Tax benefits from an under construction home

 

Taking a home loan for an under construction apartment is quite beneficial as the customer can avail the deferred deduction on the interest payable during the pre-construction period. The loan seeker can avail the entire amount as deduction in equal installments starting from the financial year up to five years and till the construction is complete.

Tax exemption for an under construction property:

The pre-construction phase is the period which starts from the date of the borrowing and ending when the construction is completed. The Indian Income Tax Act states the conditions under which an employee with salary can claim the tax rebate on the interest payment for the housing loan. The Section 24 of the Income Tax Act states that if a property is still to be constructed, there will not be any deductions on the interest payment all of those years. The interest for the pre-construction period can be availed for the deduction in the 5 equal installments from the year the construction is complete.

 

How can one avail tax benefits from an under construction property?

• The Section 80C allows tax benefit for the amount paid towards the Stamp Duty and the Registration process. However, the tax rebate on principal repayment may not be allowed when the property is under construction.
• If there is a delay in the project and the possession doesn’t happen on the given date, one cannot get the tax benefit for the principal and the interest.
• One can avail the tax benefits at the time of filing the income tax returns.

Explanation of the Section 80C:

This Section states that, for the purposes of purchase or construction of a residential house/property the income from which is chargeable to tax under the head income from house property (or which would, if it had not been used for the assessees own residence, have been chargeable to tax under that head), where such payments are made towards or by way of;

•  Any installment or part payment of the amount due under any self-financing or other scheme of any development authority, housing board or other authority engaged in the construction and sale of house property on ownership basis; or
• Any installment or part payment of the amount due to any company or co-operative society of which the assessee is a shareholder or member towards the cost of the house property allotted to him; or
• Repayment of the amount borrowed by the assessee from

(1) The Central Government or any State Government
(2) Any bank, including a co-operative bank
(3) The Life Insurance Corporation
(4) The National Housing Bank

How to stop benami transactions of property?

Benami property ownership means ownership of a property in the name of a person who has not actually paid the consideration for purchase of the property. Benami owner(s) only lend their name(s) for purchase of a property where consideration is paid by some other person. Such lending of name is done for some gain and the property is held by the owner on behalf of some other person who has actually paid the consideration. A person lending his name for such transaction is called “Benamidar” and such transaction is called “Benami transaction”.

Ostensible ownership and Beneficial ownership Ownership

Ownership of the property standing in the name of a “Benamidar” is “ostensible ownership” but the “beneficial ownership” of the property does not vest with him, rather it vests with the person who has actually paid the consideration money.

Purpose of benami transactions

Benami transactions are a conduit to channelize black money earned through corrupt and illegal practices. This route is also used to circumvent certain socially beneficial acts such as Land ceiling act and to conceal assets disproportionate to the known source of income. Property is purchased in the names of family members, relatives, friends and sometimes in fictitious names. Such transactions are very common and rampant in real estate sector. Very recently it has been alleged in 2G scam that even some telecom companies which got 2G license, were in fact merely acting as front face hiding the actual investor behind them. The scam in Adarsh Housing, Mumbai has also revealed that a good chunk of properties therein was “Benami property”.

Benami Transaction (Prohibition) Act, 1988

To tackle the menace of black money, benami transactions and corruption, this Act was enacted in 1988. The act has provisions of imprisonment of up to 2 years and/or fine or both, but the act has never become effective because rules to make it operational could not be framed. Central Board of Direct Taxes was the implementing authority for the law and was supposed to frame the rules.

Benami Transactions (Prohibition) Bill, 2011

The Government proposes to replace the earlier act with enactment of the new law for stricter control over benami transactions by plugging off the loopholes in the existing law. This Bill has provisions for confiscation of benami property by the Adjudicating Authority after the person concerned has been given due opportunity of being heard.

Gift and relinquishment deed for transfer of immovable property

 

Of the various methods for transfer of ownership rights in a property “Gift” and “Relinquishment” are two such methods. Both the aforesaid terms serve the same purpose of transfer of property, have similar implications, but the circumstances in which these are executed are different.

