Real Estate 101 : Step 1 – Legal

The first step to getting your property is to ensure the Legal Aspect is clear.

What you should be looking for are:

1. Public Notice
2. Sale Agreement (Sathe-Khat)
3. Deed of Conveyance / Transfer (Kharedi-Khat)
4. Lease Deed
5. Agreement of Leave and License
6. Deed of Assignment
7. Gift Deed
8. Agreement of Tenancy: Rent Control Act
9. Will/Testament & Probate
10. Power of Attorney
11. Title Search & Title Clearance certificate
12. Declaration
13. Affidavit
14. Undertaking
15. Indemnity Bond
16. (Extract of ) Index II
17. Deed of Confirmation

PUBLIC NOTICE

It is advisable that prospective purchaser should consult legal advisor for any real estate transaction and get the documents verified & prepared by him to avoid unnecessary complications later on.

Before purchase of any property i.e. house, flat, plot of land etc. either out right or on lease (beyond 9 years), one should give Public Notice in two daily news papers preferably in English & other in local language i.e. Marathi, Hindi, Gujrathi etc. through the Advocate/Solicitor, asking for objections from any third party/ies having interest in the proposed transaction between seller & purchaser; with a time limit of 15 days from the date of its publications. The public notice consists of name & address of seller, description of property, time limit of notice, name & address of the advocate/solicitor etc. It is precisely mentioned in the notice that if no objections with necessary proofs are received within prescribed time limit the transaction will be completed. This notice will act as legal proof and serve as safety measure to any litigation at later stage. General format of such public notice is appearing hereafter: –

PUBLIC NOTICE
NOTICE is hereby given that Shri / Smt / M/s.____________________________
(Name of Vendor)
residing at ___________________________________ have agreed to sale & transfer of
(Address of Vendor)
their property ____________________________________________________________
(full description of property)
__________________________________________________________________ within the limits of ___________ Municipal Corporation, together with all the benefits, rights, clear and marketable title, free from encumbrances and with vacant possession thereof, to our clients.
Any person/s having any claim/s by way of sale, mortgage, lease, lien, gift, easement, exchange, possession, inheritance, succession or otherwise howsoever in respect to the said property and the same are required to intimate to the undersigned together with proof thereof within 15 days of publication of this notice failing which my clients shall complete the sale/transaction and all such claims, if any, shall be deemed to have been waived and/or abandoned.

Place: ____________
Dated: ____________ Sd/-
______________________________
______________________________
______________________________
(Name & Address of Advocate)

 AGREEMENT-TO-SALE (SATHE-KHAT):
This is a contract duly executed between the “Vendor” (Seller) and the “Purchaser”, and legally binding on both the parties. Generally this agreement-to-sale consists following details: –
Names, address, age and nationality of the vendor & purchaser.
History of ownership of seller with sequence of documents, and development rights acquired by the developer from the original owner/s; in case developer is seller.
Description of property i.e. Survey No., Plot No., C.T.S. No. etc. and Area of property.
The terms, conditions and convenants agreed by and between the vendor & purchaser according to which the property is agreed to be sold or purchased.
Specifications of constructions and list of amenities and facilities proposed to be provided by the developer/owner, for purchase of built-up properties.
Total purchase value/consideration & schedule of payment according to which the purchase price and other charges are to be paid.
Annexure documents of ownership by way of 7/12 extract / property register card, copy of approved plan / floor plan etc.
Title-Search-Report & Clearance certificate from the advocate / solicitor who has investigated the title of the property, for minimum period of 60 years.
Schedule of property giving description, location & area of the property agreed to be purchased/sold.
Notes: –
It is mandatory to register the agreement to sale with respective Registrar of
assurances within 4 months by paying adequate stamp duty & registration charges.
Please note that unregistered agreements/deeds are not considered by the
financing institutions and the Court of Law incase of litigations.

