NEED FOR DRAFTING OF PROPERTY DOCUMENTS
Identifying a suitable property is the first step taken towards the purchase of a property. After completing the same, documentation is the next and very important aspect.
The agreement to sell is governed by the provisions of the Indian Contract Act 1872 and the Transfer of Property Act 1882.
Mode of stamp duty
Previously, documents were prepared on the stamp paper issued by the Government Department. After the ‘Telgi Scam’, usage of the stamp papers is prohibited in Karnataka. Now, a white paper or Rs 2 document sheet which is issued by the department of Registration is preferred. Regarding stamp duty, it has to be made either by way of Pay order / Demand Draft or Banker’s Cheque in favour of the concerned Sub-Registrar. The Registration charges either by way of DD or cash, is to be submitted to the concerned Sub-Registrar. The details of the stamp duty and registration charges will be entered by the Sub-Registrar on the reverse side of the sale deed.
The beginning
Documents consist of several distinct parts. The name and description of the documents is the first caption shown in the document. This gives a general indication about the nature of a document. However, contents are the most important factor to decide the nature of the document. The date and place of the execution of the document is the beginning of the document. The date of the document may differ from the date of registration. Documents can be presented for registration within four months from the date of execution. However, the date and place of execution is important for purpose of determining the limitation and jurisdiction.
The name of the parties to the contract, their age, father’s name, in case of a married woman her husband’s name, and place of their residence should be mentioned.
All the owners, as one of the parties to the contract, should take abundant care at the time of executing the documents. The party to the contract may act for himself/itself or on behalf of someone else or he may represent in any other capacity. In such a case, the party should clearly mention the capacity in which is he is representing.
All the relevant facts are to be explained in a logical and chronological order should be narrated. The rights and obligations of the parties must be stated. The intention of the party should also be clearly mentioned in the document.
‘Preamble’
Preamble reveals the history of the property, nature of the transaction and the intention of the party. The previous history of the property can be established, by an advocate, from the Preamble.
Operative portion
The operative portion of the document states the nature of the transaction, i.e., whether it is an absolute transfer or an agreement to transfer the right, title and interest, consideration paid, mode of payment of such consideration and balance payable, if any. The duration for completion of the transaction should be mentioned clearly. The covenants of the vendor, pertaining to clear and marketable title, is an important aspect of the transfer.
Default clause
In the case of default in the payment or non-performance of the other party, remedy available to the opposite party has to be clearly mentioned in the document.
In case of delayed payment, what is the percentage of interest payable or damages payable to the other party or the mode to terminate the agreement in case of breach of contract should be stated clearly.
In case of non-performance, specific performance clause should also be included in the document.
The arbitration clause is advisable to be incorporated in the agreement.
Possession
The time of delivery of possession should be clearly and specifically mentioned. It may be noted that the seller need not give the possession of the property to the purchaser on execution of the agreement or on part payment. Possession has to be given on completion of the sale process and receipt of full consideration amount after execution of the conveyance deed. The agreement should also refer to the mode of possession of the property and whether it is vacant or not. When the property is let out, the seller has to arrange for a rental agreement between the existing tenant and the purchaser of the property. Possession is the most important ingredient of the transaction.
Description
Location and description should contain the total measurement, the municipal number, street, road, with complete and proper boundaries and properties surrounding the property agreed to be sold. It should also include the area, floors, type of constructions and materials used among others. The details should be exhaustive so as to identify the property clearly as Section 21 and 22 of the Indian Registration Act makes it mandatory to disclose the details.
Execution
At the end, the document should contain an undertaking that the executants is signing the documents before the witnesses. The witness who sign in the document, may or may not know the contents of the agreement. Whereas, in the case of consenting witnesses, who have a certain interest in the property, they should know the contents of the documents. The non-testamentary document should be drafted by an Advocate or licensed documents writer and they should sign on the same.
Preservation
Preservation of the original document is the most important aspect as it is an evidence of ascertaining the ownership of a particular person and incase of his death, for their legal heirs. If the original document is misplaced or unavailable, it would seriously affect the title of the property. It may be presumed that the property documents are pledged with some financial institutions by way of deposit of title deeds. It is advisable to laminate the documents and preserve them in safe custody.
