LEGAL TERMS IN PROPERTY DOCUMENT

Advocate Selvakumar|Property Advocates in Bangalore|Senior Lawyer

A single word will change the nature or understanding of the transaction and are many cases and matters that are selected the idea of the wordings utilized within the document wherever the interpretation of words, phrases and terms by the courts have set the fate of the parties. 

You may have come upon terms like "Indenture of Sale", "Indenture ofLease", etc. One could also be curious on what's meant by indenture and the way it's totally different from deed. Formerly, associate indenture meant a document cut with serrated edges which is able to match with the counterpart of the document. In different words, the copies thus cut had indented edges that created forgery troublesome. Now, although the language continues to be used, this kind of document is much non-existent. At present, indentures is taken to mean documents, sometimes within the nature of a contract, that area unit signed by each or all parties involved. 

Similarly, an influence of lawyer will begin with wordings like "Know All Men by these Presents". The term "presents" indicates the "Deed" itself. Further, one might come upon terms like "one or additional lots". Originally, the term "lot" or "lots" was used as indicating a parcel of land that was sometimes divided. "Lots" additionally meant contiguous parcels of lands. You’ll realize this in usages like "parking lot", etc.

The term "real estate" itself has return to mean stabile property. it's used synonymous  for lands, tenements, hereditaments and therefore the rights concerning immovable property as distinguished against personal properties like product and different properties that area unit essentially not stabile properties.

The word "Tenements" signifies properties that may be control by someone that area unit of a permanent nature. It additionally means that a house and different kinds of stabile properties. The word "Hereditaments" indicates any property which may be transmitted and includes movable and private property additionally.

The word "appurtenant" means that relating or happiness to and is employed in such sense in deeds and documents. The word "Appurtenances" utilized in conveyances like Sale Deed, etc. means that associate interest or a right during a property attendant the principal right that is additional valuable and necessary. The word "Easement" within the Sale Deed is explicit to be the proper or a privilege that someone has on the property of another. It additionally includes a right to relish a profit arising out of associate immovable property. Usually, this can be utilized in the context of indicating a right of method, pathways, a right of air, a right of tight passing through, etc.

The word "License" utilized in a deed indicates grant of a right or associate authority to try and do one thing within the stabile property, that right or authority, except for the authorization, are going to be smuggled or wrongful or unlawful. It’s essentially within the nature of permission. This doesn't produce associate interest within the stabile property, however creates a right or a privilege that is sometimes reversible. Once acting below the proper or privilege, the person physical exertion the proper or privilege, referred to as "Licensee" enjoys immunity for the acts done. 

The term "Metes and Bounds" showing in deeds would indicate description or details of the boundary lines of the land, at the side of terminal points and angles. The term "Admeasurement" or "Admeasuring" is used wherever the particular extent of the length and breadth of the property is given.

Legal Documentations

There are many different terms and words which can seem innocuous and apparently repetitive. it's attainable that there's a way of discomfort in not knowing specifically what the words or terms mean after you are to sign sure documents since the words and terms as understood may be wholly totally different than meant within the document. Presumption of obscure notions might land you in hassle. If you are doing not perceive a selected usage, it's higher to visualize up together with your advocate or someone having data of those terms and clear all doubts.

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NEED FOR DRAFTING OF PROPERTY DOCUMENTS

Advocate Selvakumar|Property Advocates in Bangalore|Senior Lawyer

Identifying a suitable property is that the opening taken towards the acquisition of a property. when finishing identical, documentation is that future and extremely necessary reality. The agreement to sell is dominated by the provisions of the Bharat Contract Act (1872) and so the Transfer of Property Act (1882).

