An article about " Caveat Emptor - Buyer Beware "

Caveat Emptor - Buyer Beware

The transfer of property Act 1882 deals with the various kinds of transfer of immovable property, like sale, mortgage, lease, exchange etc. Section 55 of the acts refers to the rights and obligations of the seller and purchaser of immovable property.

The obligations of seller are:

I.  to disclose any material defect in the property of sellers and title to the buyer.

2. to produce the documents of title for the verifications of the buyer on his request.

3. to answer all relevant questions of the buyer

4. to execute proper conveyance deed on full payment of the consideration.

5. to take care of the property and the documents in the period between agreement to sell and handing over the possession of the property

6. to give possession of the property

7. to pay all taxes, charges, rents upto date and discharge any encumbrance on property.

The seller has some rights; they are:

I. to receive the rents and profits of the property till the ownership passes on to the purchaser.

2. where the ownership has passed on to the purchaser before payment of full consideration, the seller will have a charge on the property for the amount of purchase money and interest on such amounts.

The obligations of the buyer are:

1.  to inform the seller any fact which may increase the value.

2.  to pay the consideration amount to the seller as agreed.

Where the ownership has passed on to the purchaser, to bear the loss on account of destruction, inflery or decrease in the value of the property not caused by seller.

4.  to pay all taxes, charges, rents etc. where the ownership has passed.

5. The purchaser may retain the amount of any un-cleared encumbrance, out of consideration amount payable.

The purchaser is entitled to the following rights:

1. Where the ownership has passed on to the purchaser any benefit of any improvement increase in the value of the property, rents, profits.

2. A charge on the property as against seller and all persons claiming under him for the amounts paid by the purchaser with interest.

The above referred rights and obligations of both the seller and purchaser are binding on both. But the section 55 of transfer of property Act provides an exemption. If the parties to the deal have any contract contrary to the rights and obligations as envisaged in the act the contracted obligations and rights revail, to that extent. The obligations and rights have relevance only where there is a valid binding contract of sale between the parties.

Incase, the purchaser of property declines to accept the possession of the property, he has charge on the property with regard to earnest money paid and any costs awarded to him of a suit.

The rights of the purchaser is subject to certain limitations. These rights are applicable as long as the matter is in the stage of agreement and when the deal is finalized, conveyance deed is executed; the deal will come to an end. But the case is different where the conveyance is brought on account of fraud practised by the vendor.

It is also necessary that the purchaser shall avail himself of knowledge or means of knowledge open to him or his agents to verify the credentials of the vendor, his interest, title to the property. He has to exercise due care and diligence by exercising reasonable care and then only the purchaser can claim the protection of law for any mischief played on him.

An article about " Civic Amenities "

Civic Amenities

Civic amenities are those facilities required in localities like schools and colleges, market, post office, police station, parks and play grounds, dispensary, hospital, area offices of the Water Supply and Sewerage Board, Electricity Authority, Telephone Department, bus terminal, religious buildings, community hall, club, etc.

Civic amenity sites are reserved in the extensions formed by the Development Authority or enforced by the Authority in approved private layouts. Civic amenities are provided by the civic authorities, Government departments, registered charitable trusts etc.

In the new layouts the Development Authority reserves civic amenity sites (C.A. sites) for various facilities. After formation of roads, utilities services in an extension layout, civic amenity sites not required by the Authority are notified for allotment to Government departments, agencies, and registered trusts and institutions.

Earlier when the demand was less, as and when applications were received, c.A. sites were allotted by the Authority. Later, when the demand for c.A. sites increased there was competition. Rules were here- fore framed and approved by Gov- ernment called" The Bangalore Development Authority (Allotment of Civic Amenity Sites) Rules, 1989.

Civic amenity Sites required in area depends on the activities in that area. For residential areas, C.A. sites required are; nursery schools, primary schools, secondary schools, hostels, market, parks and play grounds, post office, police sta- tion, bank, Office of the Water Supply and Sewerage Board K.P.T.C.L. and Telephone Department offices, club, library, dispensary and maternity home, petrol bunk, offices of profession- als, etc. The civic amenities are in- cluded as permissible uses in the Zoning Regulationsof C.D.P. and Building Bye -laws under the vari- ous land use zones.

The civic amenities required for a commercial zone are banks, transport offices, trading establishments, restaurants, post office, police station, and petrol bunk.

In an industrial zone civic amenities required in addition to those in commercial zone are industrial training institute, job training institute, E.S.I. dispensary, automobile service station, play grounds, parks, recreational club, etc.

For public use zone civic amenities required are post office, police station, restaurants, Auditorium, training center, play grounds, and clubs.

In Major Park and playground zone, the amenities required are restaurant, club, library, fruits and bev- erages shops, Hopcoms, books and magazines shops, and dispensary.

Standards for civic amenities:

The Urban Development Ministry in their Guide lines have indicated the following standards for civic amenities: The standards for polytechnic, college, and hospital are high and may have to be reduced. While planning the layout these standards are to be followed by B.D.A., housing societies, and agencies.

The Zoning Regulations of the C.D.P. of Bangalore prescribes 10% of the layout area for civic amenities and 15% for parks and playgrounds. These percentages are maintained in B.D.A. layouts, housing society layouts, layouts of Government quarters, and group housing projects. The civic amenity areas are taken over by B.D.A. by getting relinquishment deeds executed from the developers. The civic amenities in B.D.A. layouts and private layouts are allotted by B.D.A. according to the procedure laid down in the Bangalore Development Authority (Allotment of Civic Ame- nity Sites) Rules, 1989 for the purpose for which they are reserved.

Some times if a particular C.A. site is already available in the adjoining locality the purpose may be changed by the Authority after passing a resolution in the Board meeting. Allotment of civic amenity sites:

a)By B.D.A.:

Civic amenity sites are reserved; allotted by B.D.A. tothe Central and State Government departments or agencies established by these Governments. After making allotments to Government agencies, the remaining sites are notified in the news papers for allotment .The purpose for which stitutions, societies, or associations registered under the Karnataka Co-operative Societies Act, Karnataka Societies Registration Act or registered trusts created wholly for charitable, educational, or religious purposes. C.A. sites are allotted on lease basis for a period not less than thirty years.

The institutions seeking allotments have to register themselves by paying Registration Fee, which will be valid for subsequent allotments also unless the registration is withdrawn. Concession is given in the lease amount to an extent of 50% to the institutions established for the welfare of physically and mentally handicapped, to the educational institutions teaching only Kannada medium and Government agencies.

Lease agreements are executed and registered after which possession of the site will be handed over to the institution. The institution should put up the civic amenity building within three years. In deserving cases exten- sion of time will be granted. If the construction is not made within the permitted period, the allotment will be cancelled and the amount paid will be refunded after deducting 12 V2 %.

After expiry of the lease period, the C.A. site along with the buildings put up by non-governmental institutions will vest with the Authority.

While the above are the procedures for allotment of C.A. sites, what happens actually is mentioned here under.

There is no instance of B.D.A. resuming the site after the lease period. In one case of c.A. site in Wilson Garden B.D.A. was forced to extend the lease. When the institution is established in the C.A. site it is difficult to terminate the lease practically.

In one case of C.A. site In West of Chord Road the site al- lotted for the purpose of Eye Hospital has been misused. Alround this considerably big C.A. site commercial complex are built with large amount of income to the lessee. Even the remaining open area is being gi ven for marriage functions. Hardly there is any Eye Hospital activity. Even such C.A. sites are not resumed by B.D.A.

Misuse of C.A. sites is found in considerable number of cases. It is suggested that the Authority should insist on a quarterly by certificate the Executive Engineer concerned; that the C.A. site is not being mis- used .In case of misuse the C.A. site may be re- sumed. Only then it may be possible to achieve the pur- pose for which the C.A. sites are reserved and allotted.

C.A.sites in B.M.P. area:

While handing over layouts developed by B.D.A. / housing societies / institutions /private developers, no C.A. sites will be left unallotted by B.D.A. except the parks and play grounds. Even after the layouts are transferred to B.M.P., lease amounts of C.A. sites will have to be paid to B.D.A. Further misuse of C.A. sites will take place after transfer of layouts. In most of the cases misuse is for commercial purpose facing the road, with C.A. activity being conducted in the rear portion.

The C.A. sites / corporation lands are allotted by B.M.P. for in- stitutional purposes. These sites are either parts of dried tank beds or Government lands transferred to B.M.P. earlier. In one case B.M.P. allotted portion of big storm wa- ter drain facing Lalbagh Road to a private person to build a commercial complex by erecting R.C.C. columns in the drain. Such allotments are irregular and un- desirable. In the dried Miller Tank Bed area lands are allotted by B.M.P. to institutions Some of the allottees have misused the sites for commercial purposes An automobile show room with service station and several restaurants are existing in that site allotted by B.M.P. to an institution. Such misuse of public lands should be condemned and lands/ C.A. sites resumed.

K.H.B.:

K.H.B allots C.A. sites in their schemes to institutions. The lease is for 10 years. Two year's time is given for construction of buildings failing which the C.A site will be resumed.

Own lands;

Considerable number of civic amenities comes up in the lands owned by institutions or persons in the built up area of the city and in extensions of the City. The civic amenities, which come up in such, owned sites are kalyana mantaps, schools, dispensaries, banks, professionals offices, etc.

Rented lands:

Civic amenities also come up in buildings rented for the purpose. Such cases are also considerable. The civic amenities that come up in rented lands / buildings are schools, banks, post offices, police stations, etc. In this case the prob- lem is change of address when the owner of the property wants the same for self-occupation.

Gifted lands:

Philanthropic minded persons gift land /building to registered trusts /associations /their own family trusts for construction of schools, dispensary, hospital, religious build- ings, and kalyana man tap.

When CIVIC amenities are required:

When an extension /colony comes up and sites are allotted, buildings come up one by one in that area. The trends of construction of buildings depend on the availability of services like water supply, under ground drainage, and electricity. The first require- ment in the new extension is shops for day-to-day needs. Then comes the requirement for nursery school / primary school. When the area is substantially built up, post of- fice, bank, police station, secondary school, playground, etc. are necessary. Formation of park is in the last stage when the area is transferred to the municipal authorities. For other CIVIC amenities the residents depend on the adjoining established localities. Additional civic amenities come up in private buildings according to the requirement of the area.

Misuseof C.A. sites:

Residents protest to B.D.A. / B.M.P. when the civic amenity sites allotted are misused. Residents welfare associations are formed to get the grievances settled by these au- thorities. Forming such associations is good to get the facilities and im- provements from the civic authorities for proper living conditions. If the grievances are not considered by the authorities, the residents welfare associations file writ petitions in the courts to get relief. Such associa tions with sincere members are required in all localities.

An article about " CONFIRMATION DEED AND CANCELLATION DEED "

CONFIRMATION DEED AND CANCELLATION DEED

It is very common that many a times the main documents of sale, mortgage, lease are drafted by inexperienced, unqualified people, as result of which defects creep into the documents. This ecessitates the requirements of supplementary documents to remedy the mistakes. Deeds of confirmation, rectification and cancellation are some of the important supplemental deeds. We have already dealt with rectification deed. This write up deals with confirmation deed and cancellation deed.

There are two types of confirmation deeds, one of the types is, where a person confirms and assents to the document of conveyance executed by another person. This becomes necessary, when a person is not made aparty to the main document of conveyance either by oversight or by ignorance orby some other reasons. Another type is very important.

Here the party to a document has made some mistake in signing the main document or has failed to admit the execution before the sub-registrar within the prescribed time, and consequently the sub-registrar has refused to register the document as far as the said party is concerned or in some other respect. It is very common though the parties executes the documents, but fails to turn up at sub-registrars office to admit execution, and the registering authority, refuses to register the document. In order to remedy this defect, a deed of confirmation has to be executed from the concerned party, wherein he confirms the execution of principal deed and further adds that the principal deed is valid and binding on him. He also confirms that he has no right, interest, title to the property transferred which belongs tothe purchaser/transferee.

As a precautionary measure a copy of principal deed should be annexed to the deed of confirmation and such copy should also be signed by the party executing the confirmation deed. However, whether such a documents cures the defects of the main documents is debatable, but, such documents would act as promissory estoppel against the party. This would avoid execution of fresh documents, payment of tamp duty and registration charges. The word confirmation in strict parlance mean approbation or assent to the estate already created, by which confirming party further strengthens and gives legal validity to such estate so far at it is his powers.

The confirmation may be given in variety of ways (1) by acquiescence (2) by limitation, (3) by deeds. Confirmations of acquiescence and by limitations are the outcome of operation of law. The Indian registration recognizes confirmation deeds Sec. 17(1) provides any deed confirming any interest in immoveable property needs to be registered. The confirmation deed attracts stamp duty. If the main documents is registered or to be registered the corresponding confirmation deed also requires registration.

Deed of cancellation

Section 13 of specific relief Act 1963, deals with the cancellation deeds. There may be certain written documents which by their nature or by operation of law or by some other reasons are void, violable. Such documents if left as they are and outstanding may harm the interest, rignt, titles privileges of some party.

Such person may institute a suit, praying for cancellation of such written document, and the court in its discretion if thinks it proper may order for Cancellation of such written document. There may be documents of contract which are void as they are against Law Public Policy or violable if they are vitiated by fraud coercion or other similar grounds. The parties to the document may also cancel such documents by mutual consent without referring to the court. An agreement for sale, lease, mortgage,licence, partition, may be cancelled by the parties which consent of all parties.

But at times, the matter of cancellation of document may not be so simple as same parties may want to take undue advantage, or very mature of document may not make it simple task. A deed of conveyance which is duly executed and registered cannot be cancelled by mere deed of cancellation. The proper course would be to execute a reconveyance deed and get it duly registered. But if the original deed of conveyance is executed on account of fraud, coercions or incase of any disagreement among the parties, the chances of mutual consent to cancel agreement are very remote. In such cases, the affected party has seek the intervention of the court by filing suit as per the provisions of section 13 of specific relief Act.

If any of the documents are unregistered, it may be cancelled by consent of all the parties by scoring off or by endorsing it about cancellation. But in both cases, all the parties should sign the document for having cancelled.

Cancellation deed attracts the stamp duty as per section 17 ofIndian stamp Act, that is stamp duty is payable only if it is attested by witness. A cancellation deed which is not attested attracts stamp duty as per agreement. If the main deed needs to be registered. Cancellation deed also needs to be registered.

An article about " Construction firm in the dock for deficient service "

Construction firm in the dock for deficient service

The Karnataka State Consumer Disputes Redressal Commission has found, Kattada, a partnership firm in High Grounds, guilty of deficient service and has ordered it to pay up Rs 10,000 as compensation to a consumer for causing him mental distress.

The complainant, C.D. George, had complained against Kattada to the Commission and requested it to direct Kattada to execute and register the sale deed in his name of the flat bought from them, and to provide a covered parking area in front of the main building and servant quarters onthe terrace as assured by them. He had also demanded one set of certified copies of documents of title related to the said flat.

Mr George told the Commission that the firm constructed flat No. 301 at RMV Extension, but without the parking area in front of the main building and servants quarters on the terrace. They also did not provide the toilet on the terrace.

Commission President T. Jayarama Chouta, and members Abdul Perwad and Rama Ananth told Kattada to provide the parking area in front of the main building and servants quarters, and to furnish the certified copies of documents of title relating to the flat. BUILDERS: Ms. Kashiamma had seen an advertisement in the papers in which Messrs M Hussain, T A Shahul Hameed and Mohammad Iqbal of Mangalore had proposed to construct a multi-storeye dapartment complex known as 'Golden Apartments' .

She approached the party which agreed to sell her oneresidential apartment for Rs. 10 lakhs. MS Kashiamma paid up Rs. 5 lakh to Mohammad Iqbal of Kedavath Towers, Mission Street, Mangalore in 1997.

The sellers were supposed to complete the construction of the entire complex within 18 months failing which they were liable to refund the advance amount paid with interest at 20 per cent. However even after 18 months, only upto the roof slab of the first floor was complete. They did not refund the money as requested by her and she complained to the Commission.

The opposite parties filed their version with the Commission denying all the allegations of the complainant. They also denied the fact of receiving a sum of Rs. 5 lakh as advance from her. Finding the three sellers guilty of deficient service, the Commission ordered them to refund Rs. 5 lakh to the complainant with interest at 20 per cent from 1997 till date of payment along with Rs. 10,00,000 as iquidat- ed damages for breach of contract committed by the parties, residing in Fathima Mansion, Highland, Manga- lore and Mission Street, Mangalore.

An article about " Deed of Convenant for Production of Title Deeds "

Deed of Convenant for Production of Title Deeds

The transfer of immovable property by way of sales, gift, will, releases etc. presupposes that documents to the title of transferred immovable property are delivered to the transferee on completion of process. This is statutory obligation. Section No. 55(3) of Transfer of Property Act, casts this responsibility on the seller. But the section has a proviso that in case where only a part of the property is sold and the seller retains a part of the property the seller is entitled to retain the original documents, and copies of such documents are delivered to the purchaser.

In case, where the property is transferred to different persons, in different lots, the transferee of greatest portion is entitled to hold the documents of title and others are provided with copies of such documents.

In the circumstances dealt above, the persons holding the documents either the seller or one who hold the greatest portion has some responsibilities. He has to keep the documents in safe custody and in good condition. He has to make available the documents for inspection to otherbuyers, and also furnish the true copies of such documents; extract from such documents, whenever required.

But the cost has to be met by the buyer who needs such inspection or copies, extracts. Those responsibilities are required to be recorded properly.

The document, which records such obligations of safe keeping the documents; producing them for inspection, providing copies, extracts is called "Deed of convenant for production of documents."

The deed of transfer like sale, gift, will, and release may contain such a convenant by the vendor in favour of purchaser or a separate deed may also be executed by the vendor in favour of purchaser.

In case of the person holding greatest portion, a separate convenant deed about his obligations becomes necessary. A separate deed in favour of each of other transferee of other portions or a common deed in favour of all other transferees jointly may be executed.

In the deed of transfer of the greatest portion or of highest value an explicit convenant, that, the transferee shall safe keep the documents in good condition, produce for inspection of other transferee and furnish true copies or extract should be included. Similar relevant convenant should also be incorporated in deed of transfer of other transferees.

Generally all the portions of the property are not transferred at the same time, and the above suggested procedure may not be possible. In such cases, the transferor should give a convenant of production of documents in each of the deeds of transfer and it should further provide that if and when the transferor hands over the documents to any other transferee at a later date he would procure a similar condition from the such transferee.

Under a convenant of production of document, the original convenantor remains liable indefinitely unless a condition provides that he is no more responsible after he parts with the remaining portion of the property.

Stamp duty: In case the condition is included in the deed transfer itself, no separate stamp duty is payable. If a separate deed is executed, it attracts the stamp duty as that of an agreement depending upon the stamp duty prescribed by the state.

Registration: This deed of convenant does not require the registration, but it is advisable to get it registered.

An article about " EXECUTION POWERS OF CONSUMER FORUM RESTORED "

EXECUTION POWERS OF CONSUMER FORUM RESTORED

After four years of losing its power the Consumer Protection Act (CPA) in Karnataka has got back its teeth. In a landmark judgment the Supreme Court has upheld the constitutional validity of the CPA and has said that the redressal agencies set up under the CPA are empowered to execute its orders on its own. Disposing off the petition filed by the Vishwabharathi House Building Co-operative Society (VBHBCS) of Bangalore the Apex Court has virtually put an end to all the controversies surrounding the validity of CPA. This is a boon for consumers particularly of Kamataka, who were finding the orders worthless.

The story goes back to 1999 when Karnataka high court in the case of Paramjit Singh Vs. Union of India decided that Section 27 of the CPA was against the Constitution. Section 27 relates to enforcement of the orders of the Forum and Commission and the powers to imprison in case the orders are not followed. As a result the forums and commission in Karnataka lost their teeth thereby denying consumers the benefit of CPA.

The Government of Karnataka went on appeal in the Supreme Court against this order. In the meantime the (VBHBCS) also went on appeal against another order of the Division Bench of the Karnataka high court which had upheld the constitutional validity of the CPA.

In its appeal, the VBHBCS has raised several issues questioning the constitutional validity of CPA. It argued that without amending Article 368 no forums can be created as it would result in conflict of decisions. Further it argued that Parliament could not enact the CPA by establishing forums which are substitutes of the civil courts for it struck at the independence of the judiciary.

Refusing to buy these arguments, Supreme Court has said that Parliament and State Legislatures are competent to create courts and tribunals as provided in Schedule VII of the Constitution. Referring the Section 3 of the CPA the court has ruled that the argument of VBHBCS is fallacious inasmuch as the provisions of the CPA are in addition to the provisions of any other law for the time being in force. The CPA, the court said, supplements and not supplants the jurisdiction of the civil courts of other statutory authorities.

Regarding the powers of the redressal agencies for execution of its orders, the Supreme Court has held that Section 27 is akin to Order 39 Rule 2A of the Code of Civil Procedure and provisions of the Contempt of Courts Act. Further, the CPA is a self contained code and has power to execute their own order. Hence redressal agencies need not send all their orders to civilcourts for execution. They have full powers to execute orders including imposing fine or imprisonment.

An article about " FENG SHUI AND ARCHITECTURE "

FENG SHUI AND ARCHITECTURE

Feng Shui is the Chinese philosophy regarding how one can live in har- mony with nature. It is balance between the universe and the individual's personal space. With the help of Feng Shui, one can tap the best of the positive energy to enhance one's health, wealth happiness and acquire good fortune. The literal translation of Feng Shui means 'wind' & 'water' - wind & water are two things in nature that are absolutely necessary for all living beings and indicate constant movement, likewise in the life of human beings, constant movement is necessary otherwise stagnation occurs. Energies stagnated, brings misfortunes and ill health.

Every single thing is made of energy. We must see to it that positive energy is generated and moved around all the time. For this, please remember to respect space. Create space in your house by designing it in such a way that you never overcome with the feeling of clause trophobia. Rooms should not surround you with feelings of narrow- ness. Let your house breathe. Open your house to natural light and air. Let your main door be facing an empty space, "the outside bright hall effect" and let it open into an empty space, which is the "inner bright hall" where energies can accumulate before moving and meandering gently all over your house and energizing it.

Shape of the plot or flat has an important bearing on your life. Please choose a house / flat which has a regular shape and has no missing corners. Let your architect plan it in such a way that your house retains the regular shape and does not be- come L or U shaped or any other odd shape. Let your interior decoration Abha Pandey also not get carried away with making missing corners with par- titions etc. Each and every corner has importance in your life. All the directions playa role in enriching your life with their particular bounty. This includes the middle of the house also. Sharp and jutting corners, overhead beams, exposed beams, pillars in the house, pillars in the middle of the rooms are not quite the things to have around. Theses can be rounded up, beams can be dis- guised; false ceilings can also be put to hide the exposed beams.

You may also design a place as not to have two, three or more doors in a straight line. Let the front and the back door not be op- posite each other. See that your windows are not directly opposite the doors / or other windows. This is a sure way of letting the good energy escape quickly. Let the main door be designed, bigger than the other doors which are sec- ondary doors.

These guidelines are given, so that, you can get your home de- signed to get the maximum benefit of your good luck. Your main door is one of the most important feature in your house. We shall discuss "MAIN DOORS" in our next issue.