Gift of immovable property

Gift is defined under section 122 of Transfer of Property Act, 1882 being voluntary transfer of ownership rights in a property, without any material consideration, where natural love and affection to a living person is the only consideration. It must be free, voluntary, absolute and unconditional except where it is given for any specific purpose such as educational, charitable and /or religious. Generally gift is irrevocable but in case of gift for specific purpose, the property reverts to the donor when the object fails due to events not depending on the will and pleasure of the “donor”. It must be made through a written document called “Gift deed”, duly accepted by the “Donee”, witnessed by two witnesses and the deed must be registered with Registrar/ Sub-registrar of assurances as mandated under section 17 of Registration Act, 1908. If the gift is made to spouse, blood relation of either of the spouse, lineal ascendant or descendant of either of the spouse, any family member then there is no tax implication except the cost of the stamp paper on which the gift deed is prepared. Though there is no restriction on gift to non-relatives but such gift is taxable.

Relinquishment of right

Relinquishment of right is referred to the surrender of one’s ownership rights and claims in a property in favor of another person. It is not defined under Transfer of Property Act. but is an established practice. Relinquishment of right is not without any consideration, the consideration may be in the form of money, exchange of property or arrangement between family members. Relinquishment of right in immovable property also needs to be done only through a written document called “Deed of Relinquishment” which must be signed by all the parties, witnessed by two witnesses and must be registered. Unlike gift relinquishment does not enjoy tax benefits and is taxed for capital gains.
In both the aforesaid cases the “Donor” and the “Relinquisher” must not be a minor, must be mentally sound and capable of taking rational decision pertaining to disposal of property and must be capable to contract.

How can a second home reduce your tax burden?

 

Buying a second home for various reasons is one of the latest real estate trends. It is a source of pride for the second home owners to own another home with sufficient income and unsullied credit. Although a second home might serve you as a great asset, it is wiser to know the advantages and disadvantages before going for a second home. One has to know the reasons to buy a second home and should know if it is for investment purpose or for personal purpose.

Most people who own two homes are confused and fret on how to repay the home loan with the high interest rates. However, there are certain situations wherein they can reduce the tax liability if they avail the deductions on home loans in case of a second home.

 

Benefits of a second home:

Having a second home can result in the exemption on interest rate:

• If a home loan is taken for a self-occupied property, the principal amount repaid will be qualified for the deduction.
• However, if a loan is taken for a second home, the interest payment will be eligible for the deduction.
• If the second home is given for rent, the loan taken for the second home will not have any limit for the deduction for interest payment.
• In case the home is yet to be constructed, an amount of interest paid during the pre-construction period will be used for tax deduction. This rule is effective for five years from the time of construction and the complete possession.
• Having a second home can increase your net worth. After buying the second home, the home appreciates the value and increases the total net worth.
• Apart from just an investment aspect, a second home also serves as a luxury medium. This also provides you peace and solace away from your regular residence.

 

The deductions will be allowed on the income from the second home:

• If you have a second home and is lying vacant, you will still have to pay the rental value. The notional or the deemed income will be added to your taxable income.
• The home owner can deduct expenses, such as municipal or property taxes paid from the deemed income.
• Also around 30 per cent of the net annual value will also be allowed for deduction.
• In case you incur any loss after the deduction of expenses from the income that you earn from the property, you will have an option to set the current year’s loss against the income from property. In case your balance continues to be low, you can proceed with the loss for about eight years.

 

Save on tax:

Having several homes will give you an option to choose a particular home for the living. However, the income from this property will be treated as nil and exempt from tax even if the home is on rent. This home will have the limit of 1.5 lakh to be deducted as loan interest. Whereas, the interest on the loan taken for the other houses will have your income deducted as tax. It is advisable to choose the house with the highest loan as the non-exempt one in order to maximize the savings.

Essential terms of purchase and sale contracts for immovable property

The transactions involving sale or purchase of immovable properties need to be handled with utmost care, transparency, honesty and dignity. If these are followed, a lot of heartache and drainage of investment can be avoided. However a common citizen may not be aware of the legal stipulations or obligations while transacting in immovable property.

Section 55 and sub-sections of the “Transfer of Property Act, 1882” confer certain Duties, Rights and Liabilities on the Seller and the Buyer. They’ve been listed below and they should be taken in to account while entering into any deal of immovable property.

