• Purchasing a resale flat in under construction apartment

I am purchasing an under construction flat in Bhopura, Ghaziabad from a person who had booked it two years back through a real estate agent. The possession of the flat is due in coming 3-4 months.The seller claims to have paid 90% of the price of the flat. The agent has provided me the copy of Buyer Builder Agreement. How do I check

1. The person claiming to be owner is actual owner.
2. The flat is not mortgaged against any loan.
3. There are no dues/penalties by the builder on the chosen property.
4. Anything else which needs to be checked in buying such a flat.
Asked 1 year ago in Property Law from Ghaziabad, Uttar Pradesh
Religion: Hindu
1) ask for inspection of original sale deed 

2) if property is mortgaged then seller won't have originals 

3) name of seller would be reflected in sale deed if he is purchaser of flat 

4) builder will furnish no due certificate regarding no out standings are payable 



5) check reputation of the builder before purchase of flat 
Ajay Sethi
Advocate, Mumbai
23389 Answers
1229 Consultations
5.0 on 5.0
1. Verify from the builder as to who is the applicant and who paid the 90% consideration. If there is going to be  re-allotment,the builder is required to inform you his willingness for the  said re-allotment and the terms for it. without the builder's written confirmation, you should not act in this regard,

2. Verify from the builder whether he has received any payment from any Bank directly or not. If yes, then it is obvious that he has taken loan from the Bank duly mortgaging the flat. However, you should take confirmation from the builder also that  he has not given consent for any such mortgage and the said flat has not been mortgaged,

3. The builder shall have to confirm you that thre is no dues in the name of the said allottee,

4. If the builder is a small entrepreneur   then he will agree for entering in to a tripartite agreement with you and the allottee. If he is a big one, then he my not agree to be a  party to the agreement but will certainly agree to give you answers to all your queries in details after which you can enter in to an agreement with the allottee and submit it to the builder for re-allotment of theflat in your name.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1) since you are the purchaser you can ask seller to produce original sale deed . you can take inspection 

2) first be satisfied that seller has clear title to the property . dont pay 10%of sale price now 

3) only if title is clear and marketable should you pay 10 per cent 

4) in many case seller refuses to refund 10 per cent committed price if purchaser backs out of the deal if title is not clear and marketable 

5) if on other hand seller agrees to refund 10 per cent paid by you in case title is not clear and marketable you can enter into agreement for sale and pay 10 per cent as committed price 

6) agreement for sale would be binding upon both the parties and in case of breach of contract by seller you can move court for necessary reliefs 

7) get agreement drafted by local lawyer 

8) not necessary to register agreement for sale . 

9) sale deed would require registration 
Ajay Sethi
Advocate, Mumbai
23389 Answers
1229 Consultations
5.0 on 5.0
1. what it means to get the original sale deed inspected and who is authorized person for this inspection. 
You  can get it inspected through a lawyer. 


2. The agent is telling that any NOC or No Dues certificate will be issued by the builder only when I go for an "agreement to sell" with the seller and at this stage, I need to pay 10% of the committed price. Will this "agreement to sell(AGS)" help in any legal remedy if the seller flees away with the advance? What things must be carefully drafted in AGS? Do I need to get AGS registered in Ghaziabad?

How did you come to know about the sale agreement?, have you verified any receipt for the payment made by the seller to the builder?  Are they appear to be reliable?  Did you approach the builder for this?  What is the builder opining about proposed sale transaction between you and the vendor?

This needs a personal opinion by a lawyer who will ascertain the facts by verifying and scrutinising the entire documents and relevant papers, hence instead of just depending on the online advises which may sometimes misguide you, better consult a local lawyer in person along with all the papers and get his opinion in writing so that you can be doubly sure about the genuineness.
T Kalaiselvan
Advocate, Vellore
14170 Answers
128 Consultations
5.0 on 5.0
Approach the builder for verification of booking of the flat and payments. Check there is any clause for re-allotment in Builder and seller agreement. Check there is any sale deed executed in favour of seller. If the sale deed is created in favour of seller then he has every right to sell the flat. 

Ask the seller to provide all the documents related to Flat deal for verification.If need any payment to seller or builder then do it with cheque or RTGS transfer.

