The UP Apartments, Act, 2010 says in Section 13 - Registration of Deed of Apartment: No promoter or an apartment owner shall transfer or hand over the possession of any apartment constructed after the commencement of this Act without executing an appropriate transfer deed and also getting it registered under the provisions of the Registration Act, 1908 and it shall also be incumbent for such promoter or apartment owner to enclose a true copy of the declaration made under section 12 to such deed of transfer. Builder in order to avoid payment of delay penalty to the home-buyer handed over unlawful possession (without Completion Certificate & Registry), in violation of section 13 of the UP Apartments Act, 2010. Facts: - In 2010 I booked a flat in NOIDA, parties entered into an Allotment letter, date of delivery was December 2012, because Builder didn't complete the project by Dec, 2012 the approvals from NOIDA Authority were denied. - Sub-lease deed was supposed to be entered into at the time of giving possession after getting approvals from Authority. - Builder in order to avoid payment of delay penalty to the home-buyer (having received 100% payment) handed over unlawful possession in 2015 (without Completion Certificate & Registry), in violation of section 13 of the UP Apartments Act, 2010. - Home-buyer demanded the execution and registry of the sub-lease deed which was denied. - Now even in 2019 the home-buyer is staying in the Flat, without registry and Builder is not doing the registry. - On top of it the Builder is demanding 18% interest on the delay in making payments to the builder by the Home-buyer. Questions: 1. Will the unlawful possession be taken as a valid possession by the Courts? 2. Can the Home-buyer return the flat and ask for a refund with interest 18% owing to 9 years of delay in handing over lawful possession? 3. Can the possession be considered as a lawful possession which is in violation of section 13 the UP Apartments, Act, 2010 ? Kindly guide. Thanks, Deesha
Your remedy is to approach RERA seek orders to direct builder to execute registered sale deed in your favour
2) seek compensation for delay in delivery of possession of flat
3) builder can deliver possession of flat only after issue of OC
4) after taking possession you cannot return possession of flat
1. No! It is a settled position of law that possession can’ be offered by any promoter in absence of completion certificate.
2. Not advisable. Better seek penalty from dec 2013 till the actual date of registry, for the delay on the part of the promoter
3 No. builder is at fault
All these options are available to you but you have to complaint against the Builder in rera for you approach the the state consumer Commission are the national consumer Commission as the case may be depending upon the value of the apartment registration can be done without the completion certificate and position can also be given in the ongoing projects however there is a penalty issue that you can claim and for any reason you have to go to the commission and claim the compensation for the delayed possession of the apartment
No it will not be a valid possession in the eyes of law.
Yes he can return the flat and seek compensation from consumer court for the same
Non registration of sale deed and not providing OC and CC are deficiency in service by builder. All buyers are entitle to compensation and direction to register sale deed. Penalty shal be borne by builder.
Possession is unlawful when is a without payment and agasint actual owner i.e. trespass. To secure payment made to builder, acceptance of possession was indispensable to save from heavy loses.
Since possession is accepted by buyers refund may not possible but can if builder failed to register sale deed and provide OC, CC, refund with interest and compensation.
In this case violation of section 13 is no valid title transferred yet, title still vest in builder.
Dear Sir,
You can claim compensation for delay in possession of flats even if the possession is delayed by a day. There is no specific delay or waiting period to file a case against delay in possession of flat in a consumer court, against the builder delaying possession of flat.
1. It will not be considered as valid possession.
2. Yes home buyer can file a suit in consumer forum for refund of money on ground of delay. But refund my be declined on ground of possession taken by homebuyer.
Hi,after the enactment of RERA act 2016, the cat has an overriding effect to all other governing laws and acts ..It is advisable to approach RERA forum , for seeking relief ..The RERA bench can impose penalty upon builder for not executing the sale deed and also can order refund if there was no proper approvals for the project