Responsibilities and Liabilities of the Seller

• The seller has to disclose to the buyer any material defect in the property or in the seller’s title.
• The seller is deemed to contract with the buyer that he / she enjoys full rights over the property which he / she intends to transfer to the buyer, and that he / she has authority to transfer the same to the buyer.
• To produce to the buyer all documents of title relating to the property and to answer relevant questions of the buyer in respect of property and the title.
• To execute a proper conveyance of the property, on payment of the due amount, at a proper time and place. Generally, it is the sub-registrar’s office.
• To pay all public charges, rents, taxes, in respect of the property up to the date of sale.
• To deliver, after receipt of the price or as agreed, to the buyer all documents of title relating to the property which are in the sellers’ possession and power.

Rights and Liabilities of the buyer

Section 55 (5) (a) to (d) of “Transfer of Property Act, 1882”, imposes upon the buyer certain duties, while Section 55 (6) (a) and (b) of the “Transfer of Property Act, 1882”, entitles the buyer to certain rights, as detailed below:

Duties of the buyer

• Where the buyer is aware of the seller’s interest in the property of which the seller himself is not aware, then the buyer must disclose it to the seller.
• To pay or tender the purchase price, to the seller or his authorized agent, at the time and place of completing the sale.
• To bear any loss arising from the destruction, injury or decrease in value of the property after ownership of the property has passed to the buyer and such destruction / injury is not caused by the seller.

Rights of buyer

• To the benefit of improvement or increase in value of the property where the ownership of the property has passed to him.
• Where two properties are subject to a common charge and one of the properties is sold, the buyer is entitled to get the charge satisfied out of the other property without affecting the property purchased by him.
• To compel the seller for specific performance of the contract to the extent of the seller’s interest in the property, where he has paid the purchase price

Can a property buyer Own or occupy terrace of a society building?

 

Owning or occupying of terrace of a society building is unfair and illegal practice. 

Builder/developer has no right to sell the terrace.

Some developers of the co-operative housing societies resort to the unfair practice of selling the roof top / terrace. It has also come to light that in some housing societies, owners of the flats at the top floor claim ownership of the terrace and dissuade other owners from using the same. Both these actions are contrary to the stipulations made in law.

According to section 4 (1A), (iii), (viii), (x) and section 10(1) of Maharashtra Ownership Flats Act, 1963, builder/developer has no right to sell terrace. No measure either individually or collectively give any authority to any builder or even the society to sell terrace of a building. As per law all open spaces in a building including the terrace is a common easement for benefit of all the members, who are entitled to enjoy the same as shown in Municipal Corporation records. No single member can appropriate and deprive others of the benefit of common easement. When the BMC sanctions a building plan the terrace is not taken into consideration for the purpose of calculation of Floor Space Index as it is for the use and benefit of all the members (flat owners) of that society.

Owning or occupying of terrace of a society building is not permitted by law and if any body does that it is totally illegal. The law and BMC rules are amply unambiguous and clear in this regard and there is no provision at all under which terrace of a society building can be sold or bought. There has been a landmark judgment delivered by Hon’ble Mumbai High Court in the year 1999 in this regard while adjudicating on writ petition No. 4577 of 1985, in the matter of Smt. Ramagauri Keshavlal Virani V/s Om Walkeshwar Triveni Co-op housing society Ltd & others. Advocate Vinod Sampat an expert in Co-operative Housing Society matters is also of the same opinion and says that no person can own, sell or buy terrace of a co-operative Housing Society building.

Hence any one who indulges in such unfair and illegal practice does so at his own peril because it has got no legal sanction and is always subject to litigation and a person doing so will be on the wrong side of law.

Income tax benefit of a housing loan: Section 24

 

What is a home loan?

A home loan or the mortgage is nothing but the funding for a new home by any bank or a financial institution. The banks disburse the loan to the home owner/loan seeker with few criteria.

Basically a home loan is divided into two parts; The principle payment and the interest.
All the banks disburse full amount of the loan through cheques in the name of the builder or the concerned person. However, the amount given by the banks will be paid by the loan seeker every month by ways of EMI (Equated Monthly Installments).

The principal amount which is covered under the Section 80C and has a limit of Rs. 1 lakh will be available if the person is living in a home which is taken on loan. However, the loan seeker cannot use this exemption if the home is under construction or if he/she is not staying in the home. The only exemption which a loan seeker can avail is if he/she is working in a different city and can claim the exemption on the principal amount of the home loan under Section 80C.

