INDIA Law and Practice Contributed by: Vivek Chandy, Archana Tewary, Kumarmanglam Vijay and Megha Arora, JSA
evidencing a transfer of interest in immovable property of a value more than INR100. Once reg - istered, documents become part of the public record. Such transfers also require the payment of duties (such as stamp duty, registration fee and other cess applicable to each state) and are recorded by the revenue departments, which maintain a separate set of records for each property. Where transfer is effected through suc - cession, revenue records are updated to reflect the inheritance; these become publicly available once recorded. Insurance companies in India do offer title insur - ance, although establishing title is often very complicated. Measures are being taken to sim - plify the manner in which title can be verified, and governments are taking steps to make such records electronic, although it will take some time to do so. During the early stages of the COVID-19 pan - demic, certain state governmental authorities allowed additional time to register documents governing rights/transfers of immovable prop - erty. The process of registering documents has now reverted to pre-pandemic methods, and the COVID-19 pandemic and associated lockdowns have had no continued impact. 2.4 Real Estate Due Diligence Tracing title to property is often complicated, as records are not centrally located and are main - tained by different governmental departments. Antecedent documents in each state are often in vernacular languages. Typically, title due dili - gence is conducted on properties proposed to be purchased for the preceding 30–40 years. When conducting due diligence, it is not possible to discover all litigation (as the details of litigation are not completely computerised), mortgages by
deposit of title deeds and unregistered contracts (which do not require registration under the Reg - istration Act) that have a bearing on the title of the property, so it is important to take detailed representations and warranties. In some states, litigation cases are required to be registered with the SRA in order to become binding or to be considered as constructive notice to a person buying immovable property subject to litigation. Taking possession of the original title deeds at the time of sale is also extremely important, as they can be used to mortgage/encumber a prop - erty. Where the original title deeds are not avail - able, one must ensure there has been no mort- gage/encumbrance by deposit of the title deeds by the sellers or their predecessor-in-interest. Due diligence also sometimes requires the issu - ing of public notices in local papers, inviting claims in respect of the property and making searches before the court offices. As part of the due diligence on vacant land parcels, it is also advisable for the buyer to conduct a survey of the land to confirm the measurement of the available land. Some companies offer the use of emerging technologies in title due diligence, but given the difficulties in accurately tracing title the use of such technologies may currently be limited. With increased digitisation of records, the use of such technologies may make the process of title due diligence easier. 2.5 Typical Representations and Warranties In most transactions, representations and war - ranties are comprehensive, except where a transfer is on an “as is, where is” basis, and the liability of the seller is limited to the purchase price or a portion thereof. After the COVID-19
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