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Frequently Asked Questions Regarding Property Rights

 

Part A- Family Property

How do I make a Will?

First, your Will must include a declaration that the you, the testator, are of sound mind and are making the Will free of any coercion. Then, it must specify the assets, naming the people who shall own or possess those assets after you pass away, and conclude with your signature in a sealed envelope. You will require witnesses and their signature as well.

You may also hire an executor for your Will, as it will have to undergo a process of probate. In this process, a copy of the Will has to be submitted in court and may take up to a year to be approved. This process gives you a decree declaring that the Will is genuine and correct. This is not a mandatory process and is optional. Such a decree is only given to the Executor appointed by the Will.

Registration is a process separate from the probate process. While it is optional, it has its own benefits. Once a Will is registered, it is placed in the custody of the Registrar and cannot be tampered with. A registered version of a Will is given precedence over unregistered versions. After signing some court affidavits, you will also have to pay tax to the state government for getting your Will registered.

My parent died without a Will. What do I do?

This situation is referred to as intestacy, and is governed by both statute and personal law. Hindus, Christians and Muslims are governed by different personal laws, which may or may not be codified in legislations like the Hindu Succession Act 1956, the Indian Succession Act 1925, etc. For example, the Indian Succession Act, applicable to Christians, prescribes that for those governed by it, the husband or wife of the deceased will get 1/3rd of the property, and the remaining 2/3rd will be divided among their children. A particular community may also be governed by their own custom in the devolution of property on intestacy. You can claim your respective share by issuing a notice if anyone tries to take your rightful share under the law.

I have been named as administrator of my parent’s will. How can I execute it?

You will mostly be doing the job that a hired executor does, if you choose to perform the same yourself. You will have to submit an application for probate before a court of law, with relevant documents like a copy of the Will and the list of properties and other assets, and affidavits. Then, you will have to ensure the distribution of these assets according to the terms of the Will to the various recipients. Finally, you will have to pay off the debts of the deceased.

How can I claim my inheritance?

Before making any claim to the property, all debts pertaining to the said property need to be cleared. If there is ambiguity in the Will, such as there being a mention of excess property etc., legal advice must be sought immediately.

The first legal step should be to get hold of the testator’s Will, which can be done by applying with the deceased’s death certificate to the District Registrar. Once the legal ownership of an heir for a property is confirmed, it is advised to apply for mutation (change in the title) to the local municipal authority, which makes the ownership claims stronger. A no-objection certificate needs to be acquired in case there are multiple heirs.

A Will may also be challenged, and so the words of the Will are not always absolute in law.

How can I get my family property partitioned?

A partition deed for a property is executed to divide the property among different people – usually among the family members. To do this, a legal notice may be issued to the members of your family. If accepted, then a partition deed would be created and you will not have to go to court.

Part B – Selling and Buying Property

What should I do if I want to sell my land or buy someone’s land?

If you are the seller, you will usually first enter into a written Agreement for Sale with the person buying your land. This document fixes a future date on which the actual sale will take place. You could ask the buyer to deposit some money with you right now (known as “Earnest Money”) to ensure that the buyer is seriously interested in your property.

What has to be done before the future date set?

The buyer will then ask you for the documents relating to the property to confirm that you really own the property and are in a position to sell it. This process is known as ‘due diligence’. For example, the sale may require some approvals from the local government or from your co-operative society. You should get those approvals to satisfy the buyer. To ensure that you are truly the owner of the property, the buyer may put out a public notice in newspapers inviting anyone claiming that they too have some ownership or rights over the land. If someone responds, the buyer could ask you to sort out the issue with this new person before proceeding with the sale. The buyer will also get a certificate (known as an “Encumbrance Certificate”) from the office of the sub-registry, confirming that nobody else has any interests over the land.

What happens at the fixed future date once the buyer is satisfied with the due diligence?

You will sign a written sale deed with the buyer. This is known as execution of the sale. Generally, upon execution, the buyer will pay the rest of the money for the property to you. In exchange, you will transfer all documents relating to the title and ownership of the land to the buyer, and deliver the possession of the property to the buyer. In other words, you will allow the buyer to physically live in or use the property as he or she pleases.

What happens after execution of the sale?

You will have to get the sale agreement registered at your local Sub-Registrar’s office. In Bangalore Urban district, you can get in touch with the Office of the Inspector General of Registration. While the law allows you to register the sale within 4 months of execution, it is advised to get it registered on the same day itself. Without getting it registered, the entire sale could become meaningless.

Registration can be done even after four months by paying a penalty equal to maximum ten times the registration fees, but only if the District Registrar gives permission. Sub- Registrar can accept the document within eight months. But it cannot be submitted for registration after that. This is explained in Section 52 of the Karnataka Registration Rules, 1965.

What are the timings during which registration can be done?

Registration can be done at all times when the office of the Registrars and Sub-registrars is open. Sub-Registrars can stop accepting the documents one hour before closing time if he has sufficient work with the documents already submitted. In cases of emergency, documents can be submitted on the payment of a fee one hour before sunrise, one hour after sunset and on holidays.

Apart from documents, what else is required?

You have to pay a registration fee. Further, two passport-sized photographs of the person submitting the document are required. You will also have to attach a stamp to the documents. The value of the stamp depends on the value of your sale and you may apply to the Deputy Commissioner under section 31 of the Indian Stamp Act, 1899 or the Karnataka Stamp Act, 1957, to figure out which stamp to attach.

You could visit the Karnataka ‘Kaveri’ portal, with website address ‘https://kaverionline.karnataka.gov.in/Layout/Layout’ to ascertain stamp value and registration fee. This website also helps you register your document online.

What language should the document be in?

The document should be in Kannada or English. In such a case, you are required to sign and submit a translated copy along with the original document. The translated copy should be in Kannada or English.

I have paid for a house/flat but construction has not been completed, or delivery has not been given. What can I do?

There are two legal routes –

The first is through Consumer Protection law for residential purposes. First, a notice must be sent to the developer seeking possession and/or compensation. If they refuse, then a complaint along with the standard fee will have to be filed at the district, state or national forum depending on the monetary value of the claim. A lawyer is not required for you to file such a complaint.

Another route is through the RERA (Real Estate Regulation and Development Act) provisions. The buyer can file a complaint with the state RERA according to the rules in that state. The agreement between the buyer and the developer will state a date of possession, which will be the main marker for the courts to look at. In filing a complaint to the RERA, a lawyer’s help is usually required. The documents needed are allotment letter, cheque details, receipts of payment made, builder-buyer agreement. Here, you can seek refund of payment made or interest till possession is given.

What is OC (Occupancy Certificate)?

The local government or authority will issue such a certificate to the builders on completion of construction, signifying that all applicable laws have been complied with and is fit to be occupied. It is the builder’s responsibility to obtain this certificate. A resident cannot move into the property without this document. A possession letter is then issued by the developer to the buyer with the date of possession.

Part C – Tenancy

What are the important clauses in a rent agreement?

Registration

It is not compulsory to register your rent agreement. As per law, only an agreement with a term of 1 year or more needs to be registered. So, to save on registration costs, this is avoided by making the term of the agreement eleven months, thus doing away with the need to register the agreement. However, though not compulsory, most rent agreements are notarised.

Security Deposit.

There is no central or state law which addresses the provision of security deposits, making it imperative for both prospective tenants and landlords to take note of this provision. Security deposit is a tool for landlords to make sure that their tenants carry out their obligations under the contract. They do this by deducting unpaid rent or other charges not paid by the tenant from this security deposit.

However, the remaining amount after deduction must be returned to the tenant after the term of the agreement ends. Similarly, if there are no such deductions, then the entire security deposit amount must be returned at the end of the rent period.

Since there is no law regulating these deposits, the amount of security deposit is determined by the market rate in that particular locality.

