A COMPLETE GUIDE TO DEEMED CONVEYANCE
Most of
the flat-owners of the newly constructed Societies/apartments do not have their
sale deeds or conveyance deeds. Mostly in the newly constructed buildings, the
builders provide for forming a housing co-operative society to which they shall
transfer their interest in the property. Then the builders form the society but
do not transfer the title of the property (read ownership) to the flat-owners
or the society till he has transferred all the
rights in the building/Societies/apartments. Thus the builders/promoters are
benefiting from the buyers lack of awareness and information.
To
curb this practice, amendments were carried out in the Maharashtra Ownership
Flats Act, 1963, in 2008 to appoint a Competent Authority (Registrar of
Co-operative Housing Societies) to hear the grievances of such
Societies/apartments owners and to safeguard their interest by executing deemed
conveyance of such societies u/s 11(3) of Maharashtra Ownership Flats Act,
1963.
Ved
Legal is having enough experience to deal with these kinds of Deemed Conveyance
of Co-operative Housing Societies, in and around Mumbai, Pune. Any aggrieved
society or apartment holder can get resolution from us in regards of the
same.
CONVEYANCE
AND ITS SIGNIFICANCE
Conveyance
is transfer the title of land and building by promoter/land owner in favour of
housing society by execution of Conveyance Deed. As per the provision
contemplated in Section 11 of Maharashtra Ownership Flat Act 1963, Conveyance
is the right of Co-operative Housing Society and the Duty of the property
Developer/Promoter to be executed within 4 months from date of Registration of
Co-Operative Society.
After
land and Building is conveyed in favour of Co-Operative Society and the title
of property is fully and finally recorded in the property card and other
revenue records then only the property becomes completely free and marketable.
As
per Housing Society Bye-laws the main objective of formation of the society is
to obtain conveyance and if conveyance is executed within 4 months from date of
registration of society case can be filed against the promoter /landowner of
the land to obtain the conveyance as per section 13 of MOFA 1963 failure to
give conveyance is an offence and the promoter/landowner of land can be
imprisoned upto 3 years or fine or both.
MEANING
OF DEEMED CONVEYANCE:
Deemed
Conveyance occurs when the builder/land owner or the legal heir refuse to
co-operate in handing over conveyance to the Co-operative Society under the
Section 11(3) of Maharashtra Ownership Flats Act, 1963. In such case, the
housing society has to appear before the District Deputy Registrar, who will
hear the case of both parties i.e. the housing society and the builder and
would pass the required order of Conveyance. It is a remedial measure obtained
by the society against the builder/landowner who does not wish to convey the
property since he/she sees a commercial gain out of the property in future.
This could include usage of potential FSI for their personal gain.
Deemed
Conveyance is final conveyance and the same can be registered. Once the
designated Competent Authority has passed the order, there cannot be an appeal
against it.
NEED
FOR DEEMED CONVEYANCE:
In a
situation when a promoter or owner of residential premises/ buildings does not
transfer/convey the ownership of the flats to the housing society or
association of persons (AOP), the society or AOP can make an application to
Registrar of Co-operative Housing Societies, to transfer the ownership of the
said flats to them. This process is carried on through Deemed Conveyance of the
title of the buildings and land in favour of the Society or AOP without the
need of the builder to do so.
IMPORTANCE
& PROVISIONS OF LAW ON CONVEYANCE:
As per
the Housing Society bye-laws, the main objective of formation of the Society is
to obtain the Conveyance; and if Conveyance is not given by the Builder within
four months from the date of registration of the Society, Case of Deemed
Conveyance can be filed against the Builder to obtain the Conveyance before the
District Deputy Registrar. As per Section 13 of Maharashtra Ownership Flats
Act, 1963, failure to give Conveyance in favour of cooperative housing society is an offence and the Builder can be
imprisoned up to 3 years or fined or both.
ADVANTAGES OF CONVEYANCE:
- Getting
a proper and legal title in the name of the Society.
- Retaining
the additional FSI as per the Government announcements.
- Property
will be free and marketable.
- Society
can raise the loans for repairs and reconstruction by mortgage.
- Permission
from planning authorities is possible if the building has to be
reconstructed at a later date due to dilapidation of the structure due to
age or by earthquake.
- Society
can take the benefit of TDR.
- Members
can receive compensation from Builder on redevelopment of the building.
DISADVANTAGES
OF NOT HAVING CONVEYANCE DEED
Even
though you have purchased ownership flat, you are not the owner of the land and
building. 2. In the event of a building collapse or damage to the building, you
cannot reconstruct the building without the permission of the Builder / Land
owner.
