• Builder handing over apartment with delay of 2 yrs

Builder is going to handover the apartment soon located in Bengaluru but after the delay of 2 years.This project is not under RERA as per builder and RERA website. 

Key highlights below:
1. Initial payment done during October 2012 and Construction started in Dec 2013 against the promise of Mar 2013.
2. June 2016 (2.5 yrs) should have been handed over with inclusion of 6 months grace period.
3. 95% Paymnt done in Dec 2015.
4. OC not received as off 3rd Sep 2018.(Forcing all owners to do registration and occupy flat without OC) for Which 25 owners out of 290 flats have already started living there as not able to burden with both rental and EMI.
Common amenities not yet started which they are planning to start after getting OC.They claim it will be completed in 3 months.
5. Registration of my flat is planned by 7th Sep 2018. and handover/possession on the same day.
6. 60% of flats got registered already.
7.This is not coming under RERA project.
8. Construction agreement clearly stated about the penalty amount of Rs.5 per sqft per month by builder if it is delayed after 24 months + 6 months grace period.

My Queries:
1. Can i issue legal notice to builder AFTER completion of registration/possession for delay of 2 yrs in handover of flat OR Should I issue BEFORE registration itself. Please note OC is not yet received.And builder has strongly conveyed to us verbally that they will not pay any penalty amount to us for delayed handover and reasons quoting as Demonetisation, GST, Jayalalitha death etc. and also hinted that if customers want to go legal they will deal with it.
2. What may be the objective of builder by forcing everyone to do registration without Receipt of OC?
3. Should i wait to issue legal notice after the completion of all common amenities and forming of association?
Many owners feel that we will issue legal for the delay after formation of association. Is it true that winning the case is more stronger with applying as an association in place of individuals.
4. If i issue legal notice now Will it affect the construction completion of common amenities and may be put under HOLD.
5. As i work abroad and I am on vacation, i plan to complete the registration now itself (60% owners already registered and couple of flats were already rented out after interior works) WITHOUT OC because OC is expected in 1-2 weeks from 3rd Sep 2018. Just for that purpose i cant come to india later. Will this issue favour the builder in winning case against penalty amount by them.
Asked 4 years ago in Property Law
Religion: Hindu

First answer received in 30 minutes.

Lawyers are available now to answer your questions.

14 Answers

1)If possession is not delivered on time, a purchaser can send a notice to the builder, claiming the refund of the amounts paid along with interest and/or damages. “The buyer can also file a consumer complaint for ‘deficiency in service’ as defined under the Consumer Protection Act, 1986 against the builder.

2)There are several documents which are required during the purchase of a property but OC is a very important document which must be taken. Buyers have the right to take a legal action if builder do not give them the same. “If the builer sends a possession letter without OC, the buyer should resist such possession and refuse to pay the principal or the so-called interest claimed. In fact, if the builder breaches timelines, buyers can take necessary recourse from the law and approach the courts for relief. In case the developer forces or threatens the buyer to take possession without OC or claim interest, the buyer can draw the attention of RERA and/or Consumer Court, as may be appropriate for taking action against such errant builder.

Mohammed Mujeeb
Advocate, Hyderabad
19031 Answers
32 Consultations

4.5 on 5.0

1) There are "N" numbers of issue with builder at time of the completion of the project.

here you have pointed your points his few works may be not completed it that's why he has not got OC.

2) You better take possession and make registration of the flat and don't go for residence purpose just lock it.

3) Make complaint in the RERA office and consumer forum regarding this that you have to received amenities and OC completed yet from builder.

Ganesh Kadam
Advocate, Pune
12338 Answers
191 Consultations

4.9 on 5.0

1. Sir a notice can be issued to the builder any time prior to registration or after that and the reason stated by builder are not tenable under the law give a notice to the builder and seek compensation for delay, ask for OC and mental harassment and rent expenses occurred for the deficiency in services and delay.

2. Once the flat is registered on name of the buyer the builder will try to escape is liability for OC though he is liable as the owner after getting flat will be least interested in taking legal action.

3. No there shall be delay then you can give notice now only asking for delay compensation and OC as promised.

Further delay on providing the common amenities too,

4. No construction wont be stayed.

5. No since there is a huge delay you shall receive the compensation after notice if the builder refuses for compensation and the OC file a consumer complaint before the jurisdictional forum for deficiency of the services and delay the consumer court shall decide the case.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

1) registration of sale deed should be done at the earliest

2) issue legal notice later

3) don’t wait for forming of association

4) you canclaim penalty amount after registration of sale deed

Ajay Sethi
Advocate, Mumbai
87975 Answers
6207 Consultations

5.0 on 5.0

Dear Sir,

My answers are as follows:

1. Can i issue legal notice to builder AFTER completion of registration/possession for delay of 2 yrs in handover of flat OR Should I issue BEFORE registration itself. Please note OC is not yet received.And builder has strongly conveyed to us verbally that they will not pay any penalty amount to us for delayed handover and reasons quoting as Demonetisation, GST, Jayalalitha death etc. and also hinted that if customers want to go legal they will deal with it.

