Legal Advice

Deemed conveyance by builder or promoter after thirty seven years 

Question: Deemed conveyance by builder or promoter after thirty seven years is possible or not. Hi, I live in a housing society which has not got its conveyance in 37 years. The promoters are very much around. In fact one of them stays in our housing society. The builder has passed away. In 2014 our chawl restarted the process of conveyance after we failed miserably in 2008 under the amnesty scheme. What bothers me is that we have opted to go for deemed conveyance even without completely exhausting the possibility of getting the conveyance from the promoter directly.  No official letter sent by the managing committee & no legal notice served. Which is one of the most important documents for the deemed conveyance. I suspect some of the committee members are in cahoots with the promoters who harbour the ambition of redeveloping our project. I have singularly been voicing to serve a legal notice on the promoters.  Please advise the best step forward as the AGM comes up in a week's time? Thanks in advance

Advise

The flat takers have been residing here for thirty seven years. Builder never wanted to construct any more flats because he never applied to the concerned authority for granting additional floor space index (FSI). Therefore, it is a fit case for deemed conveyance. 

Deemed conveyance

For deemed conveyance the terms and condition of the agreement duly executed between the builder/promoter and flat buyers shall still applicable. You (flat buyers) cannot ignore the conditions to which agreements for sale were executed. In Tushar Jivram Chauhan v. State of Maharashtra, 2015 SCC OnLine Bom 3865 the Bombay High Court has held that the entitlement of deemed conveyance, even if any, cannot be beyond the agreement between the parties.

It is settled that one cannot transfer any movable and immovable property unless he possesses the right to do so in accordance with law. There are various facets and/or aspects of transfer of property movable and/or immovable. 

If, according to the prevailing terms and conditions of the agreement for sale, builder/promoter and his legal heirs still have the power to execute deed of conveyance in the favour of flat buyers, then you can approach the concerned authority under the MOFA Act, to compel the builder’s legal heir to execute conveyance deed.     

The Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Rules, 1964, Rule. 13 deals with deemed conveyance. Thus, deemed conveyance is still possible by builder or promoter even after thirty seven years of transferring possession to the flat buyers. 

In this situation you should apply to the appropriate authority constituted under the MOFA Act, to issue a deemed conveyance certificate to the flat buyers. 

Shivendra Pratap Singh

Advocate

High Court Lucknow

Property

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