Transfer and Transmission of Flats
Transfer and Transmission of Flats
In any development project, it is significant to guarantee that the quality of the product being brought by a developer to the allottees is good and durable. By formingresponsibility on the developer to be accountable and responsible for any defects that ascend within a given period, the law forces the developer to usage quality material and resources in construction.
Transfer of flat refers to the transfer of title to flat, voluntarily, by one party to another. Transmission of flat means the transfer of title to flat by the operation of law.
The law applicable for transfer and transmission of flats transactions in the state of Maharashtra are as follows:
- Maharashtra Ownership flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1962 (MOFA).
- Real Estate (Regulation and Development )Act 2016 (RERA).
Under MOFA, if the developer is brought to notice that there is defect in the building or material being used for building, within a period of 3 years from the date of handling over the possession of the flat by the developer to the customer. It will be the developer responsibility to :
- if rectification of such a defect is possible then the developer has to rectify without any further charges levied on the customer.
- In case the defect is not rectifiable then the developer would be required to pay a reasonable compensation as is determined by the competent authority.
The hurdle under the MOFA is that competent authority, is not functional and in case a customer wants to recourse the defect of liability under the provision of MOFA to ascertain compensation, it would need to approach the civil court.
In case of RERA, within a period of five years from the date of handling over possession of the flat to the allottees, any structural defect or any defect in workmanship, quality or provision of services or any other obligation of the Promoter as per Agreement for Sale is brought to the notice of the Promoter:
- Without any further charges to the allotee, within a period of 30 days, the promoter has to rectify the defects.
- The allottee would be entitled to receive appropriate compensation in the manner as provided under the Act, in case the promoter fails to rectify such defect within the agreed timeline.
Transmission of Flats:
Transmission is passing of property or rights therein on the death of the erstwhile owner. It takes place in agreement with the requirements of the deceased or in the nonappearance of any expression of such requirements, in agreement with the provisions of succession laws applicable to him.
Transfer of Flats:
- Co-operative Society: Ownership of the building vests in the Society and the members have right of occupancy which right itself is specie of the property.
- Condominium: Flats in condominium are not the property of the condominium but remain the property of the apartment owner and can be transferred like any immovable property by execution and registration of a Deed of Apartment ( Sale Deed).
- Company: When accompany is formed in accordance with the provision of MOFA the land and building conveyed by the promoter belongs to the company.
If the original owner of shares makes a nomination in favour of somebody else, membership in co-operative society or company can be conveniently transferred. Person acquiring membership by nomination shall hold the flat in trust till the legal heirs are brought on record and shall not have the right to ownership and shall not create third party interest or alienation in any way whatsoever.
Without making a nomination or no nominee, if a member dies then the society invites claims or objections by a public notice and then the committee decides the person who in its opinion is the legal heir of the deceased.
The Transmission by nomination in respect of shares in a co-operative society is not a conclusive proof of ownership and can be challenged by other claimants in suitable proceedings.
- Co-operative Society: The members of the society have right of occupancy which right itself is specie of the property and ownership of the building vests in the society.
- Company: In accordance with the provision of MOFA when a company is formed, the land and building conveyed by the promoter belongs to the Company.
- Condominium: The property remain with the owner of the apartment and can be transferred like any immovable property by execution and registration of a Deed of Apartment.
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