Wednesday 11 March 2015

Essentials of a Valid Sale of Immovable Property – India




The sale of immovable property throughout India is controlled by the Transfer of Property Act, 1882. It is commonly referred to as TOPA.

“Sale” is generally understood as a change of ownership, in return for consideration.

The law also explains “Immovable Property” to include land, any benefits that arise out of the land, things that are permanently affixed to either the Earth or anything that is attached to it. Additionally, TOPA effectively states that Immovable Property excludes grass, growing crops and standing timber.

Essentials of a Valid Sale – 

To understand the necessities of constituting a valid sale, a simple illustration is shown: Ms. Pooja Kumar wants to sell her residential apartment flat in Uttar Pradesh and advertises in newspapers for the same, inviting interested parties to approach her and finalise the sale.
For the sale to be effective, it is necessary to follow the below mentioned conditions laid down in TOPA:

1.    The seller must be competent to transfer – This literally indicated that the seller should be:
(i)     Competent to contract under S 11 of the Indian Contract Act,
(ii)   Entitled to transferable property, OR
(iii) Have the authority to sell off the transferable property which is not hers.
In this case, Ms. Kumar being the owner is allowed to transfer it if she is capable to contract.

2.    The buyer must be a person competent to be a transferee – The buyer may be any living person who is not disqualified to be a transferee under S 6 of the Act.

3.    The subject matter must be transferable immovable property – For a property to be considered for sale, it should comply with the provisions of S 6 of TOPA. In this case, the residential apartment flat in Uttar Pradesh that Pooja wants to sell is free of any constraints and can be sold.

4.  There must be transfer of ownership – The sale is affected only when the ownership is transferred to the buyer. In our illustration, after Ms. Kumar finalises a buyer, she has to transfer the legal title of the immovable apartment.

5.    The transfer must be in exchange for a price – While selling immovable property, the transaction can only be completed if a price is decided for it.

6.    The price must be paid or promised or partly paid and partly promised – When the sale is executed, either the agreed price should be paid, or promised to be paid or be halfway between both, to consider it as a valid sale. If the property is transferred without a price, it is called a gift. Thus Pooja should have either received the price or agreed to receive it at a later date.

7.    There must be a registered conveyance deed in case of –
(i)     Tangible Immovable Property costing Rs. 100 or more, OR
(ii)   A reversion of an intangible thing of any value
In this case, the sale of the flat should be registered by a conveyance deed.

8.    In the case of tangible immovable property of a value less than Rs. 100, there must either be –
(i)     A registered conveyance, OR
(ii)   Delivery of Property
This point does not apply to our current example, as the value of the property in consideration is more than the minimal limit.

Hence, we have seen the essentials of a valid sale of immovable property in India.