Adhavan Legal Associates is truly a one-stop destination for all property-related legal matters. We aim to be the first choice for clients seeking expert legal advice, backed by barristers with extensive experience in both common and civil law, with a special focus on property disputes and transactions.
Property Rights:
Initially, the Right to Property was included as one of the Fundamental Rights under Part III of the Indian Constitution. However, after the 44th Amendment Act of 1978, it was removed from the list of Fundamental Rights and is now recognized as a Legal Right under Article 300A in Part XII of the Constitution.
Changing the ownership of an asset:
An individual can transfer their assets or possessions to others through various modes such as sale, mortgage, or gift. At Adhavan Legal Associates, we provide in-depth legal guidance on property transfers and assist our clients with the judicial procedures to ensure a smooth and hassle-free transfer of ownership.
Some Indian Constitution Acts associated with transferring property:
The Transfer of Property Act 1882:
This Act governs the legal transfer of ownership of a property from one person to another, either to a single individual or to multiple parties, in a lawful manner. A person can transfer his or her asset to one or more individuals and may also specify whether the transfer will take effect immediately or at a future date.
Indian succession act 1925:
A Will is a legal declaration by which a person specifies who shall inherit and take ownership of his or her property after death.
How to transfer an asset to others:
Property or assets are classified into two categories: movable and immovable, excluding grass, growing crops, and standing timber. The process and legal norms for transfer vary depending on the type of property.
Types of Transferring Property:
Involuntary Transfer
Voluntary Transfer
Involuntary Transfer:
Deprivation of an individual’s property and its transfer to others can occur through court jurisdiction, even without the property owner’s consent.
Voluntary Transfer:
The ownership of a property can be transferred to any person based on the free will and consent of the asset owner.
It can be done in various methods such as:
Will
Family members are entitled to receive wealth or property through inheritance after the death of the testator, as per the provisions of the will or succession laws.
Sale
Under Section 54 of the Transfer of Property Act, ownership of immovable property can be transferred through a sale deed. Such a sale must be executed in writing as a legally binding document and duly registered to be valid.
Gift
If a family member wishes to transfer ownership of their property to another family member, it can be done through a gift deed. While a gift deed is not mandatory for gifting property, it is highly recommended to document the transfer. Both movable and immovable property can be transferred via a gift deed. For immovable property, it is essential to register the gift deed under Section 17 of the Registration Act, 1908; otherwise, the transfer will not be legally recognized.
Relinquishment:
Relinquishment of property can be carried out by the owner or a co-owner, where they voluntarily give up a part of their property or share to another person.
Mortgage
The interest in immovable property can be transferred through a mortgage deed under Section 58, granting the lender legal rights over the mortgaged property.
Exchange
An asset exchange occurs when two parties mutually agree to transfer ownership of property under Section 118. This can involve either movable or immovable property.
Property Dispute:
Property disputes are common and can arise among family members, legal heirs, co-owners, or due to errors in legal deeds. Disagreements may also occur between buyers and sellers over incorrect representations in the deed, often involving will deeds or gift deeds. At Adhavan Legal Associates, we provide comprehensive legal support in property matters. Our services include verification of legal documents, such as property papers, rental contracts, and lease agreements. We also assist with construction disputes, issues during property transfers, rental or lease matters, illegal possession, will registration, power of attorney, name changes, ownership transfers, and other property-related concerns
Widely the property disputes happen in the category given below:
About the will of inherited propertyBetween builders and buyers in transferring of property
Non-provision of occupancy certificate- unless obtaining the certificate from the builder, the buyer cannot be able to move to the new property.
Among the owner and occupants owing to the exploitation of the rented or leased possession.
Verifying the Asset Documents:
Before purchasing a property, applying for a loan, or taking a mortgage, it is always wise to thoroughly verify all property-related documents. Carefully examining these documents is the best way to avoid potential fraud or legal complications in the future, ensuring your hard-earned money is safely invested. While some property documents may be easy to understand, others can be complex and require expert guidance. At Adhavan Legal Associates, we assist you in reviewing all property documents thoroughly, clarify any legal doubts, and guide you on the safest way to proceed with your investment
What are the documents that need to be verified:
Title of the propertyConstruction Plan
Building plan approval
Mother deed
Encumbrance Certificate (EC)
Occupancy certificate
Sale deed
Property tax receipt
Water tax receipt
Electricity Board receipt
Pending in payment of taxes
Seller identity
Land type conversion certificate, in case of changing an agricultural land to a non-agricultural land such as commercial or residential.
Landlord and Tenant Dispute:
It is always advisable to have a lease or rental agreement that clearly specifies the occupancy period, terms, and conditions agreed upon by both the property owner and the tenant. Tenants should carefully review the agreement to understand their rights and responsibilities, while property owners should ensure that all clauses are clear to avoid potential disputes.
Both parties must retain a legally executed copy of the lease or rental agreement on stamp paper. The agreement should include the full legal names and addresses of both the tenant and the owner. Additionally, if the tenancy period exceeds 11 months, it is mandatory to register the agreement legally to ensure full legal validity
The agreement should have:
Names of the asset owners and tenant as per their identity proof.
