How to Resolve a Property Dispute in India?

Property is one of the most disputed legal issues in India. A property dispute refers to any legal dispute involving real property, also known as real estate. Real property is immovable property attached directly to the land. Property disputes may involve the following parties, including but not limited to:

• Neighbours

• Landlords and tenants

• Homeowners association

• Government agencies

• Trespassers

• Family members

• Property visitors

Because of the potential numerosity of parties and disputes involving real property, property disputes make up a large portion of legal claims filed each year. In many cases, legal remedies may include a damages award to cover the plaintiff’s losses, or an injunction ordering one party to remedy a property defect or preventing a party from doing something on his or her property (such as building a spite fence).

Common types of property disputes:

• Illegal possession of property: Disputes may arise regarding the possession of property when it is claimed that a property is not possessed lawfully or if the person in possession of the property is not authorized to possess the same. The applicable laws in this matter are given below. An aggrieved person can initiate a lawsuit under the following laws:

1. Transfer of Property Act, 1882

2. Indian contract Act, 1872

3. Indian succession Act, 1925

4. Hindu Succession Act, 1956

5. Muslim Succession Laws

6. Indian Evidence Act

7. Rent Control Laws

8. Land Revenue Act

9. Specific Relief Act, 1963

10. Code of Civil Procedure, 1908 in cases of trespass

• Title Disputes: Any person or persons may challenge the registration of a property in the name of another person or persons. Having title to a piece of property generally means that a person actually owns the property described on the deed. In these types of disputes the following laws are applicable:

1. Transfer of Property Act, 1882

2. Indian Contract Act, 1872

3. Indian Succession Act, 1925

4. Hindu Succession Act, 1956

5. Muslim Succession Laws

6. Rent Control Laws

7. Registration Act, 1908

• Rental Disputes: Landlords and tenants disputes regarding possession of property, rent dues or terms and conditions of the rental agreement. An aggrieved party can bring a legal action against other party under the following laws:

1. Rental Control Laws

2. Indian Contract Act, 1872

• Contractual Disputes: Disputes between two parties who entered into an agreement or signed a contract for use, sale, transfer, development, etc., of an immovable property will be contractual disputes. The following laws are applicable in these types of disputes:

1. Indian Contract Act, 1872

2. Specific Relief Act, 1963

• Disputes with cooperative societies: Disputes between owners of flat or buildings within a cooperative society and the society regarding non-payment of dues, non-recognition by the society of the member’s right / demands, allegation by member of mismanagement of the society, etc. In these matters the aggrieved party can initiate lawsuit under the following laws:

1. Specific Relief Act, 1963

2. Cooperatives Society Act of the concerned state

• Dispute between buyers and developers: Allegations by buyers of property about misleading or cheating by builders or allegations by buyers about non- delivery or delayed delivery of property by builders with or without claiming compensation, not conveying the title to the land to the society etc. In this situation the victim party can brings a lawsuit against the other party under the following laws:

1. Specific Relief Act, 1963

2. Transfer of Property Act, 1882

3. Consumer Protection Act, 1986

• Disputes between borrowers and banks: Disputes about the validity of the mortgages created, amount claimed by the bank from the debtors / guarantors, possession taken / to be taken by the bank and / or disposal of the property by the bank for non – payment of dues by the borrowers. The followings laws are applicable in these types of matters:

1. Banking Ombudsman Scheme

2. Consumer Forums Mechanisms

3. Transfer of Property Act, 1882

4. SARFAESI Act

5. Stamp Act, 1899

6. Registration Act, 1908

• Dispute between developer and Local Civic authority like Municipal corporation, Jal Board, Electricity Board etc., Local authorities objecting to developer’s inability to adhere to rules and regulations as specified in the master plans or terms of approval given to the builder. Disputes may also arise due to denial of necessary permissions to the developers without valid reasons. In their type of circumstances an aggrieved party can approach the court of law under followings laws:

