Builders collaboration agreement
kunal
(Querist) 23 April 2013
This query is : Resolved
sir Mr. A(landowner) enters into a builder collaboration agreement with Mr. B (Developer)
as per this agreement MR. B CONSTRUCT 3 FLOORS AT his cost and in return he get top floor + undivided share of land(built up area)
sir now my question is: can Mr. B directly sell the top floor without getting it registered in his name?
what should i write in the agreement so that Mr. B can directly Sell his share.
Advocate M.Bhadra
(Expert) 23 April 2013
B(developer) can not sell the top floor without of a Power of Attorney executed by by the A(landowner) and also agreement between the two parties.
The term ‘Power Of Attorney’ is an authority given by an instrument by one person, called as the donor or principal, authorising another person, called donee or agent to act on his behalf. There may be possibility of giving ‘Power Of Attorney’ by two or more persons jointly to one or more persons. Here a legal authority is given by the principal to the agent which may be broad or limited and an agent can take all necessary decisions i.e. financial, property related matters and all other matters where principal cannot be present to sign or in the case of principal’s illness and disability.
General Power of Attorney: A general power of attorney is one by which an instrument is executed by the principal authorising the agent to do certain acts in general on his behalf. The word ‘General’ here means that the power must be general regarding the subject matter and not general with regard to powers in respect of a subject matter. If the subject matter is not general but restricted to something either specific or specifically mentioned by the principal while drafting an instrument then it will not constitute a general power of attorney. It is otherwise called as limited power of attorney.
Special Power of Attorney: A special power of attorney is one by which a person is appointed by the principal to do some specified act or acts. In this type of power of attorney, an agent conferred with a power to do specific act in a single or specified transactions in the name of the principal.
Raj Kumar Makkad
(Expert) 23 April 2013
GPA is required to be executed in favour of B along-with the duly executed and registered agreement.
kunal
(Querist) 26 April 2013
THANK YOU EXPERTS
kunal
(Querist) 26 April 2013
sir in the above case owner wants to transfer undivided share in land to the builder on the date of execution of GPA to save Capital Gain Tax Liability.(as asset transferred becomes Long term,if right transferred on the date of execution of GPA)
for that he inserted one clause in collaboration agreement which is produced as under
"That till the time the first sale deed is executed for undivided share in land and roof (built up area) for the builder’s share, the builder shall only be a licensee on the scheduled property and it shall not get any ownership rights over the scheduled property. It is also clearly understood that permitting the Second Party to enter upon the scheduled property and construct the building shall not be construed as delivery of possession in part performance of the contract as understood under the provisions of Section 53A of the Transfer of Property Act or under the provisions of The Income Tax Act.’"
sir please tell is it valid?
what language should be used in place of word "first sale deed" as builder want to sell his share to a prospective buyer through GPA.(basically to avoid stamp duty charges)
Can we replace the word "first sale deed" with GPA.