Rental payment details
Duration of the tenement or lease
Advance payments details (rental house security deposit amount)
Pets are allowed or not on the premises.
Agreement renewal
Termination
The State Government of Tamil Nadu enacted the Tamil Nadu Regulation of Rights and Responsibilities of Landlords and Tenants Act, 2017 (Tenancy Act 2017), which replaced the Madras Buildings (Lease and Rent Control) Act, 1960.
Under this Act, rent courts have the authority to resolve disputes that may arise between tenants and landlords. Both landlords and tenants must comply with the terms specified in their rental or lease agreement. The agreement should be clear, transparent, and free from any hidden clauses or conditions.
Rental Agreement against Lease Agreement:
Duration:The rental agreement is usually for a short-term period, often on a month-to-month basis, whereas a lease agreement is typically for a longer duration, spanning several years.
Rental Charges:The property owner can revise the rent in a rental agreement by providing prior notice of at least one month. In contrast, for a lease agreement, the owner cannot alter the lease amount until the lease term, as specified in the agreement, has expired.
Modification in Agreement:The landlord can make changes to a rental agreement, such as modifying rules or protocols, provided they give proper prior notice of at least one month and reach a mutual understanding with the tenant. In the case of a lease agreement, however, the landlord cannot make any changes to the terms, rules, or protocols until the lease period as specified in the agreement is completed.
Caution Deposit (Rental Home Security Deposit Amount):
Typically, the property owner collects a security deposit from the tenant, which is refundable when the tenant vacates the property. The owner may deduct from this deposit for any damages caused by the tenant, unpaid rent, or outstanding charges such as electricity bills or maintenance fees.
The owner cannot withhold the security deposit if the tenant has not caused any damage to the property and has cleared all pending service charges.
Exceeding the Tenancy period:
The tenant cannot overstay beyond the duration specified in the agreement. If they wish to continue residing on the premises after the tenancy period, a new agreement must be executed, clearly stating the extended duration along with the updated rules and rights, agreed upon by both parties.
Sometimes, a tenant may claim ownership rights over a property by occupying it for an extended period. To prevent such situations, the property owner should renew the tenancy or lease agreement annually if they wish to allow the tenant to continue staying in the property long-term.
Buyer and Builder Issues:
The primary reason for disputes between builders and buyers is the failure to deliver the property on the promised timeline.
In cases where there is a delay in the handover of the property to the buyer, and if the buyer has taken a loan to purchase it, they are forced to bear both the rental charges and the Equated Monthly Installments (EMIs) simultaneously. This situation can cause significant financial burden and mental stress for the buyer.
Problems also arise when there are defects in construction or when the property delivered does not meet the promised quality. The builder is solely responsible for the functionality of the property and is accountable for any structural defects or shortcomings.
The contract between the buyer and the builder must be drafted in accordance with Section 11 of the Real Estate (Regulation and Development) Act (RERA). Both parties should ensure that the agreement adheres to RERA’s terms and conditions, and the property must be registered under RERA.
Real Estate Lawyers:
Adhavan Legal Associates possesses extensive expertise in legal services related to real estate. We manage all aspects of real estate across various sectors, including commercial, entertainment, education, healthcare, information technology, industrial, and manufacturing. Our services cover legal matters concerning infrastructure and construction, including corporate, residential, hospital, roads, bridges, slum rehabilitation, and solar projects. We assist in the sale and lease of commercial, residential, and agricultural properties, property acquisition, compliance with building regulations, obtaining construction licenses, and thorough verification of property documents. Real estate plays a significant role in driving the economic growth of our country, and we ensure seamless legal support for every transaction.
The Real Estate (Regulation and Development) Act 2016The Real Estate Regulatory Authority (RERA) was established to enhance the real estate sector and regulate it effectively. It is designed to protect the interests of consumers and ensure complete transparency throughout the property transaction process.
Illegal and Forgery Property
It is always advisable to ensure that a property is safe to purchase and free from any fraudulent issues by having it verified by a legal adviser. The government has also implemented various laws and regulations to prevent property forgery and to make the process of buying and selling assets simple, transparent, and secure. However, despite taking all necessary precautions and maintaining transparency, there are instances where one may still fall victim to property fraud.
Some fraudulent issues of property are:
Title fraud were not mentioning the owner of the property.Document forgery, faking signature of the property’s owner.
Equity forgery
Land forgery, selling land which does not belong to them.
Home loan forgery against the property.
Illegal flipping, buying a property and selling it as soon as possible for a higher price in the market.
Fraudulent property issue comes under section 420. They will be punished with the fine amount and imprisonment for seven-years.
The property owner must always remain vigilant. If the owner is residing elsewhere, they should regularly check the premises to ensure it has not been illegally occupied. Such fraudulent occupation often occurs in the case of Non-Resident Indians (NRIs) or elderly property owners.
