A GUIDE TO DEEMED CONVEYANCE
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]