The title of the property indicates the ownership right to property.
A person having the appropriate title to a particular property implies an entitlement of such a person to the pleasure of rights or interests in a property, for example – use, possession, income by way of rent, etc.
Sufficient documentary evidence always supports a title. A clear title of a property is invariably essential for the continuous enjoyment of property without the barrier of any third party. A clear title to the property is a powerful and a valid defense against interference by any other person not being an owner.
The dispute that results out of title may be during the action of acquiring the property or post transaction, such as, legal heirs, claims by third parties, wrong representations by the seller, co-owners, improper description of the property in the title deeds, easement rights disputes etc.
Sometimes people purchased property without
- Examining or visiting the physical location of the property
- Finding out the actual person in the possession
- Checking the latest development or regional plan
- Confirming the right of access to property (easement rights)
- Knowing whether easement rights are violated
When a property being subject to a school, road setback, welfare centre reservation or reservation of playground or garden. Moreover, it is not described to the buyer, and the buyer ends up without inquiring about the same and pays earnest payment or advance money and later finds out the reality of a property being restricted in its use. It leads him to cancel the contract of sale and request refund of money from the seller. Vendors of such property or land having played fraud refuse to refund the money to the buyer, and thus, it leads the buyer to the court of law disputing the title. In such a situation, free enjoyment does not continue either to the buyer or the seller without disturbance of any third party interests.
SEE: Is RTI Application Helpful in Case of Property and Land Disputes
Title defect may also occur if there is any notice served by the government authority for the possession of such property or such property being subject to restrictions and claims by the state and the seller ends up selling it without representing the defect in title to the purchaser.
Important things to do before acquiring immovable property and the safeguards to be employed to minimize the risk involved.
- It is always safe to continue with the investigation of the title to the immovable property. Before acquiring one, a thorough verification and inspection of the title documents of the property for minimum 30 years or more should be conducted. A title search can be done with the help of the documents stated below.
For Example –
- A full series of documents of property transfer, i.e. chain of registered agreements, inheritance, stamps duty payments, etc., advertisements and gazette announcements, etc.
- Complete revenue records of land, i.e. 7/12 extract (Saat-Baara Utara) etc.
- Translation from agricultural to non-agricultural, de-notification of Adivasi land etc.
- City Survey Plan indicating the boundaries of the plot or plots of land.
- If any land-owner inherited the property and land, then Will or Testament and Probate in favor of the inheritor.
- If there was any dispute regarding ownership at any time (i.e. Previous owners or present owner, then copies of the final court judgment.
- If land was mortgaged to any financial institution or bank, then all papers of the bank etc. relinquishing the lien in support of the owner.
- If land was leased by the government, then lease agreement and receipts of lease rent payments.
- Registered agreement between the builder or promoter and the land-owner.
- Visiting the actual site or the property which is to be acquired.
- Verifying the access area or any encroachment thereto.
- Checking with a local authority (any restrictions on land use).
- Checking with neighbouring land owners.
- Cross checking the land boundaries with DILR authorities.
- Conducting government survey, finding out and verifying the actual land described matches with the GutbookNakasha (plan).
- Issuing a public notice in two or more languages and distributing in the local area.
- Doing Index – II register searches at the sub-registrar of assurances department.
- Conducting a lawsuit search at jurisdictional civil court and revenue authorities.
- Search revenue records.
- Checking with the local civic authority whether any notice is accepted for any obligation or a particular land for acquisition or restriction is being imposed.
- Check reservation on the plot by perusing Development Plan or Regional plan from the local development authority.
- Review all mutation entry in 6/12 extract matches with 7/12 extract.
- Search if there is any bank lien or mortgage of the property – Look and insist on original title-deeds or documents.
- If acquiring a flat in a residence society, check with the society’s claims if any, on that particular flat /house such as maintenance and benefits thereof check with the co-owners or nominees having the right to such house or flat including whether how owner offered to purchase the flat.
- Check and verify holders of the land by inquiring their proper identity proof before paying attention or part there to each one of them.
- Check if there are any responsibilities of the legal heirs – whether all requirements such as – No objection certificate (N.O.C) from each legal heir is been taken, who maybe put a claim in future and they have been performed a confirming party to the final registered instrument. Make sure that only obtaining N.O.C would not suffice, as such legal heirs may raise future claims to a property.
- Verify whether the property which is to be acquired is a leasehold property or a freehold ownership. Moreover, verify a property whether it is an ancestral property or self-acquired. Also, confirm whether the lessee is entitled to further sublease or assign the property to the third party for consideration or not, by examining the title lease deed between the lessee and the actual lessor. After that, also, be sure to check whether any premium or consideration and permission have to be required or paid by the seller from the state or collector of a district before assigning such property or land and whether such premium has been paid or permission has been obtained from the qualified authority with that respect.
- Examine whether the seller is authorized to sell the property as a guardian of the minor’s property – whether suitable court’s order has been obtained to that effect.
- Moreover, also, verify if the property to be purchased is self-acquired property or ancestral property, as various hidden claims may subsequently arise in the former case, where the legal heirs are not identified, disclosed, or are not traceable at a given point.
- Before acquiring any Devasthan inam land, Khalsa land, 32-G tenancy land, whether essential government permissions are obtained by the seller.
- In case a property is to be acquired from the Non-resident Indian ( NRI), it is most crucial to be aware of Tax Deduction before paying him/her the full and final payment by the purchaser. If a property purchased from Indian national origin only 1 % of the T.D.S needs to be diminished by the purchaser out of the total sale, continue consideration to be paid to the seller which is paid to the state by the purchaser and he/she need to issue a T.D.S certificate to the seller individually.
- Ask as much as information by the seller and surrounding property owners.
- Moreover, the development potential of the land must also be checked to determine the loss or financial benefits arising out of such a transaction. It may be done by appointing an architect and knowing the repercussions of the land.
The above type of operation is usually handled by an Advocate or a reputed title investigator. Thus, it is wise to appoint a suitable professional legal expert concerning the investigation of the title to the immovable property, so as to avoid disputes at a later stage.
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