Photo of Taher D Mandviwala

Taher D Mandviwala

Subscribe to Taher D Mandviwala's Posts

Partner in the Real Estate Practice at the Mumbai office of Cyril Amarchand Mangaldas. Taher is currently a part of the real estate practice group with a special emphasis on Core conveyancing and real estate transaction support work. He has worked on a wide range of matters relating to real estate (both residential and commercial) including investments, leasing, licensing, sale, acquisition, development and mortgaging of land and premises. He can be reached at taher.mandviwala@cyrilshroff.com

Relief to Affected Home Buyers For Delay In Possession

Delays in handing over the possession of flats has become a rampant practice in the Indian real estate industry, due to which numerous innocent home buyers are being penalised. With developers indulging in the delay tactics in handing over possession of flats, home buyers are not only left in the lurch, but are also being forced to pay ‘equated monthly instalments’ (“EMIs”) on home loans.  However, over the years various forums have come to the rescue of the flat buyers.…

Continue Reading Relief to Affected Home Buyers For Delay In Possession

No Occupancy Certificate No Maintenance Charges

An Occupancy Certificate (“OC”) is a document that is issued by a local government agency or planning authority, upon completion of construction of a new project. The certificate is proof that the project has been built, by adhering to applicable building codes, relevant regulations, and laws. It is the responsibility of the developer to obtain an occupancy certificate once the project has been completed. The certificate is an indication that the building is suitable for occupancy.…

Continue Reading No Occupancy Certificate: No Maintenance Charges

Validity of a Power of Attorney – A Registration Act Perspective

In the matter of Amar Nath v. Gian Chand & Ors.[1], an appeal was filed in the Apex Court against a High Court order holding that production of a true copy of Power of Attorney (“POA”) was essential for the execution of a sale deed under Section 18 of the Registration Act, 1908 (“Act”).…

Continue Reading Validity of a Power of Attorney – A Registration Act Perspective

Title in immovable property cannot be bestowed on basis of mutation entries

Mutation is a process of changing/updating the title/ownership in the local land revenue/municipal records, which is essential for assessment of the new owner’s tax liabilities.

The Apex Court in Sawarni v. Inder Kaur and Ors.[1] set aside the orders passed by the (i) High Court dismissing the second appeal and (ii) Additional District Judge and held that “Mutation of a property in the revenue record does not create or extinguish title nor has it any presumptive value on title. It only enables the person in whose favour mutation is ordered to pay the land revenue in question.” The order recorded that the Additional District Judge has erroneously concluded that mutation in favour of Inder Kaur (respondent) conveys title to the property in her favour, thus giving rise to conflict. The Apex Court further noted that the lower appellate court did not reach any positive findings on the title of the respondent to the property and was swayed away with the mutation in the revenue record reflecting the name of the respondent.
Continue Reading Title in immovable property cannot be bestowed on basis of mutation entries

MahaRERA - Update on procedure for transferring or assigning promoter’s rights and liabilities to a third party was laid down

Maharashtra Real Estate Regulatory Authority (MahaRERA), vide Circular No. 11/2017 dated November 8, 2017, bearing reference no. MahaRERA/Secy/File No.27 / 491 /2017, prescribed procedure for transferring or assigning promoter’s rights and liabilities to a third party. The circular delineated the procedure in accordance with Section 15 of the Real Estate (Regulation and Development) Act, 2016 (“Act”), which states that, “the promoter shall not transfer or assign his majority rights and liabilities in respect of a real estate project to a third party without obtaining prior written consent from two-third allottees, except the promoter, and without the prior written approval of the Authority”.
Continue Reading MahaRERA: Update on procedure for transferring or assigning promoter’s rights and liabilities to a third party was laid down

It’s settled Tenants are entitled to owners’ parking spaces

Often when units are given on leave and license basis to tenants, Co-operative Housing Society’s (CHS) prior approval is obtained, or intimation is provided, whichever is prevalent as per the bye-laws of the CHS. CHS’s however refrain from letting owners give their tenants a right to park in the car parking space appurtenant to such unit, to enable the CHS to rotate the car parking slots among its members only.
Continue Reading It’s settled: Tenants are entitled to owners’ parking spaces

Dispute mechanism available under a lease

How it started:

It started with the case of Booz-Allen & Hamilton Inc v. SBI Home Finance Ltd & Others (“Booz-Allen”), wherein the Supreme Court, after hearing the matter, held that the disputes relating to eviction and tenancy were not arbitrable. Leases are governed under the Transfer of Property Act, 1882 (“TOPA”). The court discussed the nature and scope of issues arising for consideration in an application under Section 8 of the Arbitration and Conciliation Act (“Act”) wherein “even if there is an arbitration agreement between the parties, and even if the dispute is covered by the arbitration agreement, the court where the civil suit is pending, will refuse an application under Section 8 of the Act, to refer the parties to arbitration, if the subject matter of the suit is capable of adjudication only by a public forum or the relief claimed can only be granted by a special court or Tribunal”.
Continue Reading Dispute mechanism available under a lease

Time is of the essence for registration of a lease

INTRODUCTION

More often than not, the central procedural question on the minds of parties entering into a lease deed is whether the registration thereof is mandatory. This central query pervades the gamut of situations ranging from lease of residential to commercial properties, and from short-term to long-term leases.

The law governing registration of lease deeds is primarily contained in the Registration Act, 1908 (“Registration Act”) and the Transfer of Property Act, 1882 (“TOPA”). A lease of an immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised or of money, a share of crops, service or any other thing of value to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms as defined in Section 105 of TOPA. According to the Registration Act, ‘lease includes a counterpart, kabuliyat, an undertaking to cultivate or occupy, and an agreement to lease[1]’.
Continue Reading Time is of the essence for registration of a lease

Termination of Leases – Express or Implied 

Landlord-Tenant relationship is a jural relationship and is governed by the provisions of Transfer of Property Act, 1882 (Act). In a landlord/tenant relationship, the parties are often referred to as lessor (landlord) and lessee (tenant). The contract under which the landlord-tenant relationship is bound is a lease agreement. The term ‘lease’ is defined under Section 105 of the Act and states as follows – 

“A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specific occasions to the transferor by the transferee, who accepts the transfer on such terms”. Thus, a lease of an immovable property is a contract between two principal parties the lessor and the lessee, whereby the lessor creates an interest in favour of the lessee with regard to property for a specific duration.
Continue Reading Termination of Leases – Express or Implied?

COVID-19 - Impact on Real Estate

With a lot of disruption and backlog due to coronavirus, all industries, along with the real estate sector, have taken a massive hit. The year 2019 was not such a progressive year and everyone was counting on 2020 to recover and improve from last year’s lows. However, the real estate sector is in a deep standstill on the back of the global economic crisis, coupled with the COVID-19 situation.

This scenario calls for anyone to take precautions and due to restrictive movement because of the travel ban and the stock market crash, developers for one are not looking to take any chance in blocking their money in launching any new projects. At this point, one of the challenges being faced by them is the impact on contracts/agreements due to COVID-19, which are currently in motion/existence. The question being raised is whether the COVID-19 pandemic calls for a force majeure consideration in the existing contracts. Force majeure clause acts as a protection to parties wherein due to any unforeseen circumstances, either of the parties are unable to fulfil their commitment as per the agreed terms and conditions of the contract. To put it simply, due to any acts of god such as fire, flood, war, etc., parties are unable to perform their part as it is not reasonably within the control.
Continue Reading COVID-19: Impact on Real Estate