• Buying a resale flat in an under construction building

I am planning to purchase a resale flat in an under construction building. The project has been delayed for sometime (Covid also one part of the delay). The end of the year is a 3rd RERA extension that the builder has got. However it still looks far from getting completed and may get delayed by a few months more. 
I have paid a token to the investor for the flat, but now the investor doesn’t want to get into a Tripartite deal cause he has to pay GST again for it. 
The problem with paying an investor is the bank disperses all the funds and doesn’t hold back. In that case I can’t even hold back cash till I get possession of the flat. Please suggest
Asked 16 days ago in Property Law
Religion: Christian

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6 Answers

Don’t purchase the flat 

 

there is no guarantee that possession would be delivered within stipulated period 

 

further since all funds have been disbursed by bank you are stuck with the project 

 

in addition builder would charge high transfer charges 

Ajay Sethi
Advocate, Mumbai
95203 Answers
7607 Consultations

5.0 on 5.0

It is not advisable to proceed without a tripartite agreement. 

The bank will not disburse loan without any agreement. 

The GST amount paid by the original buyer can be paid by you because GST is payable only once and not by subsequent buyer too.

T Kalaiselvan
Advocate, Vellore
85404 Answers
2236 Consultations

5.0 on 5.0

Discuss with your bank if they can structure the loan disbursement in tranches based on construction progress or possession. This would ensure funds are held back until you get possession.

Rajveer Singh
Advocate, Ranchi
24 Answers

4.9 on 5.0

Dear Client,

Marketing an apartment for resale in a building under construction that continues to have construction delays was undoubtedly fraught with some difficulties, particularly in relation to the concerns regarding the inability of an investor reluctant to sign the Tripartite Agreement. The primary concern for consideration here is that your interests are safeguarded, especially because this project has been experiencing some setbacks, and the investor's decision to back out and opt not to be part of the Tripartite Agreement makes the transaction more challenging.

A potential solution is to work out with the investor that an initial payment will be made contingent on the agreed-upon amount of future revenue. In a spirit of negotiation, you could suggest a plan through which a part of the payment is made before the launch of the project and the rest of the amount is paid and retained in trust until ownership is handed over. This also ensures that the investor gets at least some funds upon the completion of the first part, and you are also shielded in case there are likely to be further delays. This arrangement would also call for a precise legal framework that would lay down various provisions in a bid to unlock the remaining balance. No doubt it is wise to consult a lawyer to draw up or at least to inspect this agreement in order to make sure that all such clauses are cogent and the interests of the parties are shielded.

The other thing that can be done is to talk with the bank of your choice and possibly come to an agreement on how the loan is paid out in phases based on project progress or possession. Banks generally release funds with respect to construction work completed, and you can negotiate a specific payment schedule you feel would safeguard a part of the funds until you take possession. This might entail explanations with the bank and, with the help of records of the current situation and the manner in which the progress of the project is being slowed, getting consent.

If the investor remains inflexible and the bank cannot accommodate your request for a conditional disbursement plan, you may need to reconsider the purchase. Paying the full amount without any assurance of possession exposes you to significant risks, especially in a delayed project. The investor's reluctance to pay GST again suggests they are looking to minimise their costs at your expense, which could indicate potential red flags in the transaction.

It's essential to assess the potential for further delays and the overall credibility of the builder. If the delays seem likely to extend beyond the current RERA extension and there is no clear timeline for completion, it might be prudent to explore other options.

Anik Miu
Advocate, Bangalore
9191 Answers
111 Consultations

4.7 on 5.0

- As per the RERA Act, if the builder is delaying in construction & delay in possession, then the builder will have to pay 10% interest on the value of the property for delayed possession of flats.

- Hence, if builder fails to delivers the possession of the flat to you on time, then you can cancel the agreement due to his fault and you are liable to get full refund of paid amount with 10 percent interest. 

- Further, if you get the possession of the said flat lately, then also you can claim 10% compensation from the builder. 

- How the bank sanctioned /disburse the loan in the absence of a Tripartite agreement. 

Mohammed Shahzad
Advocate, Delhi
13529 Answers
201 Consultations

5.0 on 5.0

It would be a legal hassle if your investor does not want to enter into a Tripartite Agreement keeping the builder in a loop about about this transaction, otherwise the Builder would not recognize your transaction with the investor and would not hand over the physical possession to you. So its wise to keep everything transparent and builder well informed about your transaction. In case that is not done then take NOC from the Builder for First Transaction Free so that the Builder does not put additional cost for such Transfer. Make all payments to the Builder.  

Robert D Rozario
Advocate, Mumbai
30 Answers

5.0 on 5.0

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