DEED OF CONVEYANCE / TRANSFER (KHAREDI-KHAT) :
This is an instrument of absolute transfer of all rights, title and interest of “vendor” (seller) and all his heirs, nominees etc. in perpetuity in favour of “purchaser/s”. The contents of this documents are more or less same as described in item No.2 (i.e. agreement to Sale) above.
In case of conveyance of multi ownership apartment schemes, all the flat purchasers have to form, a body, either by way of a Registered co-op. hsg. society/Apartment condominium to enable vendor to give/execute the conveyance of the building along with the land thereon infavour of such body/ies; as the case may be; at the end of completion of scheme.
Notes: i) This document is also required to be registered by paying stamp duty & registration charges; as stated in item No.2 above.
However the credit is given for the stamp duty paid initially by the flat purchaser/s while registering their agreement-to-sale, at the time of registration of the conveyance 

LEASE DEED :
It is also a contract by which one conveys real estate equipment or facilities for a
specified term and for specified rent; duly executed between the “Lessor” & “Lessee” and legally binding on both the parties for the lease period. Salient features of the lease deed are described below: –
The contents of the lease deed are more or less same as described in item No. 2 (Agreement to Sale) above with following different clauses: –
The vendor & purchaser so described in case of agreement to sale / conveyance are termed as lessor & lessee in this deed.
Lease period varies generally from 30 years to 999 years, or any period beyond 9 years, so agreed.
At the end of expiry of lease period, the lease is required to be renewed for further period on the terms & conditions, if renewal provisions are recorded in original lease deed.
Description of monthly/yearly lease/ground rent and premium payable by the lessee to the lessor.
Specific rights of development / constructions granted to the lessee, by the lessor.

In this transaction the ownership of land always remains & vests with lessor alone. By and large the lands belonging to the State/Central Govt. and public bodies such as Municipal Corporations, Port Trust, CIDCO, MHADA, MIDC etc.; (who provides necessary infrastructure for the development) offer their lands on lease basis, to public, with minimum lease period of 60 to 99 years, where the lessee is permitted to construct premises on the said land for specific users permitted, on the terms & conditions recorded in the lease deed.
Note: The lease deed also attracts stamp duty & registration charges

AGREEMENT OF LEAVE AND LICENCE :
This is a short-term contract (not more than 9 years) executed between “Licensor”
& “Licencee” and is legally binding on both the parties. Under this contract the licencee is permitted to use the premises, fittings & fixtures provided therein against monthly compensation payable by the licencee to licensor. The contents of this agreement are more or less similar to as described in item no.2 above.
Some of the important clauses of this agreement are as under: –
The term of licence shall always be less than 9 years.
The Licence can be renewed for further period if so provided in the agreement.
During the subsistency of agreement the licensor always remains the owner of premises; and the licencee has no rights other than granted in the contract.
The licencee can be evicted after licence period is expired.
The contract agreement can be executed on Rs.20/- court fee stamp paper. It is essential to register the contract to avoid litigations in later stage

DEED OF ASSIGNMENT:
This is an Indenture by which the property can be transferred to be held in trust, for the benefit of assignee/s and or creditors. The contents of this document are more or less same as described in item no.3 deed of transfer / conveyance above.
This document is executed between “Assignor” & “Assignee” by which the assignor assigns all his right, title, interest in the property to the assignee on the same terms and conditions according to which such rights are hold by the assignor, in perpetuity or the specific time limit as recorded in the document; and same is legally binding on both the parties.
Generally the deed of assignment is made in favour of assignee by assignment of rights of tenanted or leased assets, only when the assignor is empowered specifically for the assignment rights if so granted by the land lord, lessor etc. and not other wise.
The registration of this document is also compulsory for giving necessary effect of transfer in Govt. record. Un-registered document is not entertained by the court of law.

GIFT DEED :
This is a document executed by a “Donor”, voluntarily transferring his rights & interests in the asset in favour of “Donee”. In such case donee becomes a recipient of gift.