 

The principal repayment towards the home loan reduces the income tax:

As mentioned earlier the income tax has Section 80 under which is mentioned the home loan principal repayment deduction. This states that the loan seeker will invest in any of the avenues prescribed in the section if he/she is eligible for the deduction of a maximum amount of Rs. 100000. This also includes investments like the ELSS, PF, LIC and others along with the principal repayment of the home loan.

Section 24 of Income Tax Act and Its deduction explained:

The Section 24 of Income Tax Act covers the amount of interest payable on such capital wherein the property has been acquired, constructed, repaired or renewed with borrowed capital. The amount of interest which is paid yearly should be calculated separately and should be claimed as the deduction each year. However, the penal interest on housing loan will not be allowed as deduction. Apparently, if the purchase price of the property is paid in installments with the interest, the interest portion of the installment will not be allowed as deduction under the Section 24. In case if there is a fresh loan raised in order to repay the original loan and the new loan has been used only for the purpose of repaying the original loan, then the interest paid on the fresh loans will be allowed as deductions.

 

Tax benefit on the interest on home loan: Section 24:

There are various ways in which the interest on the home loan is treated and the Section 24 contains the tax aspects of the interest on the home loan repayment. However, the maximum limit under the section as mentioned earlier is Rs. 1, 50,000 and one needn’t stay in the home in order to claim the benefit. The amount of interest which is paid is apparently deducted from the taxable income and hence reduces the tax liability. Also, there is no limit on the number of home one can claim. The only limit will be of Rs. 1, 50,000 on the entire amount.

What are the factors affecting taxation in joint ownership?

It’s a very common practice that when a person purchases immovable property the name of his / her spouse is added as co-owner, though the consideration is paid by either of the spouse solely through her/his own resources. In such cases the property becomes joint property and ownership thereof becomes joint ownership with both the owners enjoying equal and similar rights. The sole purpose of adding the name of spouse as co-owner is smooth transition of the property to the surviving spouse after death of the other partner.
However joint ownership does not mean or stand for property in the joint names of spouse only. It may be in the joint names of family members, friends, business partners or rank outsiders, but in most of such cases the consideration is paid by all the joint owners and generally the ownership is in the ratio of respective contribution towards the consideration money.

Taxation in joint ownership

Sometimes this simple and innocuous practice, especially where the property is jointly owned by spouse, causes litigation between taxation authorities and the assessee in respect of capital gains. Section 54 of Income Tax Act, 1961 and it’s various sub sections (54EC; 54F) provide for exemption from payment of long term capital gains tax if the property sold has been held for more than 3 years and the sale proceeds are utilized for acquisition / construction of new residential unit within 2/3 years of sale of the old property. Section 54F of the act states that the new house should be purchased in the name of the assessee. This stipulation is the bone of contention and tax authorities allow exemption of only 50% of the capital gains tax where the property is purchased in the joint names of the assessee and his/her spouse.

Legal interpretation-CIT Vs. Ravinder Kumar Arora

Hon’ble Delhi High Court in the matter of Commissioner of Income Tax (CIT) Vs. Ravinder Kumar Arora has ruled that though the property was purchased in the joint names of the assessee and his wife but the entire consideration including stamp duty and registration fee was paid by the assessee from the sale proceeds of the property owned by him. Inclusion of wife’s name as co-owner is intended to avoid litigation after death of the assessee.

The court further observed that when we are advocating for empowerment of women, acceptance of tax authority’s plea to disallow 50% exemption because the property is purchased in the joint names of the assessee and his wife, would be derogatory step. The Hon’ble court dismissed the appeal of the tax authority.

Checklist for buying your dream home

 

Lately with sky rocketing prices of land in India, plotted units have become luxury and most people are encouraged to purchase builder’s built floor or flats. In today’s consumer market flats are sold by SMS marketing and inbox are filled with property promotional messages. An aware buyer can make most out of this full of choices market. Though your dream house may have a much bigger wish list, these are few ‘should not compromise basics’ from the eye of a sustainable development enthusiast while one negotiates for more important equations like available finances/ date of possession versus maximum built up area or resale value etc. Here is the list:

Location: A builder may try selling you flat in jungle saying that sooner there will be a train/bus station for your rescue, only if you survive till then. Please consider the fact that man being social animal needs a connection with others and you may not always depend on privately owned vehicles. Consider proximity to public transport and day to day amenities.