And: Legal Notice can be issued only after you get into possession and registration is done. First come into safer zone then start fighting. Be aware of developers they are afraid of litigations since they lose reputation and business. I will prepare a strong legal notice.

2. What may be the objective of builder by forcing everyone to do registration without Receipt of OC?

Ans: Let it be on record, we can take advantage of the same later. See details of OC as follows.

3. Should i wait to issue legal notice after the completion of all common amenities and forming of association?

Many owners feel that we will issue legal for the delay after formation of association. Is it true that winning the case is more stronger with applying as an association in place of individuals.

Ans: Fight individually. Formation Association takes years together.

3. If i issue legal notice now Will it affect the construction completion of common amenities and may be put under HOLD.

Ans: Yes, just keep silent and even you should not disclose anything before3 other purchasers.

4. As i work abroad and I am on vacation, i plan to complete the registration now itself (60% owners already registered and couple of flats were already rented out after interior works) WITHOUT OC because OC is expected in 1-2 weeks from 3rd Sep 2018. Just for that purpose i cant come to india later. Will this issue favour the builder in winning case against penalty amount by them.

Ans: your presence is not necessary for issuing legal notice and even filing suit for damages.

===================================================================

PURCHASE APARTMENT WITHOUT O.C

Dear Sir,

You may purchase it, because of following reasons, there will be no risk. Believe me.

According to reliable sources, about 10,000 residential buildings in the city, after the Karnataka government introduced the Transfer of Development Rights (TDR) in 2005, do not have OCs. Among these, 50 per cent are apartments. Another alarming fact is that only 97 high-rise buildings have obtained OCs between 2009 and 2014. As per this statistic, hundreds of buildings in the city are being occupied without being issued an OC. However, what is startling is that most of this is done with the knowledge of the BBMP which collects property tax from such property owners inspite of them not possessing an OC. This amounts to a direct violation of Section 5.7 of the Bangalore Municipal Building Bye-law of 2003.

Living in a flat without occupancy certificate? You may lose power

BENGALURU: Rajini Chengappa, 58, and husband Vivek, 65, bought a flat in Kodigehalli, off Hebbal, in 2012. They moved into the sixth-floor flat a year later.

The builder, Vivek says, had promised them an occupancy certificate (OC), but it has remained a promise. The Chengappas are not alone in their plight. Thousands of homeowners are facing a similar quandary. Nearly 10,000 buildings in Bengaluru, including 50% of apartments built after the Karnataka government introduced transfer of development rights (TDR) in the city in 2005, do not have OCs, say official sources.

In many cases, though the building plans are approved, OCs are denied due to other violations. Obtaining an OC is a requirement under the Karnataka Apartment Ownership Act, 1972. The law says one cannot legally move into a building unless the developer gets an occupancy certificate from the BBMP or BDA. The corporation can ask apartment owners to leave such illegally occupied flats or impose heavy penalties.

Replying to a question at the recent Belagavi assembly session, chief minister Siddaramaiah had said only 97 highrises in Bengaluru have obtained OCs between 2009 and 2014, while promising stern action against builders violating construction norms.

Energy minister DK Shiva Kumar echoed similar views and directed officials to get tough with apartmnt builders, by disconnecting power.

But it's not as easy as it seems, considering the quantum of violations, nexus between civic officials and builders and a lack of stringent laws. Many errant builders and developers have, over the years, gone scot-free, say those familiar with the working of the sector.

There are several examples of builders disappearing without giving OCs and legal water connections to housing complexes. Apprehensive of losing their homes, buyers who've invested hard-earned money move into their flats and make do with water from pumps and water tankers.

BOOM FUELLED GRAFT

So why are such illegal buildings mushrooming in Bengaluru? Urban expert V Ravichander attributes it to a breakdown of the system and lack of transparency. "There was a good system in place a decade ago. Following a real estate boom, unscrupulous builders began construction without approved plans, in an effort to increase profits. This not only broke down the system, but also fuelled corruption."

The bigger problem, says RTI activist BM Shivakumar, is that in the absence of well laid-down regulations, a person can get into the real estate business and start construction of a project without approvals or environmental clearances. "Why blame private builders? Many BDA flats owners have not got OCs after due to failure to obtain environmental clearance,'' he alleged. Some experts and activists, however, expect such malpractices will be curtailed after the Real Estate (Regulation and Development) Bill 2013, is implemented. They believe it will rein in the strong builder lobby, even if it cannot control it completely.

Ravichander favours a retrospective and comprehensive policy to regularize buildings without OCs.

Architect G Ramesh says occupants must be allowed to approach the BBMP and BDA and apply for OCs after paying a certain compensation. The corporation must facilitate the process, he added.

ISSUE NEEDS A RELOOK

This needs proper and scientific analysis. Members of the Association get occupancy certificates, as required by the Act. There are many outside the purview of the Association and perhaps many who haven't got the required certificate. The classification of highrise itself needs a complete relook. There are multiple agencies involved in sanctioning OCs, and perhaps the figure quoted is of a particular authority. Buildings that have OCs are many more, since it isn't possible to get various agency clearances and connections without OCs.

THE KARNATAKA MUNICIPAL CORPORATIONS ACT, 1976.

310. Completion certificate and permission to occupy or use.- (1) Every person shall, within one month after the completion of the erection of a building or the execution of any such work, deliver or send or cause to be delivered or sent to the Commissioner at his office notice in writing of such completion, accompanied by a certificate in the form prescribed in the byelaws signed and subscribed in the manner prescribed and shall give to the Commissioner all necessary facilities for the inspection of such buildings or of such work and shall apply for permission to occupy the building. 1 [(1A) Notwithstanding anything contained in sub-section (1), where permission is granted to any person for erection of a building having more 512 Municipal Corporations 1977: KAR. ACT 14] than one floor, such person shall, within one month after completion of execution of any of the floors of such building, deliver or send or cause to be delivered or sent to the Commissioner at his office, a notice in writing of such completion accompanied by a certificate in the form prescribed in the bye-laws, signed and subscribed in the manner prescribed and shall give to the Commissioner all necessary facilities for inspection of such floor of the building and may apply for permission to occupy such floor of the building.]1 1. Inserted by Act 32 of 1986 w.e.f. 17.6.1986. (2) No person shall occupy or permit to be occupied any such building, 1 [or part of the building]1 or use or permit to be used the building or part thereof affected by any work, until,- (a) permission has been received from the Commissioner in this behalf; or (b) the Commissioner has failed for 2 [thirty]2 days after receipt of the notice of completion to intimate his refusal of the said permission. 1. Inserted by Act 32 of 1986 w.e.f. 17.6.1986. 2. Substituted by Act 32 of 1986 w.e.f. 17.6.1986

A completion certification is an important and mandatory legal document attesting to the fact that a new building has been constructed and completed according to all the safety norms and regulations of the Buildings Act. A mandatory no-objection certificate issued by the local development and municipal authorities, the completion certificate of any building in Karnataka proves that the building has been approved by the Bangalore Development Authority, as per the stipulations in the Karnataka Town and Planning Act (1961) and the Bangalore Development Authority Act (1976).

Contents of a Completion Certificate

The certificate should contain all the required details, including the identification of the land, the location, if the building has met all the standards of safety and regulation, the distance from the road, distance from surrounding buildings, height and other criteria set by the Municipal authorities, along with the building plan. In short, the completion certificate guarantees that the building has not violated any rule in that locality. The Apartment Ownership Acts in various states in India make it compulsory for an owner or builder to possess a completion certificate, in order to avail of basic amenities like water and electricity.

In case of a builder or a developer, it is mandatory that they give a copy of the completion certificate to a person purchasing the house.

How is a completion certificate awarded?

Once the project is completed, the local authority inspects the premise on the basis of the building plan and awards the completion certificate, provided it is satisfied. The builder then applies to the departments yet again along with a copy of the completion certificate to get water, electricity connection and other basic amenities for the project.

Provisional and final completion certificates

A provisional or temporary completion is usually awarded to a builder if they want to hand over an apartment to residents but still have pending work to complete, such as finishing construction of amenities like the club house or painting. The provisional certificate expires after six months and should be followed by the builder applying for the final completion certificate.

Why is it important to have a final completion certificate?

A final completion certificate is awarded after the construction of a house is complete or if a group housing or apartment society is formed. It is a mandatory legal testimony to the fact that the builder has not violated any building rules and standards such as the floor area ratio limit, structural design, distance from road, quality of construction, distance from surrounding buildings, height of the building, number of floors and other criteria, along with an attested and approved building plan. This certificate is needed for an apartment or building to receive basic facilities such as electricity and water. In fact, the water rate is converted from non-domestic to domestic only after receiving a completion certificate. A buyer should not get possession of a house or building without a completion certificate, which also sets into motion other compulsories such as the payment of property tax and housing loans.