This document also consists of name, address, age, nationality of the donor & donee, the description and value of asset being gifted, place & date of execution as required for transfer of documents. By this document transfer of rights in favour of donee are in perpetuity which in other words can be termed as absolute transfer.
The assets so transferred under Gift Deed by donor to donee can be out of love affection; or special goodwill gesture; either in favour of any relation or otherwise.
This documents attracts the stamp duty and should be registered with registrar for giving proper effect of such transfer in Govt. records

AGREEMENT OF TENANCY : RENT CONTROL ACT
This is a contract executed between “Land Lord” & “Tenant” for use and occupation of the premises by the tenant against payment of monthly rent, which will remain valid and subsisting till the monthly rent is paid regularly to the land lord by the tenant.
Due to the provisions of Bombay Rent control Act and its amendments the land
lords are reluctant to give their specifically residential premises on monthly tenancy basis since it is almost impossible to evict the tenant and acquire the possession of the tenanted premises. On an average at present the tenancy agreements generally are executed for commercial premises.
With new Maharashtra Rent Control Act 1999, now the landlord is entitled and can charge: –
4% increase in monthly rent per year.
Official premium (Pagree) for transfer of tenancy.
Under this contract the landlord & tenant has to observe & discharge following
obligations:-
Land Lord: –
The landlord has to keep the premises in tenantable conditions.
The landlord can charge the monthly rent equal to permitted standard rent only.
The landlord has to pay property taxes and water charges to the local authority.
The landlord can evict the tenant for non payment of monthly rent and or for using the premises for the purpose other than users permitted, any time during the tenancy.
The landlord has to transfer the tenancy in favour of legal successor in case of the death of the tenant.
The landlord shall remain absolute owner of the premises so tenanted for all the time.
The landlord can take interest free deposit an amount equivalent to THREE months’ rent from the tenant, before granting tenancy, and has to refund the same on surrendering the tenancy rights & handing over the premises.
The landlord can not evict the tenant unless a breach is committed of any of the conditions of tenancy agreement by the tenant.
Tenant: –
The tenant has to pay monthly rent in time (Generally on or before 5th date of respective month) to the landlord; and also has to pay permitted increase in rent, and other charges so provided under the contract or by statute.

The tenant has to use the premises strictly for the same users as permitted under the contract.
The tenant can not make any structural additions or alterations and or do any such work which will endanger the building or the tenanted premises, without specific permission in writing from the landlord.
The tenant can not sub-let, under-let, give premises on leave & licence basis or create any third party rights in any manner whatsoever, any time during the validity of tenancy unless it is specifically provided & permitted under the contract, by the landlord.
The tenant has to pay electrical consumption charges and any other expenses so recorded in the contract.
The tenant can not object the landlord for any balance development or redevelopment of the property provided that the landlord assures and agree the tenancy rights of tenant as the case may be.
The tenant has NO right to use any other part of building or property of the land lord, and his rights shall remain Limited to the use of tenanted premises only throughout.
If the building is destroyed by any natural calamity such as flood, fire or earth quack, the tenant automatically looses his tenancy rights in the demised premises.
The tenant has to use the premises in decent manner and shall have to keep it in tenantable conditions throughout.
The tenant can not claim ownership in any manner whatsoever, of the tenanted premises or any other part of building or property of the landlord any time.
The tenant can be evicted by the landlord, if the tenant commits breach of conditions of the contract so accepted and agreed by him.

The format of the tenancy agreement is more or less is similar to the agreement of
lease / leave & licence described above in this chapter.
Notes:
i) Under the provisions of the Maharashtra Rent control Act 1999, it is a
responsibility of the landlord to register the tenancy agreement, under the Registration Act 1908.
ii) For detail information please refer “The Maharashtra Rent Control Act 1999”, applicable w.e.f. 31.3.2000

 WILL / TESTAMENT & PROBATE:
This is a written declaration made & executed by a person by which one determines the disposition of his estate to take effect infavour of beneficiary / ies only after his death and not otherwise.

This document generally consists of following: –
Name, address, age, nationality of the person making a will.
The names, addresses, age, relationship of persons who are named as the beneficiary/ies in the will.
Details of moveable & immovable assets and its value.

Details of the distribution of such assets, its nature, share and value granted to the beneficiary/ies in the will.
The place and date of execution of the will.
Minimum two witnesses, with their names, addresses in whose presence a person has signed & executed the will.
Notes:
A person can make as many wills during his / her lifetime, canceling his/her earlier will/s.
In a testament a person can record the wording in the document as a Final or Last Will.
The will can be executed on plain paper.
The will can become operative only after the death of such person and not other wise.
A person making a will should be in sound mind and health at the time of execution of will & he should record such confirmation in the will. In case of will made by very aged person with poor health, it is advisable to take appropriate statement / certificate from the medical practitioner where he confirms that the person making such will is of sound mind.
To avoid unnecessary litigations, it is required to obtain PROBATE from the court of law to establish the will as genuine and valid.
The probate court has jurisdiction chiefly over the probate of wills and also administration of the estate of deceased person.

POWER OF ATTORNEY :
This is a legal instrument executed by the “Grantor” & “Grantee”, by which
he/she appoints and authorise a person/s to act as his/her true and lawful agent/attorney to transact any or all business on his/her behalf; and legally binding on both the parties to the extent of powers so granted.
The power of attorney is granted by the owner to the representative of the developer, in case the development rights are granted to the developer.
It is essential that such power of attorney should be registered by paying adequate stamp duty and registration charges.
Following are some of the salient features: –
The grantee is commonly known as “Constituted Attorney (C.A.)” of the owner/s.
The grantee can not act beyond the scope of powers granted to him/her, by the grantor.
The power of attorney can be granted for limited purpose and acts; as well as for all the acts and deeds for unlimited time, so provided.
The power of attorney, unless irrevocable, can be revoked by the grantor for any contempt or breach of powers by the grantee.
The grantee can substitute the powers to any third party if so agreed by the grantor and specific clause of substitution is recorded in the power of attorney.
The power of attorney becomes automatically invalid, null and void upon the death of the grantor; and can not be used or exercised by the grantee there after.
Un-registered power of attorney is not entertained by the Court of law in case of litigations.

TITLE SEARCH & TITLE CLEARANCE CERTIFICATE :
For sale or purchase of any property it is essential, that the property must hold
clear & marketable title i.e. the property is saleable and is free from any defective rights. Before purchase of any property, it is required to examine the documents of ownership in Govt. revenue records; to ascertain as to whether the property has clear and marketable title and to confirm as to whether it is affected by any encumbrances, rights or interests of any third party, The purchaser through his advocate/solicitor should investigate in this matter before entering in to an agreement.
For investigation of title, the advocate/solicitor or his authorised search clerk make the inquiries with the office of Talathi, Tahasildar, City Survey Officer, Collector etc. and collects the information of mutation entries related to the ownership of the property from Govt. revenue records; for the last minimum 60 years; and prepares the report on the sequence of change of ownership from one hand to other up to date; along with all the information of third party rights if any. This exercise is called “Title Search Report”.
Based on the Title Search Report, response to public notice, and examination of title deeds (i.e. original conveyance / sale deeds declarations and other revenue & public documents more particularly described in the chapter of “Documents of Ownership”) the advocate/solicitor concern after getting satisfied that there is no risk to purchase the property, issues “Title Clearance Certificate” to the effect that the property holds clear and marketable title together with search report.
The title clearance certificate consists of following information: –
Name of present owner/seller and sequence of change of ownership, & third party rights if any.
Description of property i.e. Plot No., Scheme No., Survey & Hissa No., City Survey No., Name, Village, Taluka and District and Zone in which the property falls.
Area of property.
Short notes and findings from search report.
Certification of clearance and marketability of title of the property.
Note: Such title certificate is not required for the lands owned by State or Central Govt

