• Can sale agreement be registered without nomination transfer

I am buying an under construction flat from an investor. The flat is not registered in the investors name. The builder is saying that my rights would be better protected if directly a sale agreement is registered with a nomination clause ( from investor to my name) in same and I would be paying stamp and registration duty on basis of above registered sale agreement. 
Is is possible that sale agreement can be registered without the nomination transfer b/w investor and myself.
Please guide
Asked 4 years ago in Property Law
Religion: Hindu

First answer received in 30 minutes.

Lawyers are available now to answer your questions.

17 Answers

For the registration their should exchange of consideration and exchange of ownership as per the procedure of civil code .

If the ownership in not registered then the clouse itself in invalid in the eye of law.

Rita Rajput
Advocate, Thane
189 Answers
2 Consultations

Not rated

you should insist that tripartite agreement be entered into between investor , builder and your self

2) no need for any nomination clause

3) insist on no due certificate from the builder

4) transfer charges if any to be paid by investor

Ajay Sethi
Advocate, Mumbai
87917 Answers
6207 Consultations

5.0 on 5.0

1) If flat is not registered on Investor's name than how can it will be transferred on your name ?

2) Get the price set with investor and transfer the property in proper hierarchy from builder to you. One should purchase property as per mutation records and who is current owner because property is under construction.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

It depends upon wordings of the agreement. Please take first wordings you propose.

Jugal Kishore Agrawal
Advocate, Jaipur
81 Answers

Not rated

1. The right of buyer can also be protected if the sale agreement is not registered.

2. however of you apply for bank loan then registration of sale agreement becomes mandatory. Otherwise not.

3. In the sale agreement your can be shown as nominee with the developer shown as confirming party.

Feel free to contact further.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

Nomination has to be transferred as well.

It is not advised to get the flat transfer alone without getting the nomination transferred or a NOC from the investor.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

This is my response to you:

1. Sale deed is not valid if there is no sale deed;

2. A flat is not effectively transferred without a sale deed, payment of stamp duty and registration fees;

3. Therefore directly communicate with the seller of the flat i.e. the builder, execute the documents with him and transfer the property;

4. If you have complied with all the requirements mentioned above then go ahead with the sale.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

1. make the investor a confirming party and you will be the purchaser in the sale agreement

2. you can pay the consideration to the investor under the above agreement and also the transfer fee to the builder

3. any balance consideration can then be paid by you directly to the builder under the above agreement

Yusuf Rampurawala
Advocate, Mumbai
6880 Answers
79 Consultations

5.0 on 5.0

In that case you may directly get a sale deed done with the builder. The lawyer of he builder has provided the right solution. You right as a buyer will remain protected.

Just take one NOC from Mr. X to remain on the safer side.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1) Yes, you rights are safe and property will be transferred on your name.

2) here the bank will pay amount to nomination and you will get ownership from builder, ao no issue in tgis transcations.

3) At the time of sale agreement insert clause that nominee and builder does not have any rights on the property after reimbursement of money by bank. And the agreement wil be saying that bothbof them had got consideration against this property.

Ganesh Kadam
Advocate, Pune
12335 Answers
191 Consultations

4.9 on 5.0

since X has paid 95 per cent of sale value better that regd sale be executed by builder in favour of X

2) you can then purchase flat from X subject to obtaining NOC from builder

3) in alternative tripartite agreement be executed between seller , buyer and builder as confirming party

Ajay Sethi
Advocate, Mumbai
87917 Answers
6207 Consultations

5.0 on 5.0

1. No sale agreement between you and the builder can be executed or registered unless and until your seller also takes part in it.

2. So the right in the property vests with both the builder and the your seller and without bypassing any of them you can not acquire any better title in it.

3. Since no proper advice can be given on contents of a document without going through it so for giving further advice on it you will have to share the proposed agreement.

Good luck.

Devajyoti Barman
Advocate, Kolkata
22515 Answers
402 Consultations

5.0 on 5.0

As per your situation you have two options to proceed with:

1. Direct transfer of under construction property also called as Bi-party transfer.

2. Tri-party transfer for which you need to enter into a tri party agreement between builder, initial allotte/seller and buyer(you).

But there are many loopholes in direct transfer of Under construction property Which are as mentioned below;

 1. Legal Transfer of Property Title: There is confusion between various govt departments on the transfer of property title. At a macro level, there is a supreme court ruling on the same subject. A property title can only be transferred through conveyance deed which is registered in Sub-Registrar office. This conveyance deed can only be executed when the property is constructed and ready for possession. In short, for under construction property the title of the property rests with the builder or landowner till Sale Deed or Conveyance deed is not executed in the favour of a buyer.

