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Flat buyers must check if builder has right to construct & sell flats

The law mandates that certain documents must be registered, yet even without registration, permits these documents to be admissible in evidence. Would this be construed to dispense with the requirement to execute the agreement, whether registered or otherwise?
Case Study: Raj Developers had constructed Savitri Sadan building at Bhayander on a plot of land jointly owned by eight members of the Thakkar family. The builder failed to form the society. The shop owners and flat purchasers then formed a society on their own without the builder’s assistance. It was registered as Savitri CHS in March 1994.
The society later attempted to get conveyance of the land and building. As the builder failed to execute conveyance, the society filed a complaint before the Thane District Forum against the developer and eight members of the Thakkar family who had owned the building plot.
The forum observed that there was neither any agreement in respect of transferring the title from the land owners to the builder, nor was there any registered development agreement authorizing the builder to construct the building and sell the flats. The forum observed that when the builder does not have clear title, he cannot pass on the title to the society. Hence the forum concluded that it could not order execution of the conveyance. So the complaint was dismissed.
The society appealed against this order. Its argument was that the Maharashtra Ownership
Flats Act specially provided for unregistered agreements to be accepted in evidence.

The Maharashtra State Commission observed that the issue was not about the document being registered or not. It was whether the builder had any right to construct the building and sell the flats. There was no document to show that the builder had purchased the land or the land owners had given him a right to sell flats in the property. So, when the builder himself does not have any right, he cannot create a further right in favour of the society.
Accordingly, the Commission concluded that it did not have the power to direct the flat owners or the developer to execute conveyance. By its order (15.1.2017) delivered by Justice Bhangale for the Bench along with member D R Shiraso, the State Commission reaffirmed the view expressed by the District Forum, and dismissed the society’s appeal.
Conclusion: Flat purchasers must ascertain whether a builder has the right to construct a building and sell flats. A tacit understanding between the land owner and builder would be of no help. What is required is that there must be a written contract between the land owner and the builder. In the absence of such an agreement, the flat purchasers would never get any right to the flat purchased by them. So the only option available would be to seek a refund of their money along with compensation and costs.
Times of India – 22nd  January 2018


Grant adequate meeting time to jailed Unitech MD Sanjay Chandra: SC to Tihar Jail authorities

The Supreme Court today directed Tihar Jail authorities to grant adequate meeting time to their inmate Sanjay Chandra, Managing Director Unitech BSE -1.12 % Ltd, for allowing him to strike deals with prospective buyers.

Chandra, head of the embattled real estate group, was recently asked by the apex court to deposit Rs 750 crore with it by December end to safeguard the interests of homebuyers.

A bench of Chief Justice Dipak Misra and Justices A M Khanwilkar and D Y Chandrachud considered the submission of senior advocate Ranjit Kumar that Chandra gets 30 minutes meeting time in jail to deal with prospective buyers and for arranging money.

The apex court had on October 30 said that the jailed businessman will be granted bail only after the real estate group deposits money with its registry by December end.

Today, the senior lawyer said that Chandra has been required to be produced in various courts, consumer forum and commissions on a regular basis which hampered his endeavour to arrange money and hence, the production warrants issued against him by various judicial bodies be stayed for 15 days.

He also said that the accused be allowed to appear in courts through his lawyers. The plea was declined.The apex court, however, clarified that its earlier order directing all courts below not to take any coercive action against the accused for the time being would also be made applicable on all forums including state and national consumer commissions.

It had said if any proceedings were pending against Chandra and the company, those may continue and the final order be passed but no coercive steps would be taken for executing those orders.

Chandra is seeking interim bail from the apex court after the Delhi High Court on August 11 had rejected the plea in a criminal case lodged in 2015 by 158 home buyers of Unitech projects’ — ‘Wild Flower Country’ and ‘Anthea Project’ — situated in Gurugram.

Source – TOI

Maha RERA makes only developer, not land owner, answerable to homebuyers

Maharashtra Real Estate Regulatory Authority (MahaRERA) has withdrawn its office order making land owners equally liable as that of builders and developers

Maharashtra Real Estate Regulatory Authority (MahaRERA) has withdrawn its office order making land owners equally liable as that of builders and developers under the Real Estate (Regulation and Development) Act, 2016, the Bombay high court (HC) was told last week.

