INDIA Law and Practice Contributed by: Vivek Chandy, Archana Tewary, Kumarmanglam Vijay and Brijita Prakash, JSA
2.3 Effecting Lawful and Proper Transfer of Title Documents governing rights/transfer of title to immovable property are registered before the jurisdictional Sub-Registrar of Assurances (SRA). Registrations are mandatory for instruments evi - dencing transfer of title/interest in immovable property exceeding INR100 in value. Once reg - istered, documents become part of the public record. Such transfers also require the payment of duties (stamp duty, registration fee and cess) and are recorded by the revenue departments. A will need not be registered under Indian law. Where transfer is effected through succession, revenue records (which are public) are updated to reflect the inheritance. Insurance companies in India do offer title insur - ance, although establishing title is often compli - cated. Measures are being taken to simplify the way title can be verified, and governments are 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. Typically, title due diligence for the preceding 30-40 years is conducted on proper - ties proposed to be purchased. When conducting due diligence, one may not discover all litigation (if the litigation is not entered in revenue records), mortgages by deposit of title deeds and unregistered contracts (which do not require registration under the Registration Act) that have a bearing on the title of the property, so it is important that litigation searches on the e-court websites and physical searches in the court records (wherever necessary) are also con - ducted. taking steps to digitise title records. 2.4 Real Estate Due Diligence
Taking possession of original title deeds at the time of sale is also critical, as they can be used to mortgage/encumber a property. Where origi - nal title deeds are not available, one must ensure there has been no mortgage/encumbrance by deposit of title deeds by the sellers or their pre - decessor-in-interest. Public notices in local papers inviting claims in respect of the property are often issued before proceeding with real estate transactions. Buy - ers can also conduct a survey of the land to confirm the measurement of the available land. For developed properties, in addition to title due diligence, buyers must also review various approvals, permissions, and compliance with laws (regarding development and usage of the properties) laid down by the respective states. Tax-paid receipts should also be checked. Some companies offer the use of emerging tech - nologies in title due diligence; however, given the difficulties in accurately tracing title, the use of such technologies may currently be limited. 2.5 Typical Representations and Warranties Under TOPA, unless otherwise agreed between the parties, a seller is (a) bound to disclose any material defect in the property/seller’s title and (b) deemed to have represented that the inter - est which the seller professes to transfer to the buyer subsists and that the seller has power to transfer it. In most transactions, representations and warranties are comprehensive, except in “as is, where is” -basis transactions (which happens in case of distressed sales). Seller title warran - ties are unlimited in both duration and amount of damages. Lately, there have been a few instanc - es where sellers have asked to limit their liability, though this is not market standard.
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