1. Indian Contract Act, 1872

2. Right to Information Act, 2005

• Execution suit: One of the unsavoury events arising during a property transaction can be when the vendor of a property who initially had agreed to sell his / her property to the purchaser at an agreed sale consideration, changes his /her track. The party that is affected i.e. the purchaser has every right to file a suit against the vendor for specific performance of the agreement. If the court finds the claim valid, it may adjudicate and pass an order for execution of the sale deed in favour of the purchaser. The lawsuit can be initiated under the following laws:

1. Indian Contract Act,1872

• Declaratory suit: Suit for situation where title to the property is challenged or found to be questionable or defective. The circumstances make it necessary to get an order from the court on the title by filing a declaratory suit in a court of law. One can file a suit under the following laws:

1. Transfer of Property Act, 1882

• Partition suits: This will prevent the illegal occupant of the property from interfering with the possession and occupation of the property by its rightful owner. The partition suit can be filed under the following law:

1. Transfer of Property Act, 1882

• Money Suits: If one has lent money on the security of an immovable property by way of mortgage, and wants to realize it, he /she may have to file a suit for recovery of the money due from the mortgagor. If that fails to m arterialize, he /she may sell the property mortgaged for realizing the money. One can initiate legal proceedings under the following laws:

1. Rules and regulations related to mortgages.

• Disputes between quasi- judicial authorities: There are different types of litigations concerning land revenue, land acquisitions, title document, etc. which are heard and disposed of by several quasi –judicial authorities.

• Writ jurisdiction: Writ jurisdiction may be invoked against the decisions of the government affecting one’s property rights by filing a writ petition in the High Court concerned or in the Supreme Court for appropriate relief.

If you are a customer of eRealto.com then the company will provide you free legal aid through its legal department about any property concern.

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Impact of RERA on Real Estate

Property in Chandigarh

Impact of RERA on Real Estate

The real estate sector got its own regulator from May 1, 2017, the date when the Real Estate (Regulation and Development) ACT, 2016 (RERA) became effective in the entire country. Each state and UT have its own Regulatory Authority (RA) which will frame regulations and rules according to the Act. The ACT intends to protect the interests of home buyers and enhance transparency in the real estate sector.

Why RERA ?

For long, home buyers have complained that real estate transactions were lopsided and heavily in favor of the developers. RERA and the government’s model code, aim to create a more equitable and fair transaction between the seller and the buyer of the properties, especially in the primary market. RERA, it is hoped, will make real estate purchase simpler, by bringing in better accountability and transparency, provided that the states do not dilute the provisions and the spirit of the central ACT. The RERA will give the Indian real estate industry its first regulator. The Real Estate ACT makes it mandatory for each state and union territory, to form its own regulator and frame the rules that will govern the functioning of the regulator.

How will RERA impact home buyers:

Some of the important compliances are:

• Informing allottees about any minor addition or alteration.

• Consent of 2/3rd allottees about any other addition or alteration.

• No launch or advertisement before registration with RERA.

• Consent of 2/3rd allottees for transferring majority rights to 3rd party.

• Sharing information project plan, layout, government approvals, land title status, sub- contractors.

• Increased assertion on the timely completion of projects and delivery to the consumer.

• An increase in the quality of construction due to a defect liability period of five years.

• Formation of RWA within specified time or 3 months after majority of units have been sold.

The most positive aspect of this ACT is that it provides a unified legal regime for the purchase of flats, apartments, etc., and seeks to standardise the practice across the country.

RERA definition of carpet area:

The area of a property is often calculated in three different ways – carpet area, built-up area and super built-up area. Hence, when it comes to buying a property, this can leads to a lot of disconnect, between what you pay and what you actually get.

According to the RERA, carpet area is defined as “the net usable floor area of an apartment, excluding the area covered by the external walls, areas under services shafts, exclusive balcony or verandah area and exclusive open terrace area, but includes the area covered by the internal partition walls of the apartment.”

Impact of RERA on Real Estate Industry:

• Initial backlog.

• Increased project cost.

• Tight liquidity.

• Rise in cost of capital.