Parking space: There should be adequate parking available for the residents and for the visitors, at what cost you get it, is secondary though. No column should come in between your dream of parking sedan.

 

Open spaces in the complex: humans have a strong relationship with the environment around. It is important to have greenery and park to walk your kids and dogs. If the property you are buying is planned to be constructed in phases, please monitor the future construction proposal for park not converting into parking later.

Waste disposal / Sewage treatment plant: Think where and how your building’s waste is disposed. Why?? It may be piled in front of your balcony, your street and places related to you, harming your environment. For example, in Pimpri Chinchwad area of Pune, a housing society was planned to have Sewage treatment plant, but the plan was out with builder moving out. Solid waste management became a huge problem for the residents later in the society. Better be cautious than being surrounded by our own waste. And if your waste can be put to some good use after recycling / treating etc.. Why should it not?

Power backup for service area/ preferably renewable energy based: If one wishfully buys a flat on sixth floor and is ready to do without elevator for good health, this may be ignored. Otherwise it is must to have all the lift cores functioning on power backup. Why renewable energy is being stressed on?? One it helps building decrease its environmental impact and other, diesel power is much more expensive in comparison and is eventually to be borne by the occupant. To everyone’s amazement, during the power failure earlier this year, commonwealth games village lifts were working when whole northern region was dark for 3 days since they had back up from solar PV.

Proper and uninterrupted supply of water / Rain water harvesting: Nothing can be worse than waiting for water when you have an important work to tackle with. Ensure regular water supply and check for municipality supply with neighbours. Trusting and respecting wisdom of our ancestors and scientists today, rain water harvesting is not just the mean of storing water for our current needs but also recharging the earth for future to come.

Well lit and ventilated rooms: All the rooms in the house receive their share of sunlight to see shining bright faces of your family. Air circulation in the house is equally valued for good health and prosperity in all sciences whether it be Indian Vastu Shastra or Chinese feng shui.

Observe orientation of your living areas: The room you consider well lit may prove to be an oven. Do check which wall receives maximum heat during harsh summers. Have they been protected with shade or covered with buffer spaces like toilets?? This may significantly impact air conditioning load of that room. Sincere suggestion is to survey the flat at different times of a day.

Electricity is metered adequately: Electricity meters are provided and you are not paying for the neighbour’s bill. A well designed space as mentioned in above stated two points will help you reduce the electricity bills in any case. Be more careful if you are opting for topmost floor. Cost and technique of the finishing on the roof will be inversely proportional to electricity bill you pay in summers.
Electrical Appliances if provided by the builder: Check for the appliances to be BEE star labelled. More stars, better efficiency and lesser operational cost.

No VOCs are used in interiors: paints and polishes used in the house should be free of VOCs as their presence may negatively impact health of occupants specially kids.

Operation and maintenance: Last but not the least, nothing works as planned if not maintained. Ask who will maintain the services and for how long?

New Project : Palm Crest, Near AIIMS, Bhopal

Belief Buidcon launches their new project, Palm Crest, Bhopal. This 36 3BHK luxurious flat project, is ideally located near AIIMS with all basic amenities in walking distance (Just see the location map below to ascertain this fact). Some new amenities to include smart card based access control systems, anti termite treatment with 10 yrs guarantee and many more have been catered in the project.

A very strong candidate for becoming either an investment avenue or for self residential purpose. Pre launch price starts from 33.90 lacs and super built up area varies from 1257 sq ft to 1363 sq ft.

 

Which home loan repayment option suits you the best?

In competitive market lenders of Home Loans innovate variety of schemes, including repayment schemes, to suit different types of prospective borrowers to attract greater number of such borrowers and fence sitters. Some of such innovative repayment schemes are given below.


Step-up Option:- This suits the “younger generation and new to employment” most. The EMI is lower in the initial stages and increases at predetermined intervals. It substantially increases the loan amount eligibility, and lower EMI matches initial repaying capacity. In assumption of steady growth in the earning of the borrower, the EMI also increases at prefixed intervals.