- The
Builder/Developer may mortgage the property purchased by you as he is the
legal owner and holding the Title Deeds of the Property.
- The
Builder/Developer may tap the benefits in case the building is
later taken up for redevelopment or if the plot has some unutilized floor
space index.
- The
Builder may make profit by sale of open spaces, gardens, terrace, parking
space belonging to the Society.
- The
Builder may demand a huge amount from the Society, if Conveyance is sought
by the Society after a lapse of many years.
- The
Builder may sell the entire Development Rights and the Legal Rights on the
land to third party and create a third party interest in the Property and
the Society will have to incur a huge amount to clear the same.
CONDITIONS
PRECEDENT FOR GETTING A DEEMED CONVEYANCE:
There are certain important conditions
which need to be fulfilled to go ahead for deemed conveyance, some of them are:
1. At least 60% of the flats in that scheme
should be sold.
2. A Co-operative Society or Association of
Persons should have been formed of the flat-owners and at least 3-4 months
should have been passed since then.
3. There should be communication between the
builder and the society or AOP regarding Deemed Conveyance wherein the builder
should have made a promise of completion of conveyance or refused to do the
same.
4 . A Resolution must be passed
PROCEDURE FOR FILING AN APPLICATION FOR
DEEMED CONVEYANCE:
After the above mentioned
conditions are fulfilled, the following steps shall be taken:
Write a letter /email to builder/
promoter requesting him to provide a draft of the SALE DEED/ CONVEYANCE DEED or
providing the draft to him and requesting him to sign the same.
- If the
Builder rejects or postpones the same, send him a legal notice through an
advocate requesting for the same.
- Even
then if the builder refuses, File an application with the Registrar of
Co-operative Societies together with all the relevant documents and 2,000
Rs. Court stamp fees.
- Self-attestation
all the copies enclosed (by the society)
- The
Competent Authority will assess the application and if any documents are
missing he will ask the applicant to correct the mistake within fifteen
days.
- Thereafter,
notice would be sent to the promoter and the land owners.
- After
receipt of the notice by the land owners and the promoters, the authority
will hear both parties in the first hearing and ask both parties to
produce further evidences in next hearing.
- Thereafter,
second hearing would be held and if the builder or landowners do not
attend both first and second hearing then the authority will pass an
exparte order.
- Thereafter,
the third and final hearing would be held and the authority would be held
and order would be passed unless a legal question is raised.
- Normally
the whole process is completed within a period of 6 months.
DOCUMENTS REQUIRED:
Further,
the application required to be made with the Registrar shall be accompanied by
copies of certain 20 odd documents which the society shall have to prepare or
get prepared.
The papers required for doing Deemed Conveyance are as
follows:
- Application
Form 7 to the District Deputy Registrar, Co-operative Societies, affixing a
court fee stamp of Rs. 2,000 on the application
- Affidavit
made before the Notary or Executive Magistrate True copy of the Society
Registration Certificate
- Stamp
duty paid and registered agreement copy of 1 individual flats/ shops with
Builder/Developer
- List
of members in prescribed format
- Index-II
for each member as issued by the Sub-Registrar of Assurance
- Copy
of the Development Agreement between land owner and builder
- Copy
of the Power of Attorney between land owner and builder
- Copy
of the legal notice issued to the original owner or developer for doing
conveyance
- Details
of corresponding address telephone number etc. of the original owner or
developer
- Draft
conveyance deed/ Declaration proposed to be executed in favour of the applicant
Documents to be obtained from City Survey Office, for
submission:
- City
(CTS) Survey Plan
- Property
Registration Card or
- 7/12
extract of the Land
- Village
form 6 (Mutation entries from Revenue Office)
Documents to be obtained from the Collector’s
Office, for submission:
- Copy
of the Non-Agricultural Order
- Certificate
of the exclusion from Land Ceiling Act (ULC) Certificate
Documents to be obtained from the concerned
Municipal Authority Office, for submission:
- Copy
of the approved plan
- IOD
- Commencement
Certificate
- Building
Completion Certificate
- Occupation
Certificate (not compulsory)
- Property
taxes paid
- Location
plan of the building
Documents to be obtained from other professionals, for
submission:
- Search
Report of the land issued by the Solicitor/Advocate
- Title Certificate
of the Property issued by the Solicitor/Advocate (Search by minimum for last 30
years)
- Land
Measurement Map/ Architect’s Certificate (layout plan of the plot)
- Certified
copy from Panel Architect about the utilization of full FSI or FSI if any left
in respect of the said property /Plot.