Mode of tax

Previously, documents were prepared on the stamp paper issued by the government. Department. when the ‘Telgi Scam’, usage of the stamp papers was prohibited in Karnataka. Now, a papers or Rs a combine of document sheet that's issued by the department of Registration is most popular. regarding taxation, it's to be created either by suggests that of Pay a pay order / Demand Draft or Banker’s Cheque in favor of the concerned Sub-Registrar. The Registration charges, either by suggests that of a DD or cash, should be submitted to the concerned Sub-Registrar. the most points of the tax and registration charges are entered by the Sub-Registrar on the reverse side of the sale deed.

The beginning

The documents contain several distinct elements. The name and description of the documents is that the first, among the documents. This offers a general indication regarding the character of the document. However, contents are the foremost necessary issue to form a call the character of the document. The date and place of the execution of the document is that the beginning of the document. The date of the documents may dissent from the date of registration. The documents are given for registration within four months from the date of execution. However, the date and place of execution is extremely necessary for the aim of deciding the limitation and jurisdiction.

The name of the parties to the contract, their age, father’s name, simply just in case of a girl her husband’s name, and place of their residence need to be mentioned. All the householders, reciprocally of the parties to the contract, need to take rife care at the time of execution such documents. The party to the contract may act for himself/itself or on his/their behalf, may even be delineated by different capability. In such case, the party need to clearly mention on what capability he/they area unit being delineated , that's in addition one in each of the important aspects among the documents.

All the relevant facts in an extremely logical and record order need to be narrated. The rights and obligations of the parties ought to be expressed. The intention of the party need to even be clearly mentioned among the document.

The ‘Preamble’

The Preamble reveals the history of the property, nature of the dealing and so the intention of the party. The previous history of the property are established, by an advocate, from the Preamble.

Operative portion

The operative portion of the document states the character of event, on whether or not or not it's an absolute transfer or an agreement to transfer the proper, title and interest, the thought paid, mode of payment of such thought and balance owed, if any. The length of the completion of event need to be mentioned clearly. The covenants of the vendor, referring to clear and marketable titles, ar a really necessary side for the transfer.

Default clause

In case of a default among the payment or non-performance of the opposite party, remedy to be taken, should be processed among the document itself.In case of delayed payment, what is the share of interest owed or damages owed to the other party or the modes to terminate the agreement simply just in case of breach, need to be expressed clearly. just in case of non-performance, execution clause need to even be closed among the document. The clause is healthier to be incorporated among the agreement.

Possession

Possession is that the foremost necessary ingredient of the event. The time of delivery of possession need to be clearly and specifically mentioned. It ought to be noted that the seller needn't provide the possession of the property to the shopper on the execution of the agreement or on [*fr1] payment. Possession should air completion of the sale methodology and receipt of the whole thought amount once execution of the conveyance deed. The agreement need to in addition sit down with the mode of possession of the property and whether or not or not it's vacant or not. Once the property is discharged, the seller should indurate a rental agreement between the current tenant and so the shopper of the property.

Description

Location and description need to contain the total live, the municipal vary, street, road, with complete and proper boundaries and properties shut the property in agreement to be sold-out. It need to in addition embrace the globe, floors, type of constructions and materials used among others. the main points need to be thorough so on verify the property clearly as Section 21 and twenty two of the Indian Registration Act makes it necessary to disclose the most points.

Execution

At the end, the document need to contain and endeavor that the executants is linguistic communication the documents before the witnesses. The witnesses, who sign up the document, may or may not grasp the contents of the agreement. Whereas, among the case of willing witnesses, who have a precise interest among the property, would grasp the contents of the documents. The non-testamentary document need to be written by an Advocate or commissioned documents author which they need to register identical.

Preservation

Preservation of the initial document is that the foremost important side as a result of it's an proof of ascertaining the possession of a particular person and case of his death, for his or her legal heirs. If the initial document is misplaced or unavailable , it'd seriously have an impact on the title of the property. it ought to be probable  that the property documents are pledged with some cash institutions by suggests that of deposit of title deeds. It’s higher to laminate the documents and preserve them in safe custody.

