• Buying an unregistered flat in a co-operative housing society from a shareholder of the society.

I am really interested in buying a flat from a member in a cooperative housing society. The seller (the current member of the society) had bought the flat from an earlier member( already the 3rd transferred owner of the share certificate) in 2001 and has then been since residing in the premises for some time. 

The seller ( the 4th transferred owner of the share certificate) to me has all entitlement and share certificates, along with mutation and cleared tax receipts under his wife's name, but doesn't have the property registered, (and also stamp duty paid) to get the apartment registered under his wife's name. Although he has bought the flat by paying the society membership fees and transferring the share certificate in her wife's name, but hasn't registered the flat.

Now based on the info above, he was expecting to transfer the ownership of the flat in the same fashion as he got it from his seller, but we were told by a psu bank while getting a loan against the property that without the original deed against the property the current owner has rights to stay and enjoy the facilities of the society but is not allowed to sell the property. 

We need some advice in this scenario to find a way out of this, The seller is willing to proceed to register the flat but the society board members are also unaware of the current rules cited by the bank.
Asked 1 month ago in Property Law
Religion: Hindu

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8 Answers

Registered sale deed is necessary to confer clear and marketable title to property 

 

2) earlier owner of flat has to execute deed of confirmation in favour of current owner that flat has been sold to her on x date 

 

3) deed of confirmation should be duly stamped and registered 

Ajay Sethi
Advocate, Mumbai
81794 Answers
5120 Consultations

5.0 on 5.0

Don’t purchase the flat as seller does not have clear and marketable title to property 

 

if earlier sellers are not available for execution of deed of confirmation don’t purchase the flat 

 

 

Ajay Sethi
Advocate, Mumbai
81794 Answers
5120 Consultations

5.0 on 5.0

If the current holder of share certificate transfers the property that will serve the legal purpose. There is no need to go back to your seller’s seller.  

Ravi Shinde
Advocate, Hyderabad
642 Answers
7 Consultations

5.0 on 5.0

Hi,  Without registered document property will not be transferred from one person to another.  If the original owner will execute the Sale Deed then only it is Valid.

Pradeep Bharathipura
Advocate, Bangalore
5020 Answers
265 Consultations

4.5 on 5.0

Without having a registered sale deed on his/her name, the seller cannot claim title to the property, even though the share certificate of the housing society has been transferred to his/her name.

The share certificate is not a title document.

In this case it appears that none of the previous owners have got the property registered on their names before they sold the same to the subsequent buyers. 

Now it becomes pertinent that all the previous owners should have registered the property on their names by a registered sale deed in order to make the current owner to sell the property in favor of the prospective buyer now.

Therefore it is not only illegal but also invalid to buy the property on the basis of transfer of share certificate.

You may please be aware that the mutation records and the society share certificate will not make the person  an absolute owner  of the property.

He or she should have a registered sale deed on his or her name to establish a clear and marketable title in order to execute a registered sale deed in favor of the prospective buyer.

You are advised to keep away from buying such defective/disputed properties. . 

T Kalaiselvan
Advocate, Vellore
71857 Answers
1057 Consultations

5.0 on 5.0

If the previous owners are not traceable then it is not your problem, it is the problem of the current seller to locate them and get the registered sale deeds executed on their names and on the names of their subsequent buyers.

You cannot buy a property from a person who do not own the property.

It would be illegal and invalid on the part of the seller to sell the property in this fashion and buying such property will become a permanent headache to you.

In fact buying a property without a registered sale deed or having a defective title  to the seller, cannot   make you an absolute owner with clear and marketable title to the property. 

Hence you were advised to not to buy this property which is disputable or having no or defective title to the seller.

The cooperative housing society had already transferred the property to the allottee who was the first owner. He subsequently failed to get the property registered  on his name to avoid stamp duty.

The subsequent buyer also did not bother about the registered deed on his name in order to avoid payment of stamp duty, this followed till the current owner, however at one stage this illegal practice will come to an end.

Therefore you are advised to not to buy the property till the title of all the sellers are confirmed from the beginning till date.  

T Kalaiselvan
Advocate, Vellore
71857 Answers
1057 Consultations

5.0 on 5.0

- As per Transfer of Property Act, without registration, a buyer has no legal right over the property so, one cannot sell it to anyone. 

- Further, a society share certificate is not a title document , and even for issuing a share certificate , a conveyance deed is mandatory. 

- You can registered a deed of confirmation from the seller , but even he needs the same from his last seller. 

Mohammed Shahzad
Advocate, Delhi
6544 Answers
69 Consultations

5.0 on 5.0

Dear sir,

it is advisable to get the registered property. you can get another property that is registered. spending your hard-earned money on something intentionally which might land you in trouble in the coming future is not something that I will recommend. 

if you still want to buy the property, you can but as you saw that the bank wanted the documents and so in the coming future, for any financial loan/registry/ selling/ transfer of property, etc, you will require full registered documents. so, if you want to purchase another land, go ahead with it and leave this disputed area.

  • For more assistance, you can book a consultation with me.
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Anik Miu
Advocate, Bangalore
926 Answers
7 Consultations

5.0 on 5.0

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