• Selling unregistered flat (in BLR) before registration

Hi,

me and my wife booked 2 BHK flat in BLR wit a builder
Construction completed, we have paid everything including deposits and TAX(GST)
Builder charges to 100 Rs for sft for transfer.
we have moved to US now.

We found a buyer who is interested in buy our flat.
My wife's father in India, we can give GPA to him to carry out transactions.
We have checked the builder, they says, after paying transfer charges, they will create tri-party agreement for transfer(draft). This document has to signed by both ( me and my buyer) and register at sub-registrar office. this registered document will be provided to builder .

my question is that,
is this the correct process?
i want my buyer to pay me all the amount while signing transfer agreement. is this ok?
Asked 2 years ago in Property Law
Religion: Hindu

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15 Answers

This is my response to you:

1. It is not a problem;

2. The document can be signed by GPA holder as well, but then again the GPA has to be registered;

3. If you can come to India for one day and execute and register the tri-party agreement then it will be better;

4. Also the buyer will have to pay the whole consideration to you then only go for registration;

5. Tell the buyer to make a DD of the whole amount;

6. As long the tri-party agreement is registered with the sub-registrar there will be no problem;

7. If the buyer is ok with the builder keeping the document then the you have nothing to worry;

8. Also execute an indemnity bond from the builder stating that if in case the buyer files a case the builder will indemnify you for your loss.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Firstly, payment in almost all the cases have been made at two instances first, at the time of agreement and second at the time of registration of the sale deed.

Secondly, after the recent judgment of Supteme Court GPA or POA can’t be used for property transaction.

Thirdly, but if it is executed in the favour of a close relative like father mother specially then it may be acceptable before the registrar as well as in the eyes of court of law.

Sanjay Baniwal
Advocate, South Delhi
5464 Answers
13 Consultations

5.0 on 5.0

Yes the process is correct give you father in law a POA for registration and execution of sale to the buyer. Get poa notarized in USA and stamped with indian. Consulate and further your father in law shall get it validated with SDM.

Also the tri party agreement is correct procedure for transferring the flat with you as the confirming party.

At agreement you can take advance of 20 30 percent and time.can be give for.rest payment further he has to.make payment in full before sale deed. Also if he ready to pay then no.difficulty at time of agreement also.

Shubham Jhajharia
Advocate, Ahmedabad
25462 Answers
110 Consultations

5.0 on 5.0

Tripartite agreement has to be executed between seller , buyer and builder

2) agreement should be duly stamped and registered

3) transfer charges have to be paid by seller

3) at time of registration buyer will pay entire sale consideration

Ajay Sethi
Advocate, Mumbai
78415 Answers
4703 Consultations

5.0 on 5.0

Your question: " Sale deed" here means the transfer agreement right ?

Answer: Sale Deed means the transfer agreement;

Your question: me and wife can give GPA to my wife's father right? is it legal.

Answer: If the property is jointly purchased by you and your wife and as joint owners then you can give it to your wife's father. If its solely in your name, then GPA to Father-in-law will invite stamp duty charges;

Your question: do we or our GPA holder need to present, when actual registration of the flat happens ?

Answer: Once the GPA holder is present and he has registered GPA then you need not be present. Only a registered GPA allows a sale clause.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

Sale deed and agreement are different agreement is agreeing to sale in future and deed is when sale is complete.

Transfer of property as GPA as instrument is not valid but transferring property by GPA who makes valid sale deed on behalf principle is valid.

For example if you give irrevocable gpa to buyer directly that is not valid but if you give gpa to FIL to make a sale deed with buyer is valid.

Yes it is legal GPA to father in law and presence of GPA is required while registration before sub registrar.

Shubham Jhajharia
Advocate, Ahmedabad
25462 Answers
110 Consultations

5.0 on 5.0

Hello,

Please find my comments below on relevant excerpts:

" Secondly, after the recent judgment of Supteme Court GPA or POA can’t be used for property transaction.

This SC judgment actually is to avoid the practice of people evading registration fees by transferring properties via POA or GPA only. This judgement does not restrict to sell a property through POA holder by executing a properly registered Sale Deed. However, A property transaction through Power of Attorney executed by NRI calls for extra checks/scrutiny. A sale deed can be declared NULL and VOID because of a small mistake or error in the execution of Power of Attorney by NRI.

"Thirdly, but if it is executed in the favour of a close relative like father mother specially then it may be acceptable before the registrar as well as in the eyes of court of law."

- A properly executed POA is valid and recognized.