After, the Application is heard
by the Registrar he may grant an order for deemed conveyance which shall then
be produced before a court for execution and hence the conveyance may be done
by a court order.
PROCEDURE:
Stage
1- Preparation for Deemed Conveyance
During this stage the Managing Committee prepares the Members of the Co-
Operative Housing Society for Deemed Conveyance.
Stage
2- Documentation for Deemed Conveyance
During this stage the Documents Required for Deemed Conveyance are collected/
organized & the Case is prepared.
Stage
3- Legal Case for Deemed Conveyance
During this stage the case is filed before the Competent Authority & after
contesting the same the Order & Certificate upholding the right of Deemed
Conveyance of the Society is obtained.
Stage
4- Registration of Deemed Conveyance
During this stage the Deemed Conveyance Deed is Adjudicated, properly Stamped
& Registered.
Stage
5- Transfer of Property after Deemed Conveyance
During this stage the Society Name is incorporated in the Land Revenue Records.
- Preparation for Deemed
Conveyance:
This is a very important stage where
the Managing Committee prepares the Members of Co- Operative Housing Society
for the Deemed Conveyance.
The Managing Committee convenes a Special General Meeting (SGM)
of the Society by giving suitable notice highlighting the agenda.
The Managing Committee places before the SGM the difficulties
faced for obtaining the Conveyance from the Land Owners/ Property Developers.
The Managing Committee explains the effects of non- availability of Conveyance
to the Members. The Managing Committee explains the Procedure & Benefits of
Deemed Conveyance to the Members.
During this SGM the following Resolutions are
typically passed.
- Resolution
for going ahead with Deemed Conveyance
- Resolution
for Appointment of Authorized Representative
- Resolution
for Appointment of Legal Consultant for Deemed Conveyance
- Resolution
for Per Member Contributions
2. Documentation for Deemed
Conveyance:
This is the most crucial step in
obtaining deemed conveyance. It is a very meticulous job and make sure all the
documents are lined up within the right format. You would require land revenue
records, municipal corporation records, society records, property development
records and professional certificates.
All these documents can be
obtained from various departments such as Land revenue records from City Survey
Office, Tahasildar/Talathi Office & District Collector Office, municipal
corporation records from Building Proposal Department of the Municipal
Corporation. Society records and certificates can be obtained from society
offices and professionals.
Once all the documents are lined
up, society needs to fill in Deemed Conveyance Application- Form VII and
attached all the related documents. In case of deemed conveyance, a legal
notice is sent to the developer for their consent. In regular conveyance
procedures, since the developers or promoters are willingly providing the
rights lot of documents can be easily recovered from them.
Once the form is filled up and
all documents are annexed it is submitted to the Competent Authority- the
District Deputy Registrar of Co- Operative Societies of the particular
District.
3. Legal Case for deemed
conveyance:
Once the application is submitted
to the authorities they issue Deemed Conveyance Scrutiny Report- Form VIII
within 1 month. Once the compliance is provided the authorities issues Summons
& Newspaper Notices to the Land Owners & Property Developers for
appearing for the hearing.
During the hearing process
authorities take into consideration the arguments of the both parties. The
process takes place within 3-4 months. Once all the arguments are documented
the office issues a Deemed Conveyance order within 1 month. The whole process
is completed within 6 months as this is a time bound activity.
4. Registration of deemed
conveyance:
A deemed conveyance deed is
created during this phase and is signed by both societies and developers. If
developers do not appear for hearing in the prior stage (Which is the case in
deemed conveyance), authorities have the power to sign the deed on behalf of
developers.
The society needs to conduct a
meeting and appoint 3 members to sign the deed. Post that the deed is submitted
to district stamp office for adjudication. If all the members have paid their
stamp duty and if there is no balance FSI, the office issues adjudication
certificate. (Note – Deed only requires Rs 100 stamp duty). The adjudication
certificate needs to be then franked from local bank and resubmitted to
registration office.
The registration office then
issues notice to land owner/developer to verify if there is any stay order
against the deed of conveyance. (Note – The developer can get the stay order
only from high court). If there is no stay order the deed of deemed conveyance
is registered and then the office issues scanned documents and Index II. This
mark end of registration process and the society becomes the owner of the land
and structure.
5. Transfer of property:
In this phase a new application
is submitted to various departments to make mutation entries in their records.
This would make the process complete.
FOR MORE DETAILS CALL:
VED LEGAL,
Adv. GajananRahate
Mob: 9763040088
E_mail:
[email protected]
