Co-op housing soceity transfer of shares
Tayib
(Querist) 19 January 2013
This query is : Resolved
Situation:
a. Housing Soceity is under Maharashtra Co-op HS Act.
b. HS has land plots (NO FLATS) which prospective buyers want to buy including me from the initial 1st Members.
c. HS issued ONLY allotment letter and share certificate to its members.
D. HS did NOT execute a Lease Deed or any sort of deed or agreement with its 1st set of members who are in possesion of share certificate.
c. Current owner (1st Member) has share certificate, allotment letter but NO lease deed done or any document registered.
My Questions are:
1. Which all documents should the 1st member have with him in possesion before he can sell his share to me?
2. If i want to buy the land, what all documents will be required to be executed from my end for the entire transaction to be legal and future safe for sale. A few options i have been given are
Lease Deed
Transfer of Lease Hold Right (Tri Party)
Draft Deed
ajay sethi
(Expert) 19 January 2013
has conveyance been executed in fvaour of society . if society is the owner of land ask for copy of conveyance deed . take 30 years search search . you need to contact a local lawyer .
Tayib
(Querist) 19 January 2013
Yes, Conveyance has been executed in society. Society is the owner of the land. And i have the 30 year search and title report. I did contact local lawyers, however someone is suggesting a draft deed and others a tri party agreement and hence the confusion.
Basically the society committee too are not aware how to process this as this is the first time there are transferring the shares.
Raj Kumar Makkad
(Expert) 19 January 2013
1. Share certificate of first member, his allotment letter, NOC of the society. Only these documents are required to be obtained along-with agreement to sale.
2. As there is no lease over the plot from the side of the society so the question of lease do not arise. /a tripartite agreement with the change of share certificate in your name is the only remedy in the given matter.
Tayib
(Querist) 19 January 2013
Thanks Raj & Ajit. Appreciate the same.
Hemant Agarwal
(Expert) 11 February 2013
for INTROSPECTION:
1. The said Society under question, is a "Tenant-Partnership Society" (means the Society is formed for the purpose of alloting houses to its Pre-Determined & Pre-Enrolled members and these category are the original promoter members called "Allottee Member").
2. Such "Allottee Member", does not excute any Sale / Purchase / Gift Deed or any other deed with the Society, more so specifically since such "Allottee Member" does not constitute as a "Title-Owner" of the Society flat under the Transfer of Property Act.
3. The Title-Ownership rights of the property will permanently rest with the Society. Now when the said "Allottee Member" decides to sell his flat, it means that he intends to "Sell his Transferable Membership" AND NOT ownership, simply because the said "Allottee Member" is NOT the Title-Owner (as explained in point no. 2, above)
4. Under the Registration Act and the Stamp Act, a housing Society ("Tenant-Partnership Society") is exempt from registration fees and stamp duty, JUST SIMPLY because here there CANNOT be a sale of the flat in such category of Society, BUT SIMPLY a "transfer of membership" AND transfer of membership does not attract Registration Fees and does not attract Stamp Duty.
5. IN case if the original "Allottee Member" wants to sell his flat (aka Transfer of Membership), THEN he has to obtain a mandatory "No Objection Certificate" from the said Society, and THEN excute the relevant society transfer forms, pay membership transfer fee, pay membership entrance fees and pay Share Transfer Premium to the Society, for Transfer of Membership.
6. However, for the purpose of payment of consideration of the property, and to fulfill the parameters of the Contract Act and the parameters of the various Succession Act's, for probable future succession issues and Nomination issues and for Title-Ownership issues, the new owner (Transfree) may execute a registered and stamp duty sale deed WITH THE NEW PURCHASER AND THE SELLER "AND" keep this sale deed with himself. This has got nothing to do with the Cooperative Acts, for Transfer of Membership.
7. The Title-Ownership of a property comes within the parameter of "Transfer of Property Act" (an absolute right) and the Membership of Society comes within the parameter of the state "Cooperative Acts" (a fictional right (sic))
8. There is no such thing as "Tri-Partite Agreement" component in Transfer of Membership in Cooperative Society, Since the Society has no jurisdiciton AND CANNOT tranfer "Ownership" of its property BUT ONLY affect "Transfer of Membership" ONLY AFTER due procedures (Transfer Forms instead of Sale Deeds) under the relevant Cooperative Laws.
9. A housing society cannot Sell or Lease its plots BUT only ALLOT its plots to its own membership. It is not the business of a Housing Society to Sell / Purchase / Redevelop flats (unless the specific purpose is defined in its preamble AND / OR appropriate special permission is taken from the competent authority). However the House constructed over the said plot, remains the ownership property of the member.(consideration amount is a separate issue).
10. Share Certificate / Membership cannot be Sold. BUT ONLY TRANSFERRED.
Keep Smiling .... Hemant Agarwal
Tayib
(Querist) 15 February 2013
Thanks Hemant. Now this is a revelation. And sounds extremely logical and satisfactory. Appreciate the detailed input.
Request you to clarify which party is what party you are referring to in Point # 6?
a) Who is the new owner (Transfree)?
Is this Allotee Member you are referring to?
b) Who is THE NEW PURCHASER?
Is it me in my this scenario?
c) Who is the SELLER?
Is this again the Allotee Member? or Housing Soceity?
d) Who will keep the sale deed with himself.
e) Why is this document called a "SALE DEED"?
Hemant Agarwal
(Expert) 16 February 2013
1.
Original Allottee Member = Present Owner = Proposed Seller (Transferor)
New Allottee Member = New Proposed owner = Proposed Buyer (Transfree)
Allotter = Society (means original alloter and all subsequent allotments)
Seller Society ( means NOT EQUAL TO)
Sale-Deed = Mandatory Registration after payment of applicable Stamp Duty.
2. New Owner / Buyer (Transfree) has to execute and retain the original Sale-Deed, in his own custody, permanently, since ONLY this "Sale-Deed" conclusively proves the Title-Ownership of the property in favour of the Proposed Buyer (under the Transfer of Property Act).
3. Sale-Deed = Agreement (under the Contract Act) to receive money (by the proposed seller) for transferring Conveyance (Title-Ownership) of the property to the Proposed Buyer (under the Transfer of Property Act).
4. Re-Read once again my earlier reply (this time more slowly)
Keep Smiling .... Hemant Agarwal