• Consolidation.

• Increase in project launch time.

Initially, a lot of work is to be done to get the existing and new project registered. Details such as status of each project executed in last 5 years, promoter details, detailed execution plans, etc., needs to be prepared.

With the advent of RERA, specialised forums such as the State Real Estate Regulatory Authority and the Real Estate Appellate Tribunal, are established for the resolution of disputes pertaining to home buying and the aggrieved party have no recourse to other consumer forums and civil courts, on such matters. While the RERA sets the groundwork for fast-tracking dispute resolution, the litmus test for its success, will depend on the timely setting up of these new dispute resolution bodies and how these disputes are resolved expeditiously with a degree of finality.

Which projects come under RERA:

• Commercial and residential projects including plotted development.

• Projects measuring more than 500 sq mts or 8 units.

• Projects without completion certificate, before commencement of the ACT.

• The project is only for the purpose of the renovation / repair / re-development which does not involve re-allotment and marketing, advertising, selling or new allotment of any apartments, plot or building in the real estate project, will not come under RERA.

• Each phase is to be treated as standalone real estate project requiring fresh registration.

Market situation after one year of RERA:

• There have been fewer project launches and the focus has been on execution.

• Developers have tried to adhere to compliances, to avoid litigation.

• Relaxed delivery timelines for existing projects has granted developers an escape window.

• The market is yet to witness any landmark judgment that could set a precedent.

For more information click on the following relevant links:

Property in Panchkula

Property in Zirakpur

HUDA Change the Building Codes: Allows Stilt +4 Buildings in Panchkula

The National Building Code sets down rules and regulations for constructing buildings. This code is prepared by the Bureau of Indian Standards (BIS). This code is applicable pan-India and states incorporate them in their by-laws. These guidelines have the purpose of regulating construction and safety norms.

This code makes builders responsible for the safety of people with a hefty fine levied if they violate the building code. It encourages new building technologies for speedier construction and it incorporates necessary changes keeping in view the requirement of modern buildings. Fire and safety norms are more specified for tall buildings. Such structures are required to have high speed lifts and clearance from the fire department.

The Haryana Urban Development Authority revised the building code in their by-laws in 2016 in which they made a provision for stilt parking and increased the height of buildings from 11meters to 15 meters in lieu of the stilt parking and increasing the height of each floor. Stilt floor is an open ground floor that has structural columns supporting the building structure. This provision facilitated parking and residential areas were not cramped with unruly parking. The building code allowed a stilt parking with 3 floors on top.

The Haryana government amended the Haryana by-laws in 2017 again when they allowed construction of a fourth floor on the ground without increasing the height of the buildings. The stilt parking is not mandatory anymore. This amendment was met with criticism in 2017 when the residents and architects protested that this would clutter residential areas with unruly parking and make roads difficult to maneuver. Certain sectors in Haryana have a provision for stilt parking and residents argued that the amendment is of no use to them. They further argued that the height of the buildings should be increased by 1.5 meters and stilt parking should be made mandatory.

The current approved height of buildings by HUDA is 2.4 metres for the stilt floor and 2.75 meters for one floor. When the height of floors is reduced, it is not ideal for summer as the ceiling is too low. Low ceilings trap the heat inside the rooms and ventilation is slower.

Engineers from Haryana have stated that the height of the buildings must be raised by at least 2 meters if another floor is allowed to be constructed. Unless the building codes allow residential houses to be more that 15 meters, no more than 3 floors must be allowed. Low ceilings and non-mandatory stilt floors are planning faults because this way people would indulge in chaotic parking and unauthorized construction.

This amendment in the building code resulted in many people constructing the 4th floor since 2017 in the hopes of selling the new floor as independent housing units. However, the Directorate of Town and Country Planning restricted the registrations of 4th floors in many HUDA sectors which angered residents. Haryana CM Manohar Khattar stated that he has asked the concerned officials to allow residents to register their properties in May 2018. Further action is still anticipated.

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Property in Chandigarh

Property in Zirakpur