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advocate selvakumar
Identifying a suitable property is the first step taken towards the purchase of a property. After completing the same, documentation is the next and very important aspect.
The agreement to sell is governed by the provisions of the Indian Contract Act 1872 and the Transfer of Property Act 1882.
Mode of stamp duty
Previously, documents were prepared on the stamp paper issued by the Government Department. After the ‘Telgi Scam’, usage of the stamp papers is prohibited in Karnataka. Now, a white paper or Rs 2 document sheet which is issued by the department of Registration is preferred. Regarding stamp duty, it has to be made either by way of Pay order / Demand Draft or Banker’s Cheque in favour of the concerned Sub-Registrar. The Registration charges either by way of DD or cash, is to be submitted to the concerned Sub-Registrar. The details of the stamp duty and registration charges will be entered by the Sub-Registrar on the reverse side of the sale deed.
The beginning
Documents consist of several distinct parts. The name and description of the documents is the first caption shown in the document. This gives a general indication about the nature of a document. However, contents are the most important factor to decide the nature of the document. The date and place of the execution of the document is the beginning of the document. The date of the document may differ from the date of registration. Documents can be presented for registration within four months from the date of execution. However, the date and place of execution is important for purpose of determining the limitation and jurisdiction.
The name of the parties to the contract, their age, father’s name, in case of a married woman her husband’s name, and place of their residence should be mentioned.
All the owners, as one of the parties to the contract, should take abundant care at the time of executing the documents. The party to the contract may act for himself/itself or on behalf of someone else or he may represent in any other capacity. In such a case, the party should clearly mention the capacity in which is he is representing.
All the relevant facts are to be explained in a logical and chronological order should be narrated. The rights and obligations of the parties must be stated. The intention of the party should also be clearly mentioned in the document.
‘Preamble’
Preamble reveals the history of the property, nature of the transaction and the intention of the party. The previous history of the property can be established, by an advocate, from the Preamble.
Operative portion
The operative portion of the document states the nature of the transaction, i.e., whether it is an absolute transfer or an agreement to transfer the right, title and interest, consideration paid, mode of payment of such consideration and balance payable, if any. The duration for completion of the transaction should be mentioned clearly. The covenants of the vendor, pertaining to clear and marketable title, is an important aspect of the transfer.
Default clause
In the case of default in the payment or non-performance of the other party, remedy available to the opposite party has to be clearly mentioned in the document.
In case of delayed payment, what is the percentage of interest payable or damages payable to the other party or the mode to terminate the agreement in case of breach of contract should be stated clearly.
In case of non-performance, specific performance clause should also be included in the document.
The arbitration clause is advisable to be incorporated in the agreement.
Possession
The time of delivery of possession should be clearly and specifically mentioned. It may be noted that the seller need not give the possession of the property to the purchaser on execution of the agreement or on part payment. Possession has to be given on completion of the sale process and receipt of full consideration amount after execution of the conveyance deed. The agreement should also refer to the mode of possession of the property and whether it is vacant or not. When the property is let out, the seller has to arrange for a rental agreement between the existing tenant and the purchaser of the property. Possession is the most important ingredient of the transaction.
Description
Location and description should contain the total measurement, the municipal number, street, road, with complete and proper boundaries and properties surrounding the property agreed to be sold. It should also include the area, floors, type of constructions and materials used among others. The details should be exhaustive so as to identify the property clearly as Section 21 and 22 of the Indian Registration Act makes it mandatory to disclose the details.
Execution
At the end, the document should contain an undertaking that the executants is signing the documents before the witnesses. The witness who sign in the document, may or may not know the contents of the agreement. Whereas, in the case of consenting witnesses, who have a certain interest in the property, they should know the contents of the documents. The non-testamentary document should be drafted by an Advocate or licensed documents writer and they should sign on the same.
Preservation
Preservation of the original document is the most important aspect as it is an evidence of ascertaining the ownership of a particular person and incase of his death, for their legal heirs. If the original document is misplaced or unavailable, it would seriously affect the title of the property. It may be presumed that the property documents are pledged with some financial institutions by way of deposit of title deeds. It is advisable to laminate the documents and preserve them in safe custody.
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advocate selvakumar
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