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GPA FOR PROPERTY TRANSACTIONS

Property lawyers in Bangalore|Property transfer advisor|Advocate Selvakumar

Power of attorney is one in every of the documents that is being executed most extensively bearing on the transactions involving transfer of properties, regardless of modes of conveyance. The most reason being inability of the person, either the transferee or the transferred to be gift at completely different place at a similar time. So as to complete such transactions, in their absence, GPA is executed; authorizing another person to try and do acts or sure acts on his/her behalf. Such associate instrument empowering a such that person to perform such act in his absence is termed as General Power of attorney, as envisaged within the Power of attorney Act 1882.

The instrument of Power of attorney is predicated on the conception of Law of Agency, whereby the Principal, i.e., the one that executes GPA, authorizes Agent, that is, the person in whose favor such Power of attorney is executed, to try and do all such necessary acts per the ability of attorney on his behalf and additional ratifies such acts of the Agent and also the said conception has been recognized underneath the statute thereby giving legal quality.

Competency of the Parties:

The following are the necessary necessities before executing Power of Attorney:

Majors: it's necessary that each the Principal and also the Agent should have earned the age of majority as a result of contract entered between 2 parties, wherein, either of the one may be a minor, isn't recognized under Law. Hence, it's important that each the parties ought to be higher than 18 years aged.

Sound Mind: it's conjointly necessary that each the Principal and also the Agent should be of the sound mind since the contract with the person of unsound mind doesn't bind the parties to such a contract.

Types of Power of Attorney:

•GPA: GPA provides wide power to the agent to try and do numerous acts on behalf of the Principal, with none specifications.

•Special Power of attorney: Special Power of professional is dead in those cases whereby the agent is authorized to try and do such acts per such Power of Attorney. during this reasonably Power of professional, the ability given to the agent are going to be revoked as presently as that individual act that the ability of attorney is executed, is performed associated once such an act is completed, Power of attorney doesn't live. 

Sub-delegation of power:

The general principal is that associate agent will neither sub-delegate his powers to a Sub-agent nor will appoint another power of professional. The said principle is well expressed in Latin maxim “Delegate non protest delegate”, which implies someone who is delegated with sure powers cannot delegate such powers to a 3rd person. But, section one hundred ninety of the Indian Contract Act provides sure exceptions, whereby the agent will appoint sub-agent. However, such sub-delegation should be done in connivance with the Principal, who needs to formalize all the acts done by the agent on his behalf. the subsequent area unit the circumstances underneath that Sub-delegation is permitted:

•The nature, custom of the trade is such it needs the appointment of sub-agents.

•The recitals in such power of attorney authorize the agent to sub-delegate his powers to a different agent.

Registration and Notarization:

Under Section seventeen of the Registration Act, if any group action involves transfer, assignment, creation of right, title, and interest over the stabile property and also the price of such property is Rs.100 or additional, then registration of documents is necessary. 

As regards execution of GPA, if principle assigns right, title and interest over the stabile property in favor of the agent and authorizes the agent to execute any document on his behalf, in such case registration of the ability of attorney is preferred. However, if the agent is delegated with the powers that don’t involve any reasonably assignment or transfer of interest over the stabile property, then power of attorney notarized before official or perhaps before the adjudicator, is taken into account to be authenticate documents.

Thus for instance, if someone executes Power of attorney, authorizing the ability of professional Holder to execute sale deed on his behalf before the right registering officer, then it's better to urge such power of attorney registered. On the opposite hand, if Power of professional is dead, authorizing the ability of professional holder to prosecute or defend the suit, then criterion is often notarized before official. However, the Court shall presume that an influence of attorney executed before and attested by official or Court, Judge, Magistrate, Indian consul, Vice-consul ,Representative of the Central Government was therefore dead and attested. If the ability of professional isn't signed and sealed as required under law, it's nothing over a paper.

