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Possession without occupancy certificate

Shivendra Pratap Singh

Advocate (Lucknow)

Online advising since Oct. 2014

Property | RERA

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Question: My builder has issued a possession letter without obtaining an occupancy certificate. Some portion of construction is still pending and it will take a few months to complete. Can I move into the flat and take possession when the builder has no completion certificate. He is doing some irregularity in construction therefore, wants to give possession to us. Is there any legal problem in the occupancy of flat?

Question from: Tamil Nadu

Builders should take a completion certificate from the competent authority before giving possession of flats. Occupancy certificate or completion certificate is an important document because it proves that the flat is fit for occupancy. It also proves that the construction has been done in compliance of building rules and other laws applicable thereon. 

Possession without occupancy certificate 

If a flat buyer takes possession in absence of occupancy certificate it may cause harm to his property rights. The buyer may lose his property if there is any malpractice in construction work. If the builder has breached any rule or permission the competent authority can demolish the construction. Therefore, taking possession without a completion certificate may pose apparent risk.

The buyer has a right under Section 19 RERA, to obtain the information towards sanctioned plans, layout plans along with the specifications, approved by the competent authority. When the buyer has assured that construction is done in conformity of law and there is no legal glitch then he can take possession.

When the builder intentionally gives possession without the occupancy certificate, the buyer can cancel the agreement. The buyer can also claim a refund of money because the builder has breached the agreement to sell. According to the sale agreement the builder is bound to take all necessary certificates and permissions from competent authority before giving the possession to the buyer.

You should not take possession of the flat in absence of the occupancy certificate. Compel the builder to take the completion certificate. You should file a complaint before the development authority or municipality or housing board if builder has refused to take OC.

What to do when promoter issues possession without having occupancy and completion certificate?

Question: What to do when promoter issues possession without having occupancy and completion certificate? Promoter given possession in Dec 2018 without having completion certificate and occupancy certificate from Noida Authority. Promoter charging interest @18% for non payment of balance 5% . Is it under rule that Promoter can charge interest for any balance payment to be made to Promoter.

Asked from: Uttar Pradesh

The promoter is doing wrong. He has no right to give possession of the flat without having completion certificate and occupancy certificate. This constitutes a deficiency in service [Treaty Construction v. Ruby Tower Coop. Housing Society Ltd., (2019) 8 SCC 157] as well as a breach of law. 

You should immediately bring this information on the knowledge of the Noida Authority. However, this is a deficiency in service hence you can file a complaint in the consumer forum for directing the promoter to take valid permission and compensate the buyers if there is any defect in permission. If the value of property is beyond fifty lakh then you can file the complaint in the state consumer commission, Lucknow.


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shivendra pratap singh advocate

Shivendra Pratap Singh

Advocate (Lucknow)

You can consult on Criminal, Civil, Matrimonial, Writ, Service matters, Property, Revenue and RERA related issues.

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