A legal transfer of property from one entity to another also occurs during the purchase of a home, making it more than just a transaction. It sometimes makes sense (or is even required) for home buyers or sellers to hire an attorney to represent their best interests because the legal aspects of this transaction can be so complicated.
Having a lawyer on your side can be an investment that pays for itself, even though you’ll probably already be dealing with a lot of expenses as you work to close on your home.
Depending on your location, state laws, and the particulars of the transaction, you might need a property lawyer’s services. Before discussing the benefits of hiring a lawyer, it’s crucial to comprehend Indian property laws.
Property Laws in India
State-specific and federal laws both apply to India’s real estate laws. This is so because in the Indian Constitution, “Land” belongs to the State List, while “Transfer of property and registration of deeds and documents” belongs to the Concurrent List. The process of buying and registering a property may therefore seem difficult. Let’s first go over the foundational elements of Indian real estate law.
The Real Estate (Regulation and Development) Act, 2016
Real estate projects are developed, marketed, and sold under the Real Estate (Regulation and Development) Act of 2016 and the Real Estate Regulatory Authority, or RERA. It was created to safeguard customers’ interests in the real estate industry. It established the Real Estate Regulatory Authority and the Appellate Tribunal as a fast-track dispute resolution mechanism. Real estate projects and important players must also be registered, according to the law.
The Registration Act, 1908
A system for registering land is not included in Indian real estate law. Registration, on the other hand, refers to the papers used to transfer ownership from buyer to seller. The Registration Act of 1908 mandates the registration of all land instruments and documents. In India, the system for registering documents is clearly laid out, and there is a robust government apparatus in place to register and maintain these documents.
The Indian Stamp Act, 1899
The Indian Stamp Act of 1899 governs the payment of stamp duty on real estate. It is a sizeable portion of the fees related to registering property, and the buyer is required to pay it to the state governments. The rates differ by state because they are set by the state government. The majority of states assess stamp duty as a % of the total transaction value.
The Transfer of Property Act, 1882
When buying and selling property, another law that applies is the Transfer of Property Act of 1882. The Transfer of Property Act defines a “sale” as the transfer of ownership in exchange for a price that has been paid in full or that has been partially paid and promised in full. According to the aforementioned Registration Act of 1908, only registered documents may be used to transfer tangible immovable property. Any material flaw in the property or the seller’s title that the seller is unaware of and that the buyer could not discover with reasonable care must be disclosed to the buyer, according to Section 55 of the Act. The buyer is entitled to compensation or indemnification from the seller in the event of a misrepresentation.
The buyer should exercise due diligence and check the seller’s title even though the seller has disclosed all information regarding the property and his title. There you have it—a brief summary of Indian real estate laws. Now let’s talk about the paperwork a buyer needs to look over before buying a house.
Read more about property disputes in India
Role Of Property Lawyer
Real estate attorneys handle everything, including title investigations and dispute settlement. To ascertain whether the title is free and clear for development or sale, they must perform due diligence on the property. Following the instructions of their client, they must then produce title search reports or title search certificates. To assist their clients in reaching a fair and cooperative agreement, they also search for active mortgages and legal disputes involving the property. They offer their clients advice on real estate-related matters. Memoranda of Understanding, Lease Agreements, Leave and Licensing Agreements, and other documents are written by them. They also handle disputes involving land or property. Their customers include everyone from homebuyers to promoters and developers.
When should you hire a property lawyer?
Review property ownership
An attorney for real estate will make sure the seller has unambiguous and transferable ownership rights to the property being sold. The property should be free and clear of any pending legal matters, and the title should be transferable. In the event that there is a chain of multiple owners of the property, the attorney will confirm this after reviewing the deed or deeds. To verify the information in the title deed, the attorney will consult with relevant authorities such as the Public Index at the municipal office, the local registration office, the land reform office, and the land revenue office.
The attorney will check to make sure the property is free of liens and hasn’t been used by the seller as collateral for any loans. A property cannot be sold to the buyer until all debts and charges are paid in full. The attorney will investigate the property to see if there are any active lawsuits, requisition notices, or acquisition notices. In the event that these issues occur, the property transfer is void.
Make sure all the necessary approval are in place
A real estate attorney will make sure that all required approvals for the transfer of property have been obtained from the appropriate authorities before the sale of a property can start. These approvals include nods from regulatory agencies like the land development authority, planning authority, environmental authority, income tax department, and so forth.
A real estate attorney will be aware that, in accordance with Indian real estate law, extra care must be taken when dealing with trusts, minors, widows, and lunatics. Additionally, extra care must be taken when dealing with places of worship or regions subject to various personal laws.
Power of attorney
On parcels of land owned by different owners under the Power of Attorney, developments are frequently constructed. When working with one or more powers of attorney on the sale of a property, a real estate lawyer will be aware of the safety measures to be taken.
It is the responsibility of real estate attorneys to carefully draught the various legal documents required for purchasing and selling real estate. These papers are listed below:
This is the main real estate legal document outlining the terms and conditions that apply to both the buyer and the seller. Legal action may be taken if either party violates the terms of the agreement.
This document gives the seller the title, ownership, and rights of the buyer. The conveyance deed shall be approved and signed by the attorneys for the parties hereto.
To make the sale of a property and the transfer of ownership legally binding, the lawyer must file the original deeds with the registration office.
Real estate lawyers who prioritise the best interests of their clients will handle any disputes that surface during the sale of the property.
Find Best Property lawyers with WeVaad
There are many reasons why lawyers are important, but it can be challenging to find a good one when you need one and have legal problems. To make an informed choice, there are a few qualities you should look for in a great lawyer. We are aware that for many people, conducting research can be a difficult task. Finding the best attorney for your legal case requires a lot of searching through legal directories.
WeVaad can help you find the ideal attorney for your legal dispute to make the process simpler. We Have A Wide Range Of Lawyers In India Who Has Handled Different Types Of Disputes Before Different Courts In India. To help our clients find the top attorney in their city, our panel has been carefully selected.