In either of the case, every page of the document, whether or not registered or notarized, needs to bear official stamp of the Sub-Registrar workplace or official and should disclose the number, Book variety and signature of the Sub-Registrar or notary. If a similar is notarized, then, with the exception of the higher than, acceptable functionary Stamp needs to be mounted.

Outside India: Section eighty five of the Indian proof Act applies equally to documents attested by Notaries Public of different countries. However, a similar needs to be done by the selected Officers. Therefore any power of professional dead outside India shall be attested by notary of such country or Indian Consul/Embassy.

Stamp Duty: Power of professional, dead and notarized in any country in favor of Power of professional Holder, residing in India, needs to be punctually sealed among four months from the date of receipt of a similar and also the stamp tax in such case needs to be at the District Registrar’s workplace. However, if a similar is dead in India, similar needs to be dead on the document sheet, punctually sealed. stamp duty in either of the case are going to be Rs.100- if a similar is executed in favor of one to five of them and if power of attorney is given to over five persons, then the particular stamp tax collectible is Rs.200/-.

Cancellation of G.P.A: Power of attorney is often off by either of the parties to the aforementioned contract. However, a similar needs to be done by giving correct notice to the opposite, clearly mentioning the intention of the person to revoke the said Power of attorney and see to it result needs to run to the general public. However, the Principal cannot cancel the agency once the agent exercises his powers part. If the ability of attorney is given just for the particular purpose which purpose is fulfilled or if either of them dies or becomes unsound, then such associate instrument mechanically gets off. If the agent himself has any interest within the property that is that the material of the agency, then a similar cannot be off unless the agent agrees.

Representation of Owner: In Bangalore, there are a unit several instances whereby it's seen that the ability of attorney Holder, in his individual capability, representing himself because the owner rather than the particular owner can convey stabile property, that act doesn't confer any reasonably right over the purchasers since the document itself is void and not binding on the parties. Therefore it's important to verify on whether or not the conveyance has been created by the criterion Holder, punctually representing his Principal/Owner.

In the recent times, with the growing boom of land in Bangalore, the instrument of General Power of professional is taking part in a major role, not only in reference to sale or purchase of the property, however conjointly all told different connected fields. However, abundant caution needs to be taken at the time of executing Power of attorney and also cancellation of a similar as a result of a similar may be used as a weapon involving acts of fraud or conspiracy to misguide and cheat public.

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AGREEMENTS FOR SELLING OF IMMOVABLE PROPERTY

Advocate Selvakumar|Property Advocates in Bangalore|Senior Lawyer

The pre demand of sale of stabile property is agreement to sell. The agreement to sell contains, terms of sale, thought, time limit, the entire description of property in agreement to be sold , terms of payment, redeeming possession and rights of each the parties to enforce the agreement, and penalty for not performing the contract. Generally, the purchaser pays some quantity as advance quantity, earnest to seller that is acknowledged by the vendor within the agreement. 

Importance of Sale Agreement:

The sale deed could be a document that contains general terms that are similar in most of the deeds. 

But the agreement to sell could be a specialized document that conceptualizes the terms of contract. The skill, knowledge, expertise of the advocate is mirrored in drafting the agreement to sell and therefore the clauses inserted to shield the interest of the customer, who has compound together with his cash.

There is a practice among several to avoid the sale agreements and to travel directly available deeds. This can be terribly risky. Agreement to sell is needed to avail the bank finance. Apart from availing finance while not a sale agreement no one is guaranteed to execute sale deed and convey the property, which might back out at the last moment. Although the customer had created all the arrangements for the thought quantity and revenue enhancement the seller might back out if he finds another customer for higher thought. Likewise, even the customer may additionally back out if he finds similar property for lesser thought. The sale agreements bind all the parties to perform the contract.

