INDIA Law and Practice Contributed by: Vivek Chandy, Archana Tewary, Kumarmanglam Vijay and Megha Arora, JSA
2.7 Soil Pollution or Environmental Contamination The buyer will not be deemed liable for soil pol - lution or environmental contamination if they can prove that they were not responsible for it. Typi - cally, the buyer is indemnified against any action initiated by the government for the contamina - tion of a property prior to its purchase. Proceed - ings for environmental contamination are very infrequent, although this may change as environ - mental issues are attracting more recognition. Approvals are issued with respect to the prop - erty and pass along with the property under the sale transaction to the buyer. Currently, the sell - er/buyer has no disclosure obligations toward environmental authorities. However, the owner/ developer of the property is required to submit periodic reports to the authorities confirming compliance with the terms and conditions of the approvals. The owner must make the necessary applications for the timely renewal of consents obtained from jurisdictional pollution control boards. 2.8 Permitted Uses of Real Estate Under Zoning or Planning Law The buyer can ascertain the permitted uses of property based on zoning regulations under state-specific town and country planning stat - utes. To aid the development of strategic areas, government entities may allot land with certain obligations imposed on its development. 2.9 Condemnation, Expropriation or Compulsory Purchase The Indian Constitution no longer recognises the right to hold property as a fundamental right. However, Article 300(A) was included in the Constitution to affirm that no person would be deprived of their property except by author - ity of law.
pandemic, more comprehensive clauses per - taining to force majeure (pandemic in particular), termination, etc, are being included, but they are often resisted by landlords given the impact of the pandemic on rental income. Landlords typi - cally insist that, where the lessee retains posses - sion of the premises, there should be no provi - sions for the abatement of rent or other benefits under lease documents. No warranties are provided under any particular statute, but comprehensive warranties regarding title, zoning and other aspects are generally pro - vided. Customary remedies would be to enforce the indemnity claims through arbitration or litiga - tion, with arbitration being the most preferred means of dispute resolution. Seller title warran - ties are unlimited in terms of the time period and the amount of damages, as such warranties are considered fundamental. There have been a few instances of late where sellers have asked to limit their liability, but this is not a prevalent practice. R&W insurance is slowly becoming more popu - lar due to the reduced cost of procuring such insurance; however, please see 2.3 Effecting Lawful and Proper Transfer of Title regarding title insurance. 2.6 Important Areas of Law for Investors The most important areas of law for an investor to consider when purchasing real estate are: • laws applicable to the acquisition, transfer and registration of immovable property; • Indian exchange control laws for foreign investors; • corporate laws where the transferor/borrower/ landlord/lessee is a company; • taxation laws; and • succession and inheritance laws.
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