Step Down Option:- It is reverse of the above and suits the borrowers who are likely to retire in near future. The EMI is higher initially and is reduced at prefixed intervals, when the borrower would have retired, thus reducing post retirement outgo considerably so that he does not feel the pinch of higher EMI.

Telescopic Repayment:- It suits the younger generation having just started their careers when the loan amount to which they are eligible is less. Under this scheme they can avail loan of higher amount by increasing the tenure of up to 30 (Thirty) years. The EMI is less and the borrower has the option to pre-pay the loan when surplus fund is available.

Tranche Based Option:- Buyers of under construction property can opt for it. Generally when there is partial disbursement of loan amount, a pre-EMI interest is charged till the entire loan amount is disbursed and regular EMI starts. Under this scheme the borrower has the option to pay EMI separately for each tranche of loan disbursed and the total loan repayment period is reduced.

Pre-EMI:- To some extent it is reverse of the above but for under construction property only. The loan amount is disbursed in parts as the construction progresses and the borrower is charged simple interest called pre-EMI. It does not include the principal component. After the full loan amount is disbursed, payment of regular EMI commences.

Accelerated Repayment:- It has the flexibility of increase in EMI amount which is otherwise fixed. It suits the borrower whenever there is an increment in salary. The borrower can also make periodic payment of additional amount, over and above the regular EMI, when surplus fund is available. In this way the repayment tenure and interest outgo can be reduced.

Documents you need while purchasing a property

Documentation is an essential part of a property acquisition process. However, it may well turn out to be a complicated one. Different states in India have different requirements. There are many laws that govern the purchase of properties. There are various types of properties that you would want to buy and you’ll require certain documents while buying them. Let us have an overview of the most important legal documents to be verified in case of various properties -

(I) Purchase of freehold residential plot/house:

The main documents to be verified in such a case are -

# Copy of the sale deed through which the seller got his title to the property
# Copies of all earlier sale deeds to verify the chain of past owners of the property
# Registration details of the sale deed
# Agreement to sell the property
# Receipts of payments made by the purchaser to the seller
# Copy of the sale deed for registration purposes

(II) Purchase of property from original allottee of a government authority:

In case you purchase property from original allottee of a government development authority, i.e. DDA or MHADA, the documents you need are -

* Allocation letter
* Allotment letter
* Possession letter
* Receipts of payments made to authority

(III) Purchase of property from power of attorney (POA) holder of original allottee of a government development authority:

Apart from the documents mentioned above, the main documents you’ll need to verify here are -

# Permission to mortgage
# Authorisation letter signed by the seller
# Receipts of payments made by purchaser to seller
# Verification of signature of seller from his bank
# General power of attorney
# Special power of attorney
# Will Agreement to sell the property

(IV) Purchase of flat in a group housing society from an original member of the Society:

With the rapidly growing urbanization, there has been a surge in the number of flat buyers in India. The main documents to be verified while buying a flat from an original member of the apartment Society are -

* Share certificate issued by the society
* Lease deed of society
* Registration details of the society
* Bye-laws of the society
* No objection certificate from the society
* Approved building plan
* Title of builder
* Undertaking from society
* Allocation letter, Allotment letter and Possession letter
* Receipts of payments made to authority
* Permission to mortgage
* Authorization letter signed from seller
* Receipts of payments made by purchaser to seller
* Verification of signature of seller from his bank

(V) Purchase of flat in a group housing society from a power of attorney (POA) holder:

Apart from the ones required while buying a flat from an original member of the Society, the main documents needed here are -

# General power of attorney
# Special power of attorney
# Will Agreement to sell the property

Real Estate (Regulation and Development) Bill, 2013

Are you a real estate investor or buyer ? Then this blog of ours is a must read to understand what is expected from builders and developers, and to be fully aware of  your rights.

Be a rightly informed and updated buyer...

The Real Estate (Regulation and Development) Bill, 2013  provides for a uniform regulatory environment, to protect consumer interests, help speedy adjudication of disputes and ensure orderly growth of the real estate sector and has been much awaited by all aspiring home buyers.

The Real Estate (Regulation and Development) Bill, 2013 is a pioneering initiative to protect the interest of consumers, to promote fair play in real estate transactions and to ensure timely execution of projects.