Advocate general Ashutosh Kumbhakoni told a division bench of justice Naresh Patil and justice Rajesh Ketkar that the authority has withdrawn the order dated May 1 by which it had introduced definition of the term “co-promoter” in the Real Estate (Regulation and Development) Act, 2016.

The office order defined co-promoter as the person or organisation, who under an agreement with the promoter (builder or developer) of a real estate project, is allotted or entitled to a share of the total revenue generated from sale of apartments in the project or in terms of constructed apartments in the project.

Kumbhakoni was responding to a petition filed by seven city residents, who own a 12,531 sqm plot at Nahur and who have given the land for development to a private developer, Shivkripa Enterprises.

 In the petition filed through advocate Vishwajeet Kapse they challenged validity of the office order primarily on grounds that the authority under RERA was not empowered to introduce any such new term into the enactment. “The impugned office order is tantamount to legislation,” stated the petition. “Respondent (MahaRERA) cannot legislate for the state, much less for the Union,” it added.

They took strong objection to the fact that the office order foisted a liability on land owners which was not contemplated either under provisions of the Maharashtra Ownership of Flats Act or under provisions of the RERA, 2016.

They said the authority under RERA failed to appreciate that the land owner, who is not himself the developer, does not undertake any construction activity and only parts with his rights as owner of the land to the builder or developer (promoter under RERA) to develop the land, and he has no further role to play in construction of the apartments and their sale to individual purchasers.

They withdrew the petition last week after Kumbhakoni made a statement to the effect that the office order has been withdrawn.

Source HT

Housing firm VBHC Value Homes plans IPO by 2019

The company, co-founded by Jaithirth Rao and P S Jayakumar, is backed by a number of investors including Japanese real estate conglomerate

City-based affordable housing firm VBHC Value Homes is planning an initial public offering (IPO) by 2019. The company, which plans to raise upward of ₹1,000 crore, intends to use the proceeds to expand operations across the country. It may also offer exits to some of its investors.

The company, co-founded by Jaithirth Rao and P S Jayakumar, is backed by a number of investors including Japanese real estate conglomerate Daiwa House Industry Co, Caspian Investment Advisors, The Carlyle Group, International Finance Corp, Tano Capital and HDFC Bank. The PE funds and small investors own over 60% stake in the company valued at over ₹800 crore.

VBHC, which sells homes in the ₹16-40 lakh price bracket, had earlier planned to raise money through public market in 2017.

“We postponed the IPO due to policy changes like real estate regulatory bill, goods and services tax and demonetisation,” VBHC chairman Jaithirth Rao said. However, he declined to comment on the exact size of the offering.

Ram Walase, CEO, said: “We will launch about one million sqft of projects across Bangalore, Pune and Mumbai over the next year. Some of our existing projects will also see their next phases opening up.”

Company is backed by a number of investors including The Carlyle Group, International Finance Corp, Tano Capital & HDFC Bank

Source – ET

Home buyers claim Jaiprakash Associates diverted over Rs 10,000 crore from Jaypee Infra

Jaypee Infratech has spent a minimum amount of Rs 13,283 crore towards the construction and development of the Yamuna Expressway, which translates to an amount of Rs 80.50 crore per kilometer

Home buyers claim Jaiprakash Associates has diverted over Rs 10,000 crore from its subsidiary Jaypee Infratech, which is under insolvency, in construction of Yamuna Expressway and other real estate projects.

In a new application filed by law firm Trilegal in the Supreme Court today on the basis of a report by accountancy firm ASA Financial Services, around 2,400 home buyers of Jaypee Wish Town project in Noida asked for forensic audit of accounts of Jaypee Infratech and Jaiprakash Associates, claiming that Jaiprakash Associates has transferred the land bank of Jaypee Infratech for settling its loans without adequate provisions and used its land bank as a security for getting loans.

According to the ASA report, Jaypee Infratech has spent a minimum amount of Rs 13,283 crore towards the construction and development of the Yamuna Expressway, which translates to an amount of Rs 80.50 crore per kilometer. However, the report compares the expenditure with an amount of Rs 17.16 crore per kilometer, which translates to Rs 34.32 crore per kilometer after indexing for inflation as per the consumer price index, spent on constructing a comparable six-lane concrete Mumbai-Pune Expressway.

Thus, the report finds that Jaiprakash Associates might have received an excess payment of about Rs 46.18 crore per kilometer for the construction of the Yamuna Expressway, which totals to about Rs 7,500 crore for the 165-kilometer Yamuna Expressway.

