Essentials of a Sale Deed

Nevin Clinton, Flywork.io TeamFlywork.io. 

    A sale deed is one of the most important documents in any deal involving housing or property. It is the document that proves one as the owner of the property. It is drafted when the sale is done and it is the one that completes the sale. It does so by transferring the ownership rights to the buyer. Provisions of the Transfer of Property Act, 1882, and the Registration Act, 1908 are the acts that govern the said sale deed. 

Now, once this deed is drafted and signed, the rights get completely transferred. Due to this, a sale deed is of paramount importance and it is essential that it is drafted in a well-organized and effective manner. Firstly, it is necessary to look at when a sale deed comes into the picture and to whom it is applicable. Simply put, the sale deed becomes essential when there is a sale of a property. It is thus applicable to both the seller and the buyer and acts as proof of transfer of ownership and hence, the ownership of the buyer. 

Sale deed and sale agreement are different terms

It is important to understand that a sale deed is not the same as a sale agreement. While the latter is merely an agreement to transfer the property later, the deed actually transfers the property. Naturally, for a sale deed, there are certain essentials that must be kept in mind to ensure that the deed is legally binding and to remove any difficulty which is dealt with below.

What are the essentials of a sale deed?

  • Details on parties: While drafting a sale deed, first and foremost, it is absolutely necessary to mention the name and the details such as an address, age, contact, occupation of the parties involved i.e. the buyer and the seller. It is a must that these details are bonafide. There must then be a description of the property with complete details on its dimensions, registration number, construction details, location, neighborhood, and so on. 
  • Consideration of sale: The sale deed must contain the exact consideration of the sale which is the price at which the property is being transferred. It must be mentioned in both words and numbers. Along with the same, the mode or method of payment must also be specified. Similarly, if the payment is being made in installments, full details on the same, the regular payment, and the time duration must be specified. There must also be complete clarity on the delivery of the property and how and when it shall be transferred. 
  • Other important clauses: Apart from the details of parties and consideration, there are certain details or ‘clauses’ that are must-haves in a sale deed. For example, there is a ‘Transfer of Title’ clause which is a key component as it expressly states the intent of the seller to transfer ownership of the property to the buyer. Further, Encumbrance clauses and Indemnity clauses are also essentials in this regard. The former is one that ensures that the seller has freed the property and hence the buyer of all existing charges like taxes, arrears, and so on. If there are any such charges, the indemnity clause takes effect as it indemnifies the buyer against them as well as any legal dispute relating to the property arising due to the prior actions of the seller.
  • Default clause: Finally, a sale deed must contain a default clause were details on how the penalty has to be paid by either the buyer or seller on defaulting can be elaborated. It can also include details on how to resolve disputes arising out of the same. 

Apart from these, there can be various other details and clauses that can be added as long as they are legally valid and fair. All of the aforementioned essentials must be kept in mind and included while drafting a sale deed.

The sale deed is of huge importance and therefore must be drafted by a legal personnel

The sale deed is of huge importance as it is a legally binding document that acts as proof of ownership. Since it contains a plethora of details on the transfer of the property, it provides clarity to not only the parties themselves but also to others who could be interested in the same such as an investor in case of resale. Thus, such a valuable document requires utmost care in drafting. Lapses in drafting could have huge repercussions and to avoid such a situation, care is required. This is exactly why drafting must be done preferably by legal personnel who are trained in doing it. 

Let the qualified curated professionals at Flywork.io assist you to resolve any legal and allied issues. For more details visit us at Flywork.io.

Property Buyer and Consumer Relief under RERA against Builders for Real Estate Dispute

What is RERA?

Real Estate Regulatory Authority popularly known as RERA is a newly implemented law – THE REAL ESTATE (REGULATION AND DEVELOPMENT) ACT, 2016 to ensure sale of plot, apartment of building, in an efficient manner and to protect the interest of consumers in the real estate sector. It also ensures a dedicated and speedy redressal mechanism.

 

What is the purpose and why did it come to place?

The act proposes and aims to create transparency in the real estate related transactions and to safeguard the consumer’s interests. This act is applicable to all the states within India excluding the  state of Jammu & Kashmir. To ensure a speedy dispute redressal mechanism.

 

Why do you need a lawyer for filing a Complaint?

A well drafted complaint can make your respresentation stronger and can help the tribunal to undertand your grievances better. A lawyer always ensures that during the drafting as well as the argument stage the content of the complaint, legal grounds and the arguments are enunciated in a manner which makes your case stronger and clearer. The complainant might not be able to do the same themselves and hence they need a lawyer to represent their case.

 

When can you file a complaint?

Any homebuyer who seeks redressal for their grievances are welcome to file a complaint with the RERA. The problems which a homebuyer generally faces with the builders are as follows:

1. Delay in delivery of possession of the property

2. Mismatch in the guise of floor area & carpet area

3. Misrepresentation of design and construction parameters

4. Malpractices like improper amenities, ceiling leakage, improper drainage system, incomplete fire safety system, low quality of electrical wiring, improper water provisions.

5. Not providing occupancy certificate, or

6. any other deficiency in service

If one is facing, any of the abovementioned grievances, they can easily approach the forum to seek redressal.

 

Who can file a complaint with RERA and against whom can the complaints be filed? 

Any aggrieved home buyer or the consumer under the ambit of RERA can bring a lawful suit against the developer or the promoter.  The documentary procedure to file a complaint is represented below :

How can we file a complaint with RERA?

Filing complaint before Adjudicating Officer of Regulatory Auhtority

Duly filled "Form M" along with a fee of Rs. 1,000 paid using a demand draft payable where the seat of the said Regulatory Authority is situated[3].

Filing an appeal before Appellate Tribunal

Attested true copy of the order  alongwith duly filled "Form L" along with a fee of Rs. 1000. The composition of the authority is :- Chairman + 3 members ; Chapter X of the act.

 

How is the interest to be paid calculated in RERA matters, as per the RERA guidelines? 

Instead of an algorithm or a calculation on the rate of interest to be charged under the RERA guidelines, it is rather fixed and changes as per the SBI rate.

 

Approximate Rate of Interests :-

State Bank of India Prime Lending Rate plus two percent (paid by the promotors and the allottee).

 

How is the interest calculated when there is already a clause for liquidated damages, in the Agreement to sell between the parties.

It is the duty and obligation of the promotor/developer to obey and be governed by the terms and conditions of the agreement signed by him/her in lieu of the sale of the said apartment. Failure to obey such terms will make him liable for an action under the RERA act. Meaning thereby, that the sale agreement terms will take precedence over the default conditions set under the law until and unless the agreement stands in contravention to the RERA act.

 

How to determine the jurisdiction while filing the complaint?

Filing a complaint under RERA is governed as per the simple Civil Procedure code concept of Territorial Jurisdiction i.e. to be filed before the adjudicating officer of the area where the project/home lies or where the cause of action arose.

Registration of a Sale Deed

What is a Sale Deed?

A sale deed is a legal document that enables a party to transfer property from one person to another. It is defined under Section 54 of the Transfer of Property Act, 1882 as; “Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Thus without a sale deed, there would be no evidence to attest the transfer of a property, further there would be no evidence to facilitate subsequent transfer of the property.

Registering a Sale Deed

In order to register a sale deed the following steps have to be undertaken:

  1. The value of the property has to be estimated based on the circle rate (minimum value set by the state government's revenue department or the local development authorities at which the sale can occur) in that area.
  2. The circle rates of the area and the actual price paid for the property are compared. While calculating the stamp duty the higher of the two values, i.e., the circle rate and the actual price paid, has to be taken into consideration. Non judicial stamp paper of the value so calculated has to be purchased thereafter.
  3. Subsequently, the deed has to be prepared and typed in stamp papers.
  4. The final step involved for getting the sale deed registered is to approach the Sub-Registrar’s office in order to get the sale deed registered. The parties must be accompanied by two witnesses.

Key Components of a Sale Deed

The essentials that one must keep in mind while preparing a Sale Deed are the following:

  1. The Sale Deed must be classified as either a ‘Deed of Sale’ if the property is being sold, or as ‘Deed of Mortgage’, if the property is being leased or mortgaged.
  2. The Sale Deed must contain accurate information pertaining to the sale. A Sale Deed is said to be void if it does not contain the correct information of the buyer and the seller.
  3. The Sale Deed should have relevant information so as to enable a person, identify the immovable property which is the subject matter of the deed.
  4. A Sale Deed is incomplete if it is not accompanied by a Sale Agreement. The Sale Agreement contains all the terms and conditions that have been agreed to by the buyer and the seller.
  5. Finally, the Sale Deed must also contain the Proof of Registration of the property.

Land Bill Decoded

The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Bill, 2015 was introduced in the Lok Sabha on February 24, 2015.  The Bill amends the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (LARR Act).[1] The 2015 Bill aims to alter the LARR Act, 2013 as it was criticised for strangling economic growth by making it difficult for the industries to acquire agricultural land.[2]

This Bill introduced some changes in the old Act but was passed by the Lok Sabha with some changes. The first major change that was introduced was regarding the consent required. The LARR Act, 2013 stated that consent of 80% of land owners was required for private projects, consent of 70% of land owners is required for public-private partnerships and no consent is required for government projects. The 2015 Bill exempted 5 types of projects from seeking consent and they are:

  • Defence
  • Rural infrastructure
  • Affordable housing
  • Industrial corridors
  • Infrastructure and social infrastructure including Public Private Partnership where the government owns the land.

The Lok Sabha passed this consent provision by excluding social infrastructure from the exempted category of projects. It also defined industrial corridors as those set up by the government/government undertakings, up to 1 km on the either side of the road/railway corridor.[3]

The second important point was the Social Impact Assessment (SIA). The LARR Act 2013 provides that SIA is mandatory for all projects except in cases of urgency or in cases of irrigation where an environment impact assessment is required. The Bill states that the government can exempt all those five categories mentioned in the consent clause from this provision as well by issuing a notification in the Official Gazette. Lok Sabha passed this provision with an addition that the government before issuing a notification should ensure that the land being acquired is being kept within the land required.[4]

The third important aspect is regarding the Irrigated multi cropped land. The LARR Act 2013 provided that the irrigated multi cropped land cannot be acquired without the limit specified by the government. The Bill allows the government to exempt projects falling under the five categories mentioned in the consent clause from this provision as well by issuing a notification to that effect. The Bill was passed by making the same addition as made in the SIA provision.[5]

The fourth important provision is regarding the compensation and rehabilitation & resettlement provisions of 13 other laws which govern land acquisition. The LARR Act 2013 excluded 13 other Acts from its ambit and also required that the compensation and rehabilitation & resettlement provisions given under these 13 Acts be brought in consonance with the LARR Act. The Bill does not bring about any changes with regard to this provision.

The fifth important aspect is regarding the retrospective application of the Act. The LARR Act 2013 provided that the Land Acquisition Act, 1894 would continue to apply in those cases where an award has been passed under the 1894 Act. However, if the award was made five years or more before the enactment of the 2013 Act, and the possession of land has not been taken or compensation had not been paid, the 2013 Act would apply. The Bill states that in calculating this time period, the following will not be included: (i) any period during which the process of acquisition was held up due to an order of a court; (ii) a period specified by a Tribunal for taking possession; and (iii) any period where possession was taken but the compensation was lying deposited in a court/designated account. This provision was passed unchanged.[6]

The sixth change was regarding the definition of ‘private company’ which was altered to private entity in the 2015 Bill. The LARR Act was applicable for the acquisition of land for private companies. The Bill changed this to acquisition for private entities. A private entity is defined as an entity other than a government entity, and could include a proprietorship, partnership, company, corporation, non-profit organisation, or another entity under any other law. This provision was also passed unchanged.[7]

The last change is regarding the provision of Offences by the government. The LARR Act 2013 had provided that if an offence was committed by a government department then the head of that department would be deemed guilty unless he can show that he had exercised due diligence to prevent the commission of the offence. The Bill deleted this provision and was passed as it is by the Lok Sabha.[8]

With these changes the Bill was passed by the Lok Sabha but the government was forced to refer this controversial land acquisition Bill to the Parliamentary Committee because of the opposition from other political parties. The government is open to all kind of suggestions and is sticking to its stand that it is a pro-farmer Bill.[9]

Ii is in fact a blessing in disguise that the land acquisition Bill is progressing slowly, since passing the Bill in haste harmful. There is no denying the fact that having a difficult procedure to acquire land makes it difficult for the industries to grow but the farmer’s interest is also to be kept in mind in a country like ours where the major population of the country is in the rural belt and is dependent on agriculture, animal husbandry and the like. The government should ensure that a balance is maintained between the interests of the industries and farmers. That is to say if the country hopes to become industrially sound and is aiming at the expansion of the industrial sector then land should be given to the industries but the farmers should also be adequately compensated for giving away their lands and not be left empty handed. One can hope that the government delivers what it promises, while the country awaits the Ache Din…!!

[1] The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Bill, 2015, available at www.prsindia.org (last visited on 25 May 2015)

[2] Land Bill reintroduced in Lok Sabha, opposition walks out, Live Mint May 11, 2015, available at www.livemint.com (last visited on 27 May 2015)

[3] LARR (Amendment) Bill, 2015 as passed by Lok Sabha, available at www.prsindia.org (last visited on 25 May 2015)

[4] Supra note 3

[5] Supra note 3

[6] Bill Summary – The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement (Amendment) Bill, 2015, available at www.prsindia.org (last visited on 25 May 2015)

[7] Supra note 6

[8] Supra note 3

[9] Land bill referred to joint panel, Live Mint May 13, 2015, available at www.livemint.com (last visited on 27 May 2015)

 

Picture Credits: http://articles.economictimes.indiatimes.com/2015-02-25/news/59461067_1_land-acquisition-bill-congress-floor-leaders-finance-minister-arun-jaitley