The Bill has been prepared by the Government after extensive consultations with States, experts and stakeholders. The Bill has been supported by the States along with Ministry of Consumer Affairs, the Competition Commission and Tariff Commission among others.

The Bill is being proposed under Entries 6, 7 and 46 of the Concurrent List of the Constitution of India, which deals with Transfer of Property, Registration of Deeds and Documents, and Contracts. 

It contains elaborate provisions to bring in the much needed transparency in real estate dealings through provisions for registration of real estate projects and real estate agents with the Real Estate Regulatory Authority; functions and duties of promoters and agents; rights and duties of allottees etc.,  The Bill once enacted will lead to establishment of Real Estate Regulatory Authority and Real Estate Appellate Tribunal  in every State for registration of all real estate projects and for speedier dispute resolution.  Stringent penalties have been sought to be imposed on habitual offenders. This it is believed will act as a deterrent for those few erring builders who bring bad name to the developer community at large.

Currently, the real estate and housing sector is largely unregulated and opaque, with consumers often unable to procure complete information, or enforce accountability against builders and developers in the absence of effective regulation. The Bill is expected to ensure greater accountability towards consumers, and to significantly reduce frauds and delays. The Bill aims at restoring confidence of the general public in the real estate sector; by instituting transparency and accountability in real estate and housing transactions which in turn will enable the sector to access capital and financial markets essential for its long term growth.

The Bill is also expected to promote regulated and orderly growth through efficiency, professionalism and standardization. It seeks to ensure consumer protection, without adding another stage in the procedure for sanctions.

Benefits and Advantages of Real Estate Bill, 2013

·          The Bill will bring about standardization in the sector leading to healthy and orderly growth of the industry throughintroduction of definitions such as ‘apartment’, ‘common areas’, ‘carpet area’, ‘advertisement’, ‘real estate project’, ‘prospectus’ etc. Introduction of the concept of using only ‘carpet area’ for sale which has till now been ambiguously sold as super area, super built up area etc., will curb unfair trade practices.

·     The Bill like other sectors such as telecom, electricity, banking, securities, insurance etc. provides for specialized regulation and enforcement which includes both curative and preventive measures, with powers to enforce specific performance, not available under the consumer laws. The Authority has powers to give directions for specific performance powers to impose penalty for non-registration of projects including imprisonment for continuous violation upto 3 yrs and impose penalty in case of other contraventions.

·    The Bill proposes to register real estate agents which have hitherto been un-regulated, with clear responsibilities and functions, thereby leading to money trail and curbing money laundering.

·    The Bill aims to ensure consumer protection, by making it mandatory for promoters to register all projects, prior to sale; and only after having received all approvals from development/municipal authorities thereby protecting buyer investments.

·     The Bill will promote transparency and fair and ethical business practices, relating to transactions, through disclosure of project details and contractual obligations vis-à-vis the project and the buyer,  promoting informed choice for the buyers. This will substantially reduce the power asymmetry prevalent in real estate transactions.

·    The Bill seeks to establish a regulatory oversight mechanism, through Real Estate Authority(s) and Appellate Tribunal in the States, to enforce accountability norms for the promoter buyer and the real estate agents.

·    The Bill will infuse professionalism and promote planned development of the real estate sector through the promotional role of the Regulatory Authority.

·    The Bill will ensure timely completion of projects, and prevent fund diversion.

·    The Bill provides for a speedy and specialized adjudication mechanism to settle disputes between the promoter, buyer and real estate agents, thereby de-clogging the civil courts and consumer forums, from disputes in the real estate sector.

·    The Bill will catalyze domestic and foreign investment into the sector, thereby contributing to enhanced activity, and increase in GDP growth.

The salient features of the draft Bill are as under:

§                  Applicability of the Bill:

The proposed Bill applies to residential real estate i.e. housing and any other independent use ancillary to housing. However it shall not apply where the area of land proposed to be developed does not exceed 1000 square meters or the number of apartments proposed to be developed does not exceed 12, inclusive of all phases, or an area or number of apartments as notified by the Central Government on recommendations from the appropriate Government, which may be different for different States or Union territories but not more than 1000 square meters or 12 apartments.