The process of sale is ruled by the provisions of Transfer of Property Act. If there's any conditions in agreement to sell that vary from the rights and obligations of the vendor, customer as elaborated in Transfer of Property Act, the terms that are in agreement in agreement to sell shall prevail over. If no conditions, are mentioned in agreement, the rights and obligations of marketer, purchaser as elaborated in Transfer of Property Act comes into force. Having paid the advance quantity, (or) earnest, can the customer have any charge, lien over the property for the amounts paid? The Transfer of Property Act governs the rights and obligations of vender and customer.

Rights of Agreement Holder:

In case of sale, the customer gets title and possession to the property as long as the transfer is affected in accordance with the law u/s fifty four of T.P. Act, managing sale of stabile property. Sec fifty four of T.P. Act states that – “Sale however created – such transfer within the case of tangible stabile property of the worth of 1 hundred rupees and upwards, --- is created solely be registered instrument.”So registration of the sale deed is necessary and solely thenceforth the customer gets title. It conjointly states that the agreement to sale itself doesn't produce any interest in or charge on such property. During this reasonably state of affairs if the vendor refuses to transfer the property beneath agreement to sale then the queries that arise for thought are:

-Whether customer beneath agreement to sale is entitled to solely damages alternatively stabile property as per agreement?

-If the customer beneath agreement to sale is in possession of stabile property will he be disposed of stabile property?

So far as 1st question worries Sec forty of Transfer of Property Act states that “Where a 3rd person is entitled to the good thing about associate obligation arising out of contract and annexed to the possession of stabile property however not amounting to interest in that or easement on it, such right or obligation is also implemented against a transferee with notice there from .

Ex: – “A Contracts to sell a house to ‘B’ whereas the contract continues to be operative he sells identical house to ‘C’ who has notice of the contract.  ‘B’ might enforce the contract against ‘C’ to identical extent as against ‘A’.  From this we discover that, the customer with notice of a previous contract available of identical property is within the eye of the law could be a trustee of the potential customer of previous agreement of the property thus purchased. Even u/s 91 of the Trusts Act, the title of the following customer with notice of the previous agreement is subject to the obligations created by the agreement to sell. So, the agreement holder might proceed against a customer of the property who had notice of contract prevailing. Sec twenty seven (b) of the particular Relief Act entitles the customer beneath agreement to sell to compel consequent customer to execute a buying deal deed in his favor.  

In order to possess higher hold on the property in agreement to be customer the agreement to sell is also registered, and a paper notification is also free to apprize the overall public regarding the agreement. 

Purchaser in possession of the property:

For the second question as aforesaid earlier i.e., if the customer beneath agreement to sale is in possession of the property, will he be unfortunate of the stabile property?

In this regard Sec. 53-A of the T.P, Act 1882, provides that:-

1. The transferred i.e., marketer has in agreement to sell for thought any stabile property.      

2. Such agreement is in writing and signed by him.

3. The contract provides for getting of the property before execution and registration of sale deed.

4. Partly performance of the contract, the vendor has place the customer in possession of the property in agreement to be sold .

5. The customer beneath agreement being already in possession continues in possession partly performance of the contract, as long as the customer has done some act in furtherance of contract.

6. The customer beneath agreement has performed or is willing to perform his part of the contract.

Then purchaser beneath agreement is entitled to shield his possession of stabile property. Whereas agreement of sale is subsisting; someone who purchases the property with notice of previous agreement of sale his right; is subject to such previous agreement to sale.

It is to be noted this profit is availed of solely by people who were place into possession by virtue of a legal instrument. someone seeking protection of philosophy of half performance must prove that he has partly performance of the contract has taken possession of the property and just in case he was already in possession he continues to be in such possession partly performance of the contract and had done some act in furtherance of the contract. Additionally the customer beneath agreement must show that he's willing to perform his part of the contract. The only course for marketer in such cases is to visualize for payment of balance thought.

The maximum stamp duty payable on agreement to sell while not possession in state is Rs.200/- and registration charges are Rs.1,000/-.

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