Tenants should ensure that the agreement mentions the total security deposit paid by the tenant and the specifics for the return of security deposit. The agreement should also mention the consequences of the landlord’s failure to return the deposit – like compensation, interest or entitlement to occupy the property after the conclusion of the term of the agreement. Further, tenants should also ensure that a receipt for such payment is given by the landlord. Specific claims for deductions from the security deposit should be set out in the agreement – electricity and other bills, painting before leaving the house, etc., and should not include ordinary wear and tear.

If the landlord does not return the security deposit, subject to reasonable deductions, then the tenant can file a suit for recovery of money under Order 37 of the CPC.

Payment.

Mention the date before which the rent of each month has to be paid, and also provide for a grace period. Make sure that the penalties for non-payment of rent are clearly mentioned.

Repair and Maintenance.

Standard and natural wear and tear due to use of an apartment is usually not charged by the owner from the tenant. However, the tenant is expected to give back the apartment in its original condition to the landlord. Disputes arise as to whether the tenant leaves the property in the same condition in which they got it. Thus, the tenant should make a list of the conditions of all fixtures before taking possession.

The agreement should specify whether the maintenance amount is included within monthly rent or if it is excluded from the rent amount. Further, other charges which involve the long-term condition of the property should be borne by the owner/landlord.

The landlord usually pays taxes such as the property tax. Further, the landlord is not entitled to cut off essential services to the property, in case of which, the tenant can make an application to the Controller (as per Karnataka Rent Act 1999). Under the Rent Act, there are also various limitations on how and when a landlord may evict the tenant. Usually, it is mandatory for landlords to give advanced notice before evicting a tenant.

How do I rent commercial property?

A commercial lease agreement must mention the following basic information in addition to other clauses –

Start and termination dates.

Property address.

The rental amount and complete details of all deposits.

The interval of payment.

The provision of rent renewal.

Names of all the parties involved, including their signatures.

A notice period for termination of the lease agreement.

If the property is rented to any foreign establishment or foreigner, this requires a registration of the same at the police commissioner’s office. Failure to comply with this is a punishable offence.

Paying tax from commercial properties is mandatory. The rent is considered as income and the deposit amount is also taxable. If the rent is paid in advance, the gross amount is also taxable.

How do I register a rent agreement?

Registration of rental agreement is required if the rental period is above 11 months. The first step is to prepare a rental agreement and print it on stamp paper. The value of the stamp paper in the state of Karnataka is

1 percent of annual rent for tenancy duration up to 10 years

2 percent of annual rent for tenancy duration above 10 years

As Karnataka is one of the states that has implemented e-stamping, you can easily buy it from the High Court campus.

The registration will require following documents to be submitted:

Ownership proof of the property. Example: Registry docket, municipal tax receipt.

Government ID proofs of both landlord and tenant. Example: Aadhar card, driving license, voter ID card and/or passport.

2 passport size photographs

To complete the registration process, you will require the tenant, landlord and two witnesses to sign on the agreement. In case the rent period is 11 months, the agreement can be notarised.

What do I do if my landlord/ licensor tries to evict me?

If the rent due to the landlord is being duly paid within the period of the agreement between you and the landlord/licensor, then the landlord/ licensor does not have the right to interfere with your right to possession. In such a case the tenant should go to the police station having jurisdiction over the area where the offence is committed. Report to officer-in-charge/ station house officer and tell the officer to register the complaint for Criminal Trespass under Section 441 IPC, Nuisance under Section 268 IPC and Mischief under Section 425 IPC. Mention the names of the witnesses, if there were any witnesses present. After filing the FIR, you should not forget to take the copy of the FIR for further procedures.

However, as per the Karnataka Rent Act 1999, the landlord may ask for possession by giving notice in specific cases such as conducting repairs and improvements of the property. Another remedy that is possible is filing a suit in civil court for damages.

This post was authored by Anmol, Mugdha and Aman and proofread by Darsan G, students of the National Law School of India University, Bangalore.

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