"do we or our GPA holder need to present, when actual registration of the flat happens ?"

No, you need not be present.

Avish Sharma
Advocate, New Delhi
13 Answers

5.0 on 5.0

Supreme court has recently barred sale of immovable property through GPA if your case comes under the said judgement then you can't sell the same through GPA.

Prashant Nayak
Advocate, Mumbai
21712 Answers
45 Consultations

4.4 on 5.0

1) sale deed means transfer agreement

2) there is no bar for execution of POA in favour of close relatives . If you are unable to come to India you can execute POA in favour of family member fir execution of sale deed

3) your presence is not necessary at time of registration of flat if POA has been executed. It should be attested before Indian consulate

Ajay Sethi
Advocate, Mumbai
78415 Answers
4703 Consultations

5.0 on 5.0

1. The procedure is correct

2. You and your wife will be the vendors, the builder will be confirming party and your buyer will be the purchaser in the agreement for sale by which you will sell the flat

3. The buyer will pay consideration to you under the above agreement and also transfer fee of builder

4. You and your wife can sign the agreement before the public notary in US or Indian consulate or embassy

5. You can then send the signed agreement to your family member in India

6. You can execute a special power of attorney in favour of your indian relative for registering the agreement signed by you and your wife

7. Power of attorney has to be compulsorily signed before consulate or embassy

8. Send this poa along with agreement to your indian relative and he can comply with registration formalities on your behalf using your poa

9. Stamp duty will be paid on agreement after it arrives in India within the stipulated period prescribed by state law

Yusuf Rampurawala
Advocate, Mumbai
5603 Answers
34 Consultations

5.0 on 5.0

1. Yes, the buyer will give you every penny for the flat and to the developer.

2. However since you have not completed the sale as yet in your name , making tripartite agreement taking the developer along is essential.

3. in that agreement your POA holder can represent you and your wife.

4. The supreme court decision does not apply when you give GPA/POA to your near relative.

5. When registration will be done the GPA holder needs to be present, not you.

Devajyoti Barman
Advocate, Kolkata
21347 Answers
302 Consultations

5.0 on 5.0

1. There are few more steps to be taken in this regard.

2. In the tripartite agreement to be signed by the builder, the buyer and also your GPA holder, it will be stated that the builder will cancel the allotment letter for the flat which was once issued in your favout and reissue it in favour of the buyer once you pay the transfer fee after getting full payment from the buyer.

3.He then shall have to inform the buyer the amount still pending in your name and once you pay the transfer amount, the builder will issue the allotment letter in favour of the buyer and thus the buyer will step[ in to your shoes as the original buyer of the property.

4. Therafter the builder will register the sale deed of the flat in favour of the buyer.

Krishna Kishore Ganguly
Advocate, Kolkata
24563 Answers
696 Consultations

5.0 on 5.0

1., The property is not yet owned by yopu for want of registration for which you can not register any sale deed. You shall have to register the tripartite agreement wherein all the terms shall be mentioned including your receipt of the consideration.

2. You are not using the GPA for selling your property. You are entering in to a tripartite agreement for getting your flat re-allotted in favour of the buyer after cancelling the allotment letter in your name.

Krishna Kishore Ganguly
Advocate, Kolkata
24563 Answers
696 Consultations

5.0 on 5.0

It depends on how you all agree among yourselves about the payment for transfer of this proeprty.

Since you have not taken possession of the property, a tripartite agreement is the best option for payment details and other issues in this regard.

No doubt the tripartite agreement should be a rgistered document to make it legally valid.

T Kalaiselvan
Advocate, Vellore
68431 Answers
918 Consultations

5.0 on 5.0

Ideally we should have flown to for signing the transfer agreement but.In current scenario, we don't want to risking VISA issues.

" Sale deed" here means the transfer agreement right ?

Sale deed is not transfer of agreement rights, it is a conveyance deed between the vendor and the purchaser.

" Secondly, after the recent judgment of Supteme Court GPA or POA can’t be used for property transaction.

The supreme court judgment has been misinterpreted. It will not be applicable to your situation.

Thirdly, but if it is executed in the favour of a close relative like father mother specially then it may be acceptable before the registrar as well as in the eyes of court of law."

me and wife can give GPA to my wife's father right? is it legal.

Yes it is a legally valid document.

do we or our GPA holder need to present, when actual registration of the flat happens ?

Your presence may not be necessary, the power agent himself can sign on behalf of you as your representative

T Kalaiselvan
Advocate, Vellore
68431 Answers
918 Consultations

5.0 on 5.0

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