By Admin, LegalFormatsIndia.com
Dec 8, 2020
A. (i) Under Section 10 of The Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (“MOFA”) read with Rule 8 of The Maharashtra Ownership Flats (Regulation of the Promotion of Construction, etc.) Rules, 1964 (“the said Rules”) , the Promoters/ Developers are required to form a society within 4 (four) months from the date on which minimum number of persons required to form such organization have taken premises/flats.
(ii) Under Section 11 of MOFA, the Promoters/Developers are required to convey the land and the building to the society or body of the purchasers within the period agreed upon in the agreement executed under Section 4 of MOFA or within prescribed period being 4 months from the date of incorporation of the society as per Rule 9 of the said Rules.
B. If the Developers fail to “convey” the land and building by executing the Deed of Conveyance and/or Deed of Assignment as may be the case, in that event the society and/or any other body of the flat Purchasers can follow the procedure for obtaining “Deemed Conveyance” as provided in Section 11 (3) to 11 (5) of MOFA.
C. Procedure for obtaining “Deemed Conveyance”
(i) The society should first collect and organize all the relevant documents such as society Registration Certificate, Property Card or 7/12 extract, sanctioned plans, IOC, CC and OC, copies of all the Agreements for Sale of initial Purchasers, Registration Receipt, Stamp Duty payment proof etc.
(ii) The Society should call General Body Meeting (AGM or SGM) of the members of the Society and to interalia pass the following resolutions, namely: –
(a) To apply for Deemed Conveyance;
(b) To authorize certain representatives of the society to sign necessary papers, documents including Deed of conveyance etc. as may be required for the purpose and also authorize them to adopt and do all necessary acts, deeds and things as may be required for the purpose including the appointment of Advocate/s, Counsel, Architects, Consultants etc.
(c) To approve the budget/cost for the same;
(iii) To issue a notice to the concerned Promoters/Developers/Builders calling upon them to execute and/or cause to be executed the Conveyance of the subject land and the Building in favour of the society.
(iv) If the Promoters/Developers/Builders fails or refuses to execute the conveyance, to make an Application in writing to the Competent Authority (alongwith all the relevant documents as also resolution of the society) appointed under MOFA for issuing a Certificate/Order that the Society’s is entitled to have unilateral Deemed Conveyance in their favour and to have it registered.
(v) The Competent Authority after making necessary enquiry, verifying the authenticity of the given documents and giving the Developers/Builders a reasonable opportunity of being heard, may certify, in reasonable time, that it is a fit case for enforcing unilateral execution of conveyance Deed conveying the land and building in favour of the society.
(vi) After the said Order /certificate is passed, the society should submit the draft Deed of Conveyance for approval of the Competent Authority.
(vii) Once the draft Deed of Conveyance is approved by the Competent Authority, the society should submit the same to the Collector of Stamps for determining the stamp duty on the same. If there is any deficit in the payment of stamp duty to pay the same and obtain the duly stamped Deed from the Collector of Stamps office.
(viii) Thereafter, the society should lodge the said duly stamped Deed of Conveyance alongwith the certificate/ certified order for registration.
(ix) The Registering Authority (Registrar/Sub-Registrar) shall, after following the due process, issue summons to the Developer to show cause why such unilateral Deed of Conveyance should not be registered as “Deemed Conveyance” and after giving a reasonable opportunity of being heard to all the concerned, the Registering Authority will register the document of “Deemed Conveyance”.
(x) Thereafter on the basis, of the registered document of “Deemed Conveyance”, the society can apply for entering their name in property card and/or 7/12 extracts and other revenue records of the Government as Owner of the property.
D. Advantages of Deemed Conveyance:-
(i) Society gets clear title to the property with full right to own and re-develop the same of its own with all the development benefits attached to the property including FSI, TDR etc. without any reference and/or recourse to the old Developers/Builders.
(ii) The society can raise the loan from the Banks for self-re-development of the property.
(iii) The Society can appoint new Developers/Builders to re-develop the said property without investing any amount.
E. Disadvantages of Deemed Conveyance:-
(i) Nominal cost (compare to the benefits) and efforts involved.