• Importance of Builder Buyer Agreement

I became a member of Housing Society and got a Flat allotted to me by a Private builder on my name only. Later on while preparing the Builder Buyer Agreement and Tri party (Society, Builder, Buyer) Agreement I taken my wife along as Co-Applicant. Both the Agreements were on 100 Rs Stamp Papers signed by Me, Wife, Rep of Builder and Rep of Society but without any witness and is not registered/ notarised also. I took loan from our Organisation on only my name and from LICHFCL on the name of me and wife. All the payments/loan instalments been paid by me only through my single salary account and receipts issued by builder on my name only.
Now I have matrimonial dispute with my wife and separated since last two years. She is getting maintenance from me and suit of divorce U/S 13 filed by me is pending.


Q- Whether I can get this flat registered on my name only? If yes how? Builder is not cooperating.
Asked 2 years ago in Property Law from Bikaner, Rajasthan
1. Why was the builder buyer agreement prepared after the allotment of flat?

2. A co-applicant is a person who applies along with the borrower for a loan. A co-applicant becomes equally liable for repayment of the loan amount in case of default by the primary applicant.

3. Your wife must have been a co-applicant only at the time of applying for loan to LICHFCL. Nobody could have been inducted as a co-applicant in the agreement you entered into with the builder. If you alone have signed the agreement as a buyer then the builder is liable to register the conveyance deed in only your favour. Your wife cannot legally insist that she should also be made a co-owner by virtue of being a co-applicant for loan. 

4. If builder is not cooperating then issue a lawyer's notice to him for cancellation of the agreement and/or to claim the refund of advance and damages.
Ashish Davessar
Advocate, Jaipur
18167 Answers
449 Consultations
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1. Sorry, since your wife is added as co-owner of the property vide the sale agreement it will be considered as joint property for both of you.
2. Your EMI payment does not make any difference.
3. only if she gifts her half share in the flat in your name, then and then only you would become its absolute owner.
4. Else the same continue to be joint property of both of you.
Devajyoti Barman
Advocate, Kolkata
5231 Answers
54 Consultations
4.9 on 5.0
Hello,

1)In the tri- partite   Builder - Buyer agreement your wife is a co- applicant and so is the case in the loan from LICHFCL. In this case regardless of the fact that the agreement was not registered the builder can raise objections legitimately in registering the flat in your name.

2) It would not really matter whether the payment is made by you alone as far as the application is joint and the loan.

3)It is advisable to reach a settlement with your wife and get her to execute a gift deed in your favour or relinquish her part in your favour as before the law she has 50% share in the property as co owner.
S J Mathew
Advocate, Mumbai
1950 Answers
65 Consultations
5.0 on 5.0
1) the sale deed is executed by builder in your joint names . 

2) the loan has been taken by you for flat in joint names 

3) merely because you are paying EMI of flat does not make you absolute owner of the flat . 

4) the builder has rightly rejected your request for registration of flat in your name . 

5) your wife can execute gift deed in your favour . once gift deed is executed you would be absolute owner of the property . 

6) since you and your wife are staying separate for 2 years and you have filed for  divorce unilaterally you should convert existing divorce petition filed by you into divorce by mutual consent . 

7) in consent terms clause should be incorporated that wife would execute gift deed in your favour in respect of flat standing in joint names
Ajay Sethi
Advocate, Mumbai
23302 Answers
1220 Consultations
5.0 on 5.0
Hi,
 The facts are not very clear from your narration. If the agreement was not registered one how did you obtain a loan , the reason of the tripartite agreement.
 1. If the agreement is signed by both of you you have  equal right.
 2. Why was there a tripartite  agreement and is it is not a registered one with stamp duty, this must be a registered one.
3. the loan EMI details can help you to show that you are paying  the loan.
4. You can send a legal notice to the builder if he is not obliging to register it in your name. 
 It is advisable that you show the existing documents to an advocate personally or else the advocate who handles your divorce matter.
 If the property is in the joint names your wife has the right  and you should get it in your name transferred through either a gift deed or release deed.
Thresiamma G. Mathew
Advocate, Mumbai
1316 Answers
85 Consultations
5.0 on 5.0
rule of estoppel will apply in your case because all the parties were ignorant at the time of execution of deed and loan is already sanctioned on this document so opposite party can't take defense that there is legal lacuna in the document. registration gives binding capacity to the deed and if it is not registered then it will not binding on the party and also court can not give judgment on the basis of unregistered document but it does not mean that this document has no value. this document is primary evidence to show that all the parties are agreed on some terms and any transaction has occurred.

if builder has not been objected that deed is unregistered and got benefit out of this transaction then he is bound by this document however it is unregistered. his conduct is relevant fact and you can prove before the court that transaction is accepted by the builder .
Shivendra Pratap Singh
Advocate, Lucknow
2760 Answers
41 Consultations
4.9 on 5.0
1. How come you have added your wife's name as co-applicant when the flat was already allotted to you based on your application? She could have been inducted as co-owner through a seperate letter and not as co-applicant,

2. However, since the subsequent aggrements with te builder and society have not been registered or notarised, you can withdraw the same, if possible and ask the builder and society to register the title deed in your favour,

3. If your wife has not paid any amount towards the consideration of the flat, then you can certainly claim its sole ownership,

4. If the property has already been registered in both of your names, then you shall have to file a declaratory suit praying for declaration that you are the sole owner of the property with a direction upon the registrar to cancel the earlier registratiion and register it in your name.
Krishna Kishore Ganguly
Advocate, Kolkata
12123 Answers
232 Consultations
5.0 on 5.0

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