What if a completion certificate is not awarded?

If the developer has not been awarded a certificate of completion, buyers can either approach the local municipal authorities to award the completion certificate or can form a resident’s welfare association to speed up the process. In case new properties operate without completion certificates, residents are threatened to be evicted and the city engineering department will penalise the properties for not paying property tax.

Many people are unaware that a completion certificate is crucial to procure, before finishing payment of a final instalment in terms of purchasing a property. Builders tend to persuade hapless people into buying a property without possessing the appropriate legal documents. Hence, it is important to press for the builder to acquire a completion certificate, before releasing the final payment to the same. A completion certificate is also required to ensure that safety norms such as codes in the case of fires, accidents and other criteria are met.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

This is my response to you:

1. If CC (Completion Certificate) has not come then you can file a RERA complaint;

2. If CC has come then you will have to normal consumer court process;

3. Send a legal notice;

4. File a consumer complaint in the consumer court;

5. Seek immediate possession and also seek compensation for the mental and monetary loss suffered by you.

Gowaal Padavi
Advocate, Mumbai
1920 Answers
5 Consultations

5.0 on 5.0

1. if OC is not received then the project is compulsorily required to be registered with RERA

2. file a complaint with RERA against builder for non-registration of project, delay in handover of possession, claim penalty plus compensation for delayed possession, for not registering the agreement for sale even after receiving substantial money from buyer

3. reasons cited by the builder for delay are not 'force majeure' events. So his claim will fall flat before RERA

4. file RERA complaint immediately

5. do not accept possession of flat without OC under any circumstances

6. Also claim rent for the delayed period and EMI paid by you beyond the promised date of handover of possession

Yusuf Rampurawala
Advocate, Mumbai
6882 Answers
79 Consultations

5.0 on 5.0

1. Go ahead and send them a legal notice, it is your right to get the payment of delayed possession,

2. So that if any one files a case later they may say that they had no objection at the time of registration.

3. You may send the same now also.

4. They will not put the same under hold due to legal notice and if they do the same then file the case before the court.

5. You may get the registration done, but under protest.

Regards

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

1. You dont get frightened about the threats posed by the builder.

The demonetisation was in the month of Nov 2016 where the stipulated date of completion of construction with grace period was by June 2016, hence he cannot claim exemption under demonitisation, Jayalalitha has not taken his money and died, GST was introduced in the month of July 2017, hence he has got nothing to with all these reasons, you may issue a legal notice demanding penal interest for the period delay beyond the stipulated dated and also demand immediate registration and possession along with OC failing which you cn inform that he is liable for penal provisions as per law through consumer court etc.

Let him give any reply, you can handle him through consumer court.

2. Before that you issue him a legal notice placing all your demands and without OC you can indicate that cannot accept the possession, however you get the property registered on your name which will be an interim relief and guarantee of the property to you.

3. Many people will be having different opinions based on the vague information and non-maintainable suggestions, you may issue a legal notice now itself so that you dont have to claim excuse for a delayed action at a later stage.

4. What is your botheration about it because as it is he has not completed the construction so far.

5. Actually without getting OC one should not get the property registered and take possession, you may decide judiciously, dont be in a hurry based on somebody's inducement.

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

Lawyer can take care of these things and presence is not mandatory

Anilesh Tewari
Advocate, New Delhi
17940 Answers
377 Consultations

5.0 on 5.0

You can give power of attorney on your behalf to any of your relative in India to file a case in consumer court on your behalf.

Shubham Jhajharia
Advocate, Ahmedabad
25516 Answers
179 Consultations

5.0 on 5.0

You can issue a legal notice through a lawyer from any place.

You can file a consumer case through your lawyer even without coming to India, by signing the vakalatnama and getting it attested through a notary public of that country.

You may have to be present during deposing your side evidence

T Kalaiselvan
Advocate, Vellore
78133 Answers
1543 Consultations

5.0 on 5.0

Your personal presence is not necessary

Your advocate can draft complaint and send papers to you for your signature

You can execute POA in favour of family member

Ajay Sethi
Advocate, Mumbai
87975 Answers
6207 Consultations

5.0 on 5.0

Dear Sir,

Yes, you can. You have to send a Power of Attorney to any of your friend or advocate to conduct the case in India.

Kishan Dutt Kalaskar
Advocate, Bangalore
6050 Answers
381 Consultations

4.8 on 5.0

Ask a Lawyer

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