Ajay N S
Advocate, Ernakulam
1918 Answers
19 Consultations
5.0 on 5.0
1)verify that title of seller is clear and marketable before making any Payment 

2) builder won't give NOC unless transfer charges are paid to him 

3) the agreement to sale can contain a clause that in case seller fails to obtain NOC advance payment of 10 per cent would be refunded to the buyer 
Ajay Sethi
Advocate, Mumbai
23389 Answers
1229 Consultations
5.0 on 5.0
A sale agreement before knowing the correct  details of the property intended  to  purchase is a foolish act.  
The Lawyer whom you consulted is right in his opinion to obtain NOC from  builder before entering into a sale agreement with the vendor.
If you are uncertain  about the genuineness of the property, then better keep away or comply with the legal  requirement before buying it. 
T Kalaiselvan
Advocate, Vellore
14170 Answers
128 Consultations
5.0 on 5.0
1. The flat is still under construction and its sale deed  has not yet been registered. So, there is no question of inspecting the original deed,

2. No. The procedure is that the seller shall write the builder under copy to you, rewquesting the builder to issue NOC and No Due Certificate in connection with his selling the said flat to you,

3. Based on that letter or email, the builder shoud issue the said certificates to enable you to enter in to he agreement for sale after paying the commitment price,

4. After that you are required to pay the balance amount and on receipt of the same the seller will issue consent letter to the builder for his replacing the name of the allottee  in your favour.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. There is no reason for the seller to demand an amount before he can produce an NOC from the builder,

2. If the builder refuses to issue NOC, you shall have to run after your money paid to the builder,

3. Ask for the NOC first and sign the agreement after being confirmed that the sale deed of the under construction flat will be executed and registered by the builder after the construction is over.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
Are you  worried about the vendor's problem or  your own?
What is your concern about the losses of seller
As a buyer you have to have a proper purchase and  your concern is bout purchasing the property and not to solve the vendor's problem. 
If the vendor is not able to comply with the proper  procedure for selling his property, you may better avoid buying such properties.
T Kalaiselvan
Advocate, Vellore
14170 Answers
128 Consultations
5.0 on 5.0
1) the seller is absolutely correct that buyer may back out 

2) hence I had suggested to incorporate clause in agreement for sale for refund of 10 per cent paid as advance in case seller fails to obtain NOC from builder and no dues certificate 
Ajay Sethi
Advocate, Mumbai
23389 Answers
1229 Consultations
5.0 on 5.0
1.Usually, the builder informs the dues and states that after the said dues are cleared, has no objection in selling/re-allotting the said flat,

2.After getting the said letter issued to the seller u/c to you ( if you are kept in the loop by the seller), the seller should clear the dues and collect fresh NOC from the builder,

3. After completion of this process only, you should enter in to an agreement with the seller by paying advance.
Krishna Kishore Ganguly
Advocate, Kolkata
12143 Answers
233 Consultations
5.0 on 5.0
1. The only way to carry out due diligence is by engaging a lawyer for the purpose who should be supplied the copies of the documents which form an integral part of the chain of title.

2. It should also be ascertained that the property which you intend to purchase is not the subject matter of a dispute in any court of law. 

Ashish Davessar
Advocate, Jaipur
18261 Answers
450 Consultations
5.0 on 5.0

1. The authorized person to inspect the sale deed is the prospective buyer or his lawyer. 

2. Once the ATS is entered into it will bind both the seller and buyer. It can be enforced against him if he doe snot honour his promise. 

Ashish Davessar
Advocate, Jaipur
18261 Answers
450 Consultations
5.0 on 5.0
1. Legally speaking, it is not a wise idea to purchase a property the title of which has not completely transferred to the seller, or the possession of which has not been delivered to the him as it runs into multifarious complex legal hassles. Be that as it may, if you want to purchase the property the seller should be asked to obtain a NOC from the builder. 

2. The seller's concerns are also valid as he will have to run to court to sue you for breach of contract if subsequently you back out of the deal.
Ashish Davessar
Advocate, Jaipur
18261 Answers
450 Consultations
5.0 on 5.0

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