Common passage issue - single owner
I am looking to buy a property but here is the issue I am facing. Let me first describe about the property in detail:
Vacant Land - rectangle, 5000 sqft. facing 40sqft road
1) Original owners A and B sell the property to a Couple (husband & wife)
2000 sqft to Husband , 2000 sqft to Wife and keep 1000sqft as common passage to those properties (as given in the document) Note: as per the document the common passage is not sold to them but they have right to use. In the rectangle plot, this common passage runs from the road to the end of the plot.
2) Now this Couple (Husband & Wife) Sell the whole property to another person Mr. X, In this they include common passage, so they sell it as 5000 sqft to that buyer. They did not mention anything about the common passage in this sale deed.
I am now looking to purchase the propertly from Mr.X, the whole 5000 sqft. Now will this common passage create any issue for me in the future ? Can the original owner claim rights ? Will the common passage still makes sense even if there is only 1 owner that can use that passage ? Kindly help
Asked 2 years ago in Property Law from Coimbatore, Tamil Nadu
1) you would be owner of only 4000 square feet
2) yiu only have right of passage for the 1000 square feet
3) the ownership rights vests with the original owner
4)the couple could not have sold the common passage to X
Hi, Husband and wife are not the owner of the common passage how they can sold the same to X.
2. So X has not get the better title of common passage therefore he is not the absolute owner of the property to an extent of common passage so he has no right to sold the common passage to you.
Once a property was sold to the extent it was intended to be sold, the sale will confine to that extent alone and any addition to the original sale deed without executing a rectification deed will render the subsequent sale deed itself as invalid in the eyes of law. A vendor can sell the property only if he/she have marketable title to the (entire) properties. In this case your vendor's vendor fraudulently added extra extent of property which neither found a mention in the sale deed in their possession nor it was actually bought by them, hence their sale deed itself may invalid in the eyes of law, therefore all the subsequent sale deed shall stand invalid and this will create problem only when the owner raises this issue before a competent court of law.
Therefore in my opinion, it is not advisable to purchase the landed property with controversies in built in it.
May be it can create issues .The wife and husband can sold only the exact area which they got from original owner. Here the common area is not sold by the original owner and it is kept common.
If other persons has not used this passage area (even the original owner also ) then may not get any worry in future. Legally you can get absolute ownership is only 4000 sq.ft right as per the prior deeds
1. Common passage, of which title did not pass to the couple, could not have been sold by them. The sale of common passage is illegal.
2. It is basic law that no one can pass a title better than his own title. So do not buy the common passage if you do not wish to be entangled in litigation.
Thanks for your prompt answers.
I would like to add some more details.
The owners of the site A and B had actually got the land from their grandmother by her will - which stated that the 5000 sq. ft site had to be shared equally among A and B.
So, after the grandmother's death , the will became operative and the site was partitioned between A and B. It was partitioned such that front half belonged to A (1881 sq ft) and rear half belonged to B(1881 sq. ft), and there was a common passage allotted to both of them with equal rights.( stating they completely have possession rights but to be used as common passage).
When A and B , in turn sold their share of property to 2 persons( husbAnd and wife ), the document written stated only that their share (1881 sq ft of land ) was sold and the purchasers had easementary rights over the common passage.
There was only one registered document for this site (5000 sq ft) which was handed over after this sale deed to the purchasers. Since they do not have any document with them w.r.to this property, can they still claim over the common passage ?
Asked 2 years ago
1) it is necessary to peruse documents cited by you to advice .
2) from the clarification stated by you it appears that A and B were absolute owners of the 5000 square feet plot
3)the sellers would not have ownership rights on the common passage as entire plot has been sold by A and B
If the seller have no property left there, how can use the common area.What the extent kept in their possession by getting the will deed that can only transfer to others .they sold that much area and the common area is still their name.If it is mention in new deed executed infavor of neww purchaser for usage of new purchaser then he got the right of way for his ingress and egress
Though A and B have partitioned the property between them as per the recital of the Will, the common passage property will remain commonly owned by the respective owners and any subsequent buyer will also inherit the rights based on the old original documents which will continue for ever. Therefore common passage will remain common and nobody can infringe or encroach the common property, it will be an illegal act.
So if the owner now sells the property to you he can sell only what was sold to him. The property over which he has easementary rights cannot be sold.