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LEGAL DOCUMENTATIONS
     
REGISTERED DEED MUST FOR GIFT OF PROPERTY
A gift is a transfer of property without any element of consideration. The complete absence of monetary consideration is an important prerequisite. Where there is any equivalent of benefits, measured in terms of money, the transaction ceases to be a gift.

A gift refers to the transfer of certain existing moveable or immovable property by one person to another. The transfer should be made voluntarily and without consideration. The person transferring the property is called the donor. The person to whom the property is transferred is referred to as the donee. The donee must accept the property during the lifetime of the donor and while he is still capable of giving it. In case the donee dies before acceptance, the gift is void. The gift can be affected through a gift deed.

Any person who is competent to contract can make a gift of his property. A minor, being incompetent to contract, is incompetent to make a gift. A gift by a minor would be void. However, a minor can accept gifts. A natural guardian can accept a gift on behalf of the minor, containing a condition that the person nominated in the gift deed should act as a manager of the gifted property. Such acceptance would amount to recognition by the natural guardian of the nominated person as the manager or the agent of the minor, for the purpose of the gifted property.

The gift must be existing movable or immovable property. It may be land, goods, or actionable claims, and must be transferable. There cannot be any gift of future property. A gift must be of tangible property. Only an existing and tangible property is capable of being gifted.

Gift involves the process of giving and taking. There must be acceptance of gift as well. There is no particular mode of acceptance. The acceptance may be express or implied. Further, the property must be accepted by the donee during the lifetime of the donor. Fact of acceptance can be established by different circumstances such as donee taking a property or being in possession of the deed of gift alone. If a document of gift, after its execution or registration in favour of donee is handed over to him by the donor, it amounts to a valid acceptance of gift.

The donee is the person who accepts the gift. A minor may be a donee. But if the gift is onerous, the obligation cannot be enforced against him while he is a minor. But when he becomes an adult he must either accept the burden or return the gift.

A gift may be accepted by or on behalf of the donee. The donee may be a person unable to express acceptance. A gift can be made to a child and could be accepted on its behalf. The donee must be an ascertainable person.

Soundness of mind and age are important qualifications required for making a gift. A gift to be valid must be made by a person with his free consent and not under compulsion. The donor must not be insane. However, a mere weakness of the intellect would not be sufficient to invalidate a gift if the donor could apprehend the transaction.

The transfer of property must be voluntary and made gratuitously. It must satisfactorily appear that the donor knew what he was doing and understood the contents of the instrument and its effect, and also that undue influence or pressure was not exercised upon clear intention to make a gift.

Even when a gift is made by a registered instrument, it has to be accepted by or on behalf of the donee to make it complete, failing which the gift will be bad. The law requires acceptance of the gift after its execution, though the deed may not be registered. The acceptance may be signified by an overt act such as the actual taking of possession of the property, or such acts by the donee as would in law amount to taking possession of the property where the property is not capable of physical possession. Delivery of possession is an essential condition for the validity of the gift. However, it is not necessary that in every case there should be a physical delivery of possession. Possession, the delivery of which would complete a gift, may be either actual or constructive. The donor should divest himself completely of all ownership and dominion over the gift.

A gift of immovable property can only be made by a registered instrument. A gift of immovable property, which is not registered, is bad in law and cannot pass any title to the donee. Documents should be stamped with the appropriate non-judicial stamp, be registered as required and attested by two witnesses. Mere delivery of possession without a written instrument cannot confer any title. A deed cannot be dispensed with even for a property of small value.

                                                                                                   Courtesy:- TOI dtd:- 1st Nov 2008
 
 

NEW RENT CONTROL NORM TO PUSH INVESTMENT

 
     
 

In order to encourage investment in the housing sector, the government may bring in modified rent control norms favoring land owners. the revised norms would attempt to address concerns of landlords regarding forceful occupation of the property by tenants. It would also ensure that landlords can revise rents as per the market situation after intervals.

the Union urban development ministry has written to the governments of Karnataka, Maharashtra, Andhra Pradesh, Kerala and Delhi asking them to standardise their archaic rent control laws as per the new model which would set a standard rent or floor rate for a particular area. these five states are the only ones with a Rent Control Act.

the ministry is expected to implement its model rent control law in Delhi soon. “We would not fix any price bands for rent. It would be for states to decide as land is a state subject,” an urban development ministry official said. Although real estate is a state subject, the urban develop ment ministry regulates property-related issues for New Delhi as formal statehood has not yet been granted to it.

States have also been asked to disallow sub-letting. the Centre has warned that non-compliance would result in stoppage of fund flow under the Jawaharlal Nehru National Urban Renewal Mission (JNNURM).

According to experts, rent control laws are responsible for degeneration of the quality of life in civic habitations “When it becomes difficult to remove a tenant paying very low rent, landlords stop taking interest in maintaining the property. the tenants, too, don’t spend money on maintenance as they do not own it. the assets, therefore, deteriorate. We need to evolve a mature and long-term leasing market with best construction practices free from such controls,” DTZ India MD Ankur Srivastava said.

“If a state like Maharashtra, which projects itself as the next Shanghai, intends to live up to the expectations of a modern city, it has to resurrect its archaic laws governing rent. the same is true for other states,” said an analyst.

States, too, lose substantially in the form of low collection of taxes from rental income. A recent National Real Estate Development Council (Naredco) survey has estimated that at least Rs 2,400 crore annually is lost in Delhi alone due to low value of taxes on rented properties. this happens since the assessments are made on the rental values which are abnormally low, remaining unchanged at rates fixed half a century ago, thanks to the Rent Control Act.

                                                                                                        Courtesy: ET dtd: 04th Oct 2007

 
     
 

RECTIFY RECORDED ERRORS

 
     
   
     
 

While executing property documents, there are chances that some mistakes may creep in. this can happen in the process of execution of the documents. It is always advisable to get these mistakes rectified at the earliest, lest they create major problems at a later stage. the errors may relate to the name of the parties, their address, area of the property, dimension, location, survey number of the property, or the consideration amount. there can be typing errors or errors because of improper comparison with the property documents like the transfer deed, sale deed, title deeds and revenue records.

these errors can be rectified by the execution of a supplementary document called correction deed. this is also referred to as a rectification deed. It is to be noted here that there must have been a bona fide mistake where the original deed does not reflect the true intention of parties to the deed in question. the mistake should pertain to ‘facts only’ as mistakes of law cannot be corrected by means of a correction deed.

the parties to the agreement must concur on modifying the original agreement by addition, deletion, or rectification of any terms referred to in the already executed deed. the parties need to get the corrections into a duly executed document. Further, they need to pay the requisite stamp duty in order to get it registered with the specified authority.

A correction deed should be executed after mutual consent of all the parties to the main deed. All parties to the original deed should jointly execute the rectification deed as well. In case the original deed has been registered, one should get the rectification deed also registered, and pay the requisite stamp duty and registration charges as per the laws in force in the state concerned. For mistakes like spelling mistakes, the stamp duty and registration charges are Rs 100 each. In case the rectification deed relates to the area, names of the parties or the extent of the property, the stamp duty and registration charges as applicable to the conveyance deed are payable.

In case some of the parties to the agreement do not agree to such an amendment or rectification, the other party may file a suit before a court under Section 26 of the Specific Relief Act 1963.

the law provides for relief to parties in case the real intention of the party is not properly reflected in the documents executed because of a mistake. the relief would not prejudice the rights acquired by a third party in good faith for value. the parties claiming rectification should seek sanction of the court to such rectification in their pleading. If the court thinks it fit, the rectification will be specially enforced. Its important to remember that mistakes of law cannot be rectified through rectification deeds and a separate procedure needs to be followed.

                                                                                                                Courtesy: TOI dtd: August 11, 2007

 
     
 

CLEARING thE PAPER TRAIL WHILE BUYING A HOME

 
     
 

A home of one’s own is anybody’s ultimate dream. However, buying a house is not as easy as it seems. Here are a few impotant factors to be considered at the time of purchase

Buying a home is one of the biggest decisions of your life, as it may be the most significant investment that you can make for your family. there are many factors to be considered while purchasing property, both for first time buyers and the more experienced such as: whether it should be a new or second hand home, where it should be located, the lifestyle facilities which should be available, how you will finance the deal and most of all how you can follow up the legal work.

the Importance of Paper Work

After weeks and months of home hunting and the anticipation of finding something suitable, ensure that the closure of the deal does not drag on unnecessarily. All the required paper work, such as the loan papers, the lender’s and owner’s coverage, contract papers, title insurance, settlement statement and homeowners’ insurance must be completed legally before closure. All paper work compulsory under local and state laws must be completed to ensure smooth transfer of property. Negligence of these items may lead to financial penalties and, worst of all, forfeiture of your rights to that property.

Documents Required For the Purchase of a Home

Although the list of documents required for buying a home seems endless, the ones mentioned below are crucial and need to be completed legally, before closing the deal.

Title Insurance: this deed provides protection to both the buyer and the lender from all defects and fraud in the title works of the property. It ensures that the title is marketable in the future. Just purchasing a house, and moving in may not be the end of the story. Many title problems may arise subsequently inclusive of errors in public records, undisclosed liens and encumbrances, easements, forged deeds and undisclosed heirs to the property, etc. All this can affect the future value of your property. Lawyers provide title insurance as part of their services. they will examine the title and give your their title opinion. You can also obtain a title insurance directly from a title agent.

Allotment letter: this refers to all details regarding the time schedule by which payments must be made, the price agreed upon, the construction and delivery time lines, the house plans and the liabilities of the builders. Builders provide the allotment letter to buyers.

Lender’s coverage: In brief, every lender requires title insurance for the mortgage amount they provide. As the balance of the mortgage decreases during the term of the loan, this amount will also decrease.

Owner’s coverage: this is usually issued according to the amount of the actual buying price of the home. the owner’s coverage remains at a particular level throughout the ownership period.

Homeowner’s insurance: If you don’t pay cash while buying the property, the lender will require you to have a valid homeowner insurance policy, to protect both parties’ investment. this must be secured before the date of deal closure.

Possession letter: the handover details of the property from the seller to the buyer are recorded in this letter. Payment Challan: If you buy your home directly from a builder, then don’t forget to get the payment challan. this will stand as proof of the payment that you have deposited into the seller’s account.

Completion certificate: this ensures that your newly acquired property adheres to the requirements of the municipality or the state laws. You should get this certificate from the builder.

Original sale deed: You must have the original sale deed as signed by the first buyer and the developer, if you are thinking of buying the property from a private developer.
Termite certification: Most home buyers want their properties free from termites and other paracites. It is usually the seller’s responsibility to cover the cost of termite proofing and undertake activities necessary to acquire a termite proof certification.

Who Can Guide You with Your Paper Work

the list of legal documents required for the purchase of property is long enough to intimidate any buyer. So, it is always best to hire a lawyer who can assist you every step of the way.

Your lawyer will be critical to the systematic handling of documents and paper work in the process of the property transfer. He will inform you about your responsibilities and legal rights and answer questions related to payment of fees and financial commitments which you will make during the purchase.

                                                                                                                     Courtesy: ET dtd: August 3, 2007

 
     
  Documentation of a property plays a pivotal role particularly when a person (s) is buying it. However, the following may please be ensured before buying a property:-  
 

1. Clear title in the name of seller (s) with approval of change of Land Use (CLU) wherever applicable.

 
 

2.Whether the flat/house has been constructed as per the approved plans/norms.

 
  3. In case the seller (s) is a 3rd or 4th party, all the past document must in proper sequence. If any sale deed/document is missing form the sequence, the seller should be told to complete the same before finalizing the deal.  
  4. Credential of builder be checked based on past projects, if any or through the architect/contractor concerned about the quality or construction.  
  5. After satisfying all such points, ensure to get prepared the following documents:-  
  a. Registered Deed on payment of applicable stamp duty (to be signed by all sellers with photos).  
  b. In case of power of attorney  
 
  • Power of attorney.
  • Sale deed.
  • Agreement of money
  • Special power of attorney.
  • Receipt of money
  • Affidavits (as applicable).
  • Ensure to take all previous documents in complete sequence when the seller is 2nd/3rd/ or 4th party.
 
     
 
For more information mail to info@zameen-zaidad.com
 
     
     
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