property for raising fundand the property is said to be encumbered.
    • The Indian Property Conveyancing GuideThe Property Buyers’/Sellers’ Glossaryof Legal TermsEquitable mortgage:- Creation of charge in an immovable property in the form of asimple mortgage by deposit of title deed without any other legal formalities.Freehold property:- Property free of any charge against it. Owner enjoys absolute rightto sell or charge the property at any point of time.Leasehold Property:- The occupier buys the right to occupy / use the property up to acertain period of time.Legal mortgage:- Where charge is created in immovable property by executing amortgage deed and the same is registered.Mutation:- Recording the name of the buyer / transferee in the records of the local civicbodies / Land revenue office / Panchayat etc.Partition Deed:- The document which contains the details of the partition of the familyproperty amongst the members of the family. It is authenticated by all the members ofthe family. It may or may not be registered but carries legal enforceability.Searches:- The free and unambiguous right, title and interest of the transferor isascertained by searching the documents at collector ate, sub-registry office, Landrevenue office etc.Stamp duty:- Cost of the stamp paper which is payable to the state exchequer at therate prescribed by respective states for transfer of property ownership.Title Deed :- It is the “Record of Right” which establishes the ownership of the property.Transfer Deed:- The legal document which establishes transfer of interest from oneperson to another.Transferor:- Who transfers the right.Transferee :- Who gets the right after transfer.Note:- This is only an information document and not legal advice