Allied Laws
- Arbitration & Conciliation Act, 1996
- Capital Market/SEBI Regulations
- Chartered Accountants Act and Regulations
- Checklist for Mergers, Demergers and Slump Sale
- Competition Act, 2002
- Consumer Protection Act, 1986
- Employees Stock Options and Ownership Plans (ESOPs)
- Fees – Recommended by ICAI
- Indian Registration Act
- Information Technology Act
- Insolvency and Bankruptcy Code, 2016 (IBC)
- Labour Laws
- Leave and Licences
- Limited Liability Partnership
- Maharashtra Public Trusts Act, 1950 as amended by Maharashtra Public Trusts (Second Amendment) Act, 2017 Charity Commissioner (C.C.)
- Maharashtra Stamp Act, 1958
- NBFC Directions, 1998
- Partnership Firms – Procedures (Maharashtra)
- Period of Preservation of Accounts/Records under Different Laws
- Real Estate (Regulation & Development) Act, 2016
- Right to Information Act, 2005
- SEBI (Alternative Investment Funds) Regulations, 2012
- SEBI (Investment Advisers) Regulations, 2013
- SEBI Listing Regulations
- SEBI Takeover Regulations, 2011
- Succession and Wills
- The Banning of Unregulated Deposit Schemes Act, 2019
- The Maharashtra E-Payment of Stamp Duty and Refund Rules, 2013
- The Maharashtra e-Registration and e-Filing Rules, 2013
- The Micro, Small and Medium Enterprises Development Act, 2006
- Transfer and Transmission of Flats
- Valuation
Transfer and Transmission of Flats
Flats being units in a large complex structure, their ownership and enjoyment of which is subject to conditions aimed at ensuring peaceful possession and enjoyment by other unit holders sharing common amenities and having undivided interest in land over which the building stands. Unlike an independent residential house, the management of common amenities and ownership of land in a multi-storeyed structure is with an independent entity and the rights and duties of flat owners are regulated by the respective statutes governing such independent entities.
Two applicable laws which govern these transactions in the state of Maharashtra are:
- Maharashtra Ownership flats (Regulations of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA)
- Real Estate (Regulation and Development) Act 2016
These laws require constitution of a co-operative society or a company or any other form of organisation of flat buyers as soon as minimum prescribed number of flats are taken by the purchasers and to convey the title over the land and building to such Society/ Company.
MOFA also provides for an alternative to the constitution of Co-operative Society/Company by permitting the flat purchasers to submit their respective apartments to the provisions of Maharashtra Apartment Ownership Act, 1970 (MAOA) and form a condominium by making a declaration u/s. 2 and executing Deeds of Apartment as per Sec. 5(2) of that Act.
Transfer of Flats
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Co-operative Society |
Company |
Condominium |
|---|---|---|
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Ownership of the building vests in the Society and the members have right of occupancy which right itself is a specie of the property |
When a Company is formed in accordance with the provision of MOFA the land and building conveyed by the promoter belongs to the Company |
Flats in condominium are not the property of the condominium but remain the property of the apartment owner and can be transferred like any immovable property by execution and registration of a Deed of Apartment (Sale Deed) |
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The right of occupancy is represented by the share certificate |
The Articles of Association provides the nature of rights of the shareholders over the individual flat(s) as well as the manner of identifying the particular flat(s) in relation to which such rights are to be exercised |
Section 4 of the MAOA, 1970 provides that each apartment, together with its undivided interest in the common areas and facilities, appurtenant to such apartment, shall for all purposes constitute heritable and transferable immovable property within the meaning of any law for the time being in force in the State |
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Section 29(2) of the M.C.S. Act lays down that the member shall not transfer any share held by him or his interest in the capital or property unless (a) he held such share or interest for not less than one year and (b) the transfer is made to a member of the Society or to a person whose application for membership is accepted |
An apartment owner may transfer his apartment and the percentage of undivided interest in the common areas and facilities by way of sale, mortgage, lease, gift, exchange or in any other manner whatsoever in the same manner, to the same extent and subject to the same rights privileges, obligations, liabilities etc., as any other immovable property |
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Bye-laws lay down the procedure for transfer of shares and interest in the capital/property of the Society |
Whatever rights are held by the shareholder in respect of the particular identified flat(s), are transferable by transfer of shares which represent his rights and interest in the company’s property |
Transfer of flat in a condominium will be subject to the procedure and conditions laid in the bye-laws of the condominium |
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On the transfer application having been accepted, the share certificate will be transferred to the transferee with necessary mutation of names therein |
Flat is transferred by subscribing to shares of the company |
Flat is transferred by executing Deed of Apartment (Sale Deed) |
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If the flat has been purchased by two brothers by contribution in equal proportion, only one will be admitted as member by the Society, the other one will remain the Associate Member only. |
If a flat is acquired in a condominium by two co-owners, the rights of both the co-owners are distinctly recognised and each co-owner is treated as the owner of his share in the apartment. |
Transmission of flats
Transmission is passing of property or rights therein on the death of the erstwhile owner. It takes place in accordance with the wishes of the deceased or, in the absence of any expression of such wish, in accordance with the provisions of succession laws applicable to him.
Nomination
Membership in Co-operative Society or Company can be conveniently transferred if the original owner of shares makes a nomination in favour of somebody else.
Person acquiring membership by nomination shall hold the flat in trust till the legal heirs are brought on record and shall not have the right to ownership and shall not create third party interest or alienation in any way whatsoever.
If the member dies without making a nomination or no nominee comes forward for transfer, the Society invites claims or objections by a public notice and then the committee decides the person who, in its opinion, is the legal heir of the deceased.
The transmission by nomination in respect of shares in a co-operative society is not a conclusive proof of ownership and can be challenged by other claimants in appropriate proceedings.