The contrary view is the ruling of income tax department. It states that for calculation of capital gain, date of allotment of under construction property will be considered as Date of acquisition. It implies that buyer vest the property title from Date of Allotment of under construction property.

I will go by the ruling of Supreme Court of India in this regard. Therefore, if buyer signs the transfer or assignment deed only with the seller then it is legally null and void. Reason being, property title is still not transferred to the seller by the builder. Subsequently, the seller is not authorized to transfer his rights or interest in a property to a buyer and only the builder can do so. In Direct Transfer of Under Construction Property, there is no agreement between buyer and the builder. The entire transaction is based on NOC issued by the builder.

2. High-Risk Transaction: As i mentioned that direct transfer of Under Construction Property is High-Risk transaction. To share an example, the entire transaction rests on builder NOC and seller always insist on direct payment from a buyer to seller. Recently, i came across a case in which seller got 3 NOC’s issued for the Transfer of Under Construction Property. He took money from all 3 buyers and is now absconding. As a buyer, you cannot ensure that NOC issued by the builder is the lone NOC and there is NO intent of financial fraud. This is one of the examples and there can be multiple possibilities of financial fraud.

3. Enforcement of Agreement: Assuming i bought a property from person A through Direct Transfer of Under Construction Property. We mutually agreed upon certain terms and conditions which we included in our bi-party agreement. Now tomorrow builder may refuse to accept these legal clauses as he is not a party to the agreement. Therefore, Sale Agreement or Assignment Deed signed between the seller and the buyer is legally not enforceable. Moreover, all the details like payment status etc in the agreement will be based on seller’s declaration. In future builder can always dispute any specific clause in the agreement. In case of landowner’s share, a buyer may land in a bigger trouble as total 5-6 parties are involved depending on the case to case basis.

4. Financial Implication: Lastly, any direct transfer of Under Construction Property can have a financial implication for the buyer. In such cases, i have observed that builder may put across illegitimate financial demands from the buyer. If buyer protest, the builder has a simple reply that he discussed these charges with the seller. Moreover, builder NOC does not mention anything on payment front therefore it is important that buyer should involve builder in the property transaction.

Now coming onto conclusion:

To safeguard buyer’s interest in property transactions, It is advisable to enter into a tri-party agreement / assignment deed / transfer deed. It is the responsibility of a seller to convince builder. As a buyer, there is no compulsion or force to enter into an agreement. It is seller’s problem and by entering into a direct transfer of under construction property the buyer is risking his hard earned money. If buyer’s will not agree for direct transfer of Under Construction Property then builder’s will be forced to change the process.

Ruchit Dugar
Advocate, New Delhi
190 Answers

4.9 on 5.0

I am buying an under construction flat from an investor. The flat is not registered in the investors name. The builder is saying that my rights would be better protected if directly a sale agreement is registered with a nomination clause ( from investor to my name) in same and I would be paying stamp and registration duty on basis of above registered sale agreement.

Is is possible that sale agreement can be registered without the nomination transfer b/w investor and myself.

Please guide

Your builder/seller is suggesting an incorrect procedure, this may lead to a problem at a later stage, hence you may not agree for this arrangement.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

So I would humbly request to advice, as to whether my right as buyer is safegaurded in this process. Also should I prepare and keep a copy of nomination agreement between me and Mr X on non judicial stamp paper.

Please suggest the best possible way out.

There is no question of transferring the proeprty to nominee;

It would be better you enter into a tripartite agreement between the builder, first buyer and yourself so that your interests will be defended.

T Kalaiselvan
Advocate, Vellore
78070 Answers
1543 Consultations

5.0 on 5.0

1. You can either register a tripartite agreement with the allotee, the builder and also yourself for buying the flat and thereafter get the sale deed of the flat registered in your name after its completion and your paying off the balance amount as per the said tripartite agreement.

2. Alternatively, you can enter in to an agreement with the allotee and he shall have ton right to the builder for transferring the allotment in your favour after paying the specific charge for the said transfer of allotment.

3. The above procedure of transferring the allotment is mostly followed by the established builders like Srachi etc. and before making any payment you shall have to take NOC from the builder for your entering in to agreement with the said allotee for transfer of the allotment of the property.

4. The builder also should inform you the amount yet to be paid by the allotee before the allotment is transferred in your name.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

1. The procedure of nomination proposed by the builder is unheard of and is not recommended at all.

2. Either get the tripartite agreement signed by the builder, the allotee and yourself to enter in to shoes of the allotee or (if the builder is too reputed to register the tripartite agreement) you can avail the alternate procedure suggested in my earlier post.

Krishna Kishore Ganguly
Advocate, Kolkata
26602 Answers
726 Consultations

5.0 on 5.0

Ask a Lawyer

Get legal answers from lawyers in 1 hour. It's quick, easy, and anonymous!
  Ask a lawyer