The report also finds that Jaiprakash Associates likely to have have overbilled at least Rs 3,000 crore to Jaypee Infratech for construction and development of the later’s real estate projects.

Jaypee Infratech in financial year 2015-16 gave 967 acres of land as security for Rs 33,000 crore loan taken by Jaiprakash Associates, and transferred 476.29 acres of land worth Rs 2,647.24 crore to the lenders of Jaiprakash Associates to settle its liabilities.

An email sent to Jaiprakash Associates didn’t elicit a response until the publication of this report Monday.

Devendra Yadav, a member representing nine association of Jaypee Infratech’s Wish Town projects urged the Supreme Court to direct Jaiprakash Associates to deposit Rs 15,000 crore, instead of Rs 2,000 crore ordered earlier. “We also demand a CBI enquiry for this scam, so that next time nobody can loot public money like this,” he said.

Home buyers had appointed ASA to undertake diligence of publically available accounts of Jaypee Infratech.

The Allahabad bench of the NCLT classified Jaypee Infratech, a subsidiary of Jaiprakash Associates, as insolvent on August 9 on a petition filed by IDBI Bank under the Insolvency and Bankruptcy Code 2016. Jaypee had defaulted on a Rs 526 crore loan by the bank.

The Supreme Court on September 11 had asked Jaiprakash Associates to deposit Rs 2,000 crore by October 27 to pay off the aggrieved home buyers.

The builder had requested the Supreme Court that it wants to sell off the Yamuna Expressway to generate money, and has an offer in hand for Rs 2,500 crore. The apex court, however, denied permission to sell off Yamuna Expressway, while extending the time to deposit Rs 2,000 crore as per its earlier order till November 5.

However, on the company’s failure to deposit the money on time, the apex court has now directed all the directors, except institutional ones, to be personally present in the next hearing on November 22, while also asking them to disclose their personal assets.

Jaiprakash Associates has now asked its employees to contribute towards arranging the Rs 2,000 crore, which will be returned in nine equal installments starting January 2018.

Meanwhile, the interim resolution professional (IRP) appointed in the Jaypee Infratech insolvency case, received around 18 expression of interests (EOIs) from the likes of steel, energy and cement conglomerate JSW Group, metals and commodities giant Vedanta, Mumbai-based builder Lodha Group, Deutsche Bank, etc, to buy Jaypee Infratech in full or in part.

Source – ET

Global investors eye tieups with local realtors to build commercial assets

Blackstone, GIC, Brookfield and CPPIB have already taken most of the ready and leased assets, leaving other long-term investors ready to write big cheques to scout

Global private equity, pension and sovereign wealth funds eyeing commercial assets in India are now looking to build these assets with local developers given that the demand is far outstripping supply of grade A assets in key markets.

Blackstone, GIC, Brookfield and CPPIB have already taken most of the ready and leased assets, leaving other long-term investors ready to write big cheques to scout for partners for development opportunities on core assets.

“Increasingly global investors are seeking advice on arrangements to be made with local realty developers for developing greenfield assets rather than waiting for the asset to be built by someone else. With this, their returns are also expected to be better as they lock in commercials from day one,” said Bhairav Dalal, partner, PwC India.

PwC’s annual survey on emerging trends in real estate found Mumbai, Bangalore and New Delhi’s pan-Asia rankings in term of investment destination stood at 12, 15 and 20, respectively. However, interest from international investors remains unabated. The survey is based on 400 fund managers and developers across Asia.

Global investors eye tieups with local realtors to build commercial assets

“Developers are successfully attracting funds with good capitalisation rate for their assets. But, that means expensive deals for funds. In this backdrop, investors are open to an idea of developing their own assets provided they find right partners. Capital is not an issue for India, but correct alliances are,” said Rajesh Agarwal, CEO, Shapoorji Pallonji Investment Advisors.

Last month, global insurance and asset management major, Allianz Group, in its maiden property-related engagement in India, partnered with Shapoorji Pallonji Group to create an investment platform for office properties. The fund is aiming to raise $500 million in equity and is also open to greenfield investment opportunities in commercial and logistics segment.

This deal forms part of Allianz’s strategy to allocate about 5% of its global real estate portfolio to the Asia-Pacific region. Allianz’s total real estate exposure across the globe is worth 52 billