A property lawyer in Mumbai checks the title to a property, prepares and vets documents such as agreements for sale, sale deeds, gift deeds, release deeds and leave and license agreements, deals with registration and stamp duty, and appears in disputes over ownership, possession, partition and tenancy. A transfer of immovable property is generally valid only if it is made by a registered document on which the proper stamp duty has been paid.
Property matters in Maharashtra are governed by central and state laws. The Transfer of Property Act, 1882 sets out how property is sold, mortgaged, leased and gifted. The Registration Act, 1908 decides which documents must be registered. The Maharashtra Stamp Act, 1958 fixes the duty on each type of document.
Flats in a co-operative housing society or an apartment building raise further questions. The papers of the society, the approvals of the planning authority and the position under the Maharashtra Ownership Flats Act, 1963 and the Real Estate (Regulation and Development) Act, 2016 are examined along with the title.
Property transactions
Work on a sale, purchase, gift, release or lease usually begins with the documents of the property and ends with a registered instrument.
Common transactions are:
- Agreement for sale and sale deed of a flat, shop, plot or building
- Resale of a flat in a co-operative housing society, with the share certificate and transfer papers
- Gift deed and release deed between family members or co-owners
- Leave and license agreements and leases
- Mortgage and loan documents in the property
Title verification and due diligence
A title check shows whether the seller can lawfully sell and whether the property carries a mortgage, a pending case or another claim. The search is made on the chain of earlier documents and on public records.
The papers examined usually include:
- Chain of title documents for a period of years, commonly thirty
- Search at the Sub-Registrar office for registered documents and encumbrances
- Property card, 7/12 extract or other revenue record, as the property requires
- Sanctioned plans, commencement and occupation certificates
- Society records, share certificate, no-dues letter and conveyance position
- Dues of property tax, society charges and loan
Agreements and documentation
The terms of the transaction are set out in writing. A document that is vague about the property, the price, the payment schedule or the date of possession is a common cause of later disputes.
Documents are drafted or vetted with the following points in view:
- Description of the property by survey or CTS number, carpet area and boundaries
- Payment schedule, earnest money and the effect of default
- Date of possession and the consequence of delay
- Representations about title and the remedy if they are wrong
- Stamp duty, registration charges and who bears them
Registration and stamp duty
Under the Registration Act, 1908 a sale of immovable property, a gift and a lease for more than one year must be made by a registered instrument. A document is presented for registration within four months of its execution, and a late presentation attracts a fine within the limits of the Act.
Stamp duty is payable under the Maharashtra Stamp Act, 1958 on the market value or the consideration, as the Act provides. The rates and the cess differ by the type of document and the place, and they are revised from time to time. The current schedule and the Ready Reckoner value should be checked on the day of the transaction.
Property disputes
Disputes are taken to the civil courts or to the forum the statute provides. The relief sought and the court depend on the facts.
Matters taken up include:
- Suits for declaration of title and for possession
- Suits for permanent and temporary injunction
- Partition among co-owners and family members
- Disputes with a landlord or tenant under the Maharashtra Rent Control Act, 1999
- Boundary and encroachment disputes
- Specific performance of an agreement for sale under the Specific Relief Act, 1963
- Appeals and revision before the High Court
Redevelopment, compliance and approvals
Property work often touches planning and approvals. This covers mutation of names in the records, conversion of land use, no-objection certificates, property tax matters and the compliance of a project under RERA and the Development Control and Promotion Regulations, 2034. Redevelopment and housing society matters are described under RERA and Redevelopment.
How a matter is run
- Identify the propertyThe property, the parties and the transaction or the dispute are identified from the papers.
- Read the recordThe title documents, registered instruments, approvals and society or revenue records are examined.
- Assess the positionThe legal position, the risks and the right forum or authority are explained.
- Draft, register and appearDocuments are drafted and registered, notices are sent, and the matter is filed and argued where a dispute requires it.
Laws and forums
Laws that usually apply
- Transfer of Property Act, 1882
- Registration Act, 1908
- Maharashtra Stamp Act, 1958
- Specific Relief Act, 1963
- Limitation Act, 1963
- Code of Civil Procedure, 1908
- Maharashtra Rent Control Act, 1999
- Maharashtra Ownership Flats Act, 1963
- Maharashtra Apartment Ownership Act, 1970
- Maharashtra Co-operative Societies Act, 1960
- Real Estate (Regulation and Development) Act, 2016
- Maharashtra Regional and Town Planning Act, 1966
- Maharashtra Land Revenue Code, 1966
- Development Control and Promotion Regulations, 2034
Courts and forums
- Civil courts and the City Civil Court, Mumbai
- Small Causes Court, Mumbai, for rent and licence matters
- Sub-Registrar offices
- Co-operative courts and the Registrar
- Bombay High Court, in appeals and writ petitions
Frequently asked questions
What documents should be checked before buying a flat in Mumbai?
The documents usually checked are the chain of title, the registered agreements, the sanctioned plans and the occupation certificate, the society share certificate and no-dues letter, the conveyance position of the society, the RERA registration of the project where it applies, and a search at the Sub-Registrar office for encumbrances.
What is the difference between an agreement for sale and a sale deed?
An agreement for sale records the terms on which the property will be sold and is usually made before the sale is complete. A sale deed is the document that transfers the title. For immovable property the sale deed has to be registered.
Is registration of a property document compulsory?
Registration is compulsory for a sale of immovable property, a gift of immovable property and a lease for more than one year, among the documents listed in section 17 of the Registration Act, 1908. An unregistered document of this kind does not transfer the interest.
What is a release deed?
A release deed is a document by which a person gives up a right or share in a property to another person who already has an interest in it, commonly a co-owner. A release of rights in immovable property is generally stamped and registered.
What happens if a property document is registered late?
A document has to be presented for registration within four months of its execution. If it is presented late, the Registrar can accept it on payment of a fine within the limits of the Registration Act, 1908. The document is also open to a penalty for deficient stamp duty.
Can a property dispute be settled without a trial?
Yes. Many property disputes are settled by an agreement between the parties, recorded in a consent term or a settlement deed. A settlement that affects title to immovable property is registered.
What is deemed conveyance?
Deemed conveyance is a process under which the competent authority can issue a certificate that allows a housing society to register the conveyance of its land and building when the promoter has not executed the conveyance as the law requires.
Related practice areas
General information only. This page is for information. It is not legal advice, an advertisement or a solicitation, and it makes no claim about results. The law changes, and the position in a case depends on its facts. A professional relationship begins only when the advocate agrees to act in a matter.