§                  Important Definitions:

The Bill will bring about standardization in the sector leading to healthy and orderly growth of the industry through introduction of definitions such as ‘apartment’, ‘common areas’, ‘carpet area’, ‘advertisement’, ‘real estate project’, ‘prospectus’ etc. Introduction of the concept of using only ‘carpet area’ for sale, which has till now been ambiguously sold as super area, super built up area etc., will curb unfair trade practices.

§                  Establishment of Real Estate Regulatory Authority:

Establishment of one or more ‘Real Estate Regulatory Authority’ in each State/UT, or one Authority for two or more States/UT, by the Appropriate Government, with specified functions, powers, and responsibilities to exercise oversight of real estate transactions, to appoint adjudicating officers to settle disputes between parties, and to impose penalty and interest;

§                  Registration of Real Estate Projects and Registration of Real Estate Agents:

Mandatory registration of real estate projects and real estate agents who intend to sell any immovable property, with the Real Estate Regulatory Authority on real time basis without adding another layer of approvals.

§                  Mandatory Public Disclosure of all project details:

Mandatory public disclosure norms for all registered projects, including details of the promoters, project, layout plan, plan of development works, land status, carpet area and number of the apartments booked, status of the statutory approvals and disclosure ofproforma agreements, names and addresses of the real estate agents, contractors, architect, structural engineer etc.;

§                  Functions and Duties of Promoter:

Duty of promoters towards disclosure of all relevant information and adherence to approved plans and project specifications, obligations regarding veracity of the advertisement for sale or prospectus, responsibility to rectify structural defects, and to refund moneys in cases of default;

§    Compulsory deposit of seventy percent or such lesser percent as notified by the Appropriate Government, to cover the construction cost of the project, of funds received by the Promoter, in a separate bank account:

§                  Functions of Real Estate Agents:

Real estate agents not to facilitate the sale of immovable property which are not registered with the Authority required under the provisions of the Act, obligation to keep, maintain and preserve books of accounts, records and documents, obligation to not involve in any unfair trade practices, obligation to facilitate the possession of documents to allottees as entitled at the time of booking, and to comply with such other functions as specified by Rules made in that regard;

§                  Rights and Duties of Allottees:

Right to obtain information relating to the property booked, to know stage-wise time schedule of project completion, claim possession of the apartment or plot or building as per promoter declaration, refund with interest in case of default by the promoter, and after possession entitled to necessary documents and plans. Duty of allottees to make necessary payments and carry out other responsibilities as per the agreement;

§                  Promotional role of Real Estate Regulatory Authority:

The Authority to act as the nodal agency to co-ordinate efforts regarding development of the real estate sector and render necessary advice to the appropriate Government to ensure the growth and promotion of a transparent, efficient and competitive real estate sector;

§                  Fast Track Dispute Settlement Mechanism:

Establishment of fast track dispute resolution mechanisms for settlement of disputes, through adjudicating officers (an officer not below the rank of Joint Secretary to the State Government) to be appointed by the Authority, and establishment of an Appellate Tribunal to hear appeals from the orders of the Authority and the adjudicating officer;

§                  Establishment of Central Advisory Council:

Establishment of Central Advisory Council to advise the Central Government on matters concerning implementation of the Act, with a mandate to make recommendations on major questions of policy, protection of consumer interest and to foster growth and development of the real estate sector. The Council to have among others, five representatives of State Governments, to be selected by rotation;

§                  Establishment of Real Estate Appellate Tribunal:

Establishment of Real Estate Appellate Tribunal, by the State Government to hear appeals from the orders or decisions or directions of the Authority and the adjudicating officer.  The Appellate Tribunal is to be headed by a sitting or retired Judge of the High Court with one judicial and one administrative/technical member;

§                  Punitive Provisions:

Punitive provisions for non registration of a real estate housing project  -  Penalty which may extend up to 10% of the estimated cost of the real estate project as determined by the Authority .

For continued violation or non-compliance of order for registration  - punishment with imprisonment for a term which may extend up to three years or with fine which may extend to a further 10% of the estimated cost of the real estate project, or with both as determined by the Authority .

For knowingly providing false information or willful contravention at the time of applying for registration  and for other contraventions under the law – A penalty which may extend up to 5% of the estimated cost of the real estate project as determined by the Authority.

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