FORUM
Shedding light on Easement Right
I propose to buy a second hand flat. My seller has acquired it through initial allotment from the promoters. The promoters have adopted the following modus operandi. Proportionate undivided share - Absolute Right through sale deed executed by Power Agent.
Equal undivided share - Easement right through discharge by way of receipt for the total consideration of land including Proportionate Absolute UDS Right signed by the Power Agent with the names of principal vendors. .As there is no other document written by the principal vendors granting the Easement Right, can this right be transferred to me by my seller? Can this right be conveyed to successors in title including assignees?
If so, can this be made part of conveyance deed of the flat mentioning both Absolute Right over proportionate UDS and Undivided Easement Right? Does it require concurrence of the Principal vendors? Is the transfer valid in the absence of any written grant document signed by the
principal vendor? If not valid, can a separate conveyance be made by the principal vendor in my favour now? Will the stamp duty be payable on the present conveyance including the value of easement right? If so, the same guideline value applicable to absolute right would apply to easement right also?
V.Padma
Kodambakkam
Chennai 600 024
Our panellist, Mr. R.L.Narayanan replies: Many promoters do adopt this kind of transaction. The wordings in the documents have to be seen to come to a clear understanding as to how the rights have been transferred to you. Generally, the rights that a person has in a property can be transferred to a transferee. The transferee will also obtain the same rights as the transferor. Please note that the transferee cannot get a better right in the property than the transferor. The rights referred by you may or may not be easement and depends on the facts and circumstances of the case. Please get the issue clarified with your lawyer.
Is the contract valid?
I reside in the US and bought a flat for my mom in Chennai from a reputed builder.
They promised to give me the flat by September 2006...but till today (January 2007), they have not given us the keys.
The initial plan had a balcony attached to the master bedroom. Now, it seems that the balcony has not been approved and they are waiting for CMDA approval.
We even asked them to forget about the balcony and build us a wall with a French window. They refused! Also, they bring up the contract which states that the builder has a time of 18 months from the date of registration to hand over the flat.
a. Is the contract valid considering the fact that it was based on an unapproved plan?
Venu.
Mr. Narayanan replies: The contract is an agreement which is signed by both parties. The wordings in the agreement are very vital and important in interpreting the understanding of the parties.
Having signed the agreement with an understanding, it is difficult to take a different stand later when the facts do not meet the expectations. If the agreement is to the effect that the flat can be delivered 18 months after registration is effected, then the builder may insist that the builder's obligation to deliver arises only on that day. However, you may be able to take such action as is otherwise available in law, if there is deficiency in the services of the builder or under other circumstances as permitted by law.
b. What are my options?
Mr. Narayanan replies: There are several options. My view has always been that getting possession of the completed flat is the most important factor and actions should be taken accordingly. Please, however, consult your advocate before taking any action in this regard.
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