DECLARATION :
It is a document of written affirmation made by a party (“Declarant”) for the use
of legal transaction (Not under oath) declaring certain facts related to the title, ownership
or interests in the property. These declarations are made by the owner and or his/her heirs or co-owners of the property or any other person having rights & interests in the
property thereof. The Declaration so made is legally binding on the Declarant to the extent of the statement made.
The Declaration can be made on Rs.20/- court fee Stamp paper.
The Declaration contents: full name, address, age, nationality of the declarant, and the items of declarations followed by the place & date of the declaration executed.

It is advisable to get the said declaration notorised by the Notary Public appointed by the State Govt

AFFIDAVIT :
This is a document of written declaration on oath; by the owner, co-owners or
any party having rights & interests in the property; and is legally binding on the person/s concerned. The affidavit in property transactions are executed by the owner on behalf of his/her minor children regarding their interest in the property.

The affidavit consists of following: –
Full name, address, age, nationality of the person making affidavit.
Items of affidavit followed by place where affidavit is executed and date of execution.

Notes: i) The affidavit can be executed on Rs.20/- Court fee stamp paper.
ii) It is advisable to get the affidavit notorised by the notary public

UNDERTAKING :
This is a written statement made by the person legally binding on him/her. In this
document the person concerned has to undertakes and agrees to comply with the obligations as stated therein.
The contents of undertaking are identical as mentioned in the item 13 (Affidavit) above. Such undertakings are given by vendor/seller for discharging specific performance during time limits prescribed therein.

Notes: i) The undertaking can be executed on Rs.20/- Court Fee Stamp paper.
ii) It is advisable to register the undertaking with Sub-registrar as unregistered undertakings are not considered in Court of Law in case of litigation.

INDEMNITY BOND :
This document is a writing of obligations agreeing to perform the contract
executed by one party (Indemnifier) to other. For the other party, it is a document if security against damage, loss or punishment, guaranteed by the Indemnifier, where the Indemnifier is liable to bear and pay the compensation against any loss or injury caused to the other party so indemnified.
The basic structure of the Indemnity Bond except specific indemnities, is one and the same as described in item No.13 above.

Notes: i) The Indemnity Bond is required to be executed on Rs.100/- Court fee
stamp paper.
ii) It should be notorised by notary public appointed by the Govt

 (EXTRACT OF) INDEX NO.: II :
This is an extract issued by the Registrar / Sub-registrar in a format for the
documents registered with their department; as an official confirmation of recording the transaction / document in their records. It is essential to obtain this confirmation (Index – II) as the same is required for all revenue authorities for giving effect to the transfer of ownership in their records such as 7/12 extracts & property register cards etc.

Index – II extract consists of following information: –
Nature of deed and amount of consideration.
Description of property such as Plot No, Survey and Hissa No., City Survey No. etc.
Area of property.
Assessment details of property.
Name/s of executing party (Transferor).
Name/s of claming party (Transferee).
Date and place of execution of document.
Date of Registration.
Serial No., volume & page of register in which the document is recorded.
Remarks.
Note: (Format of Index II is given as “Annex- D”).

DEED OF CONFIRMATION :
This is a legal document to be executed by and between the parties confirming
any prior execution of agreement / document which could not be registered within specific time limit. This deed consists the reconfirmation of all the terms and conditions according to which previous agreement is signed and executed by both the parties.
Notes: i) This can be executed on Rs.20/- Court Fee Stamp paper.
ii) Any executed documents must be registered within 4 months from the date of its execution.
iii) The registrar can grant additional time of 4 months on the application if satisfied with the reasons of delay.
If the executed document could not be registered for any reasons beyond 8 months from the date of execution then the parties has to prepare a separate “Deed of Confirmation” as stated above and it has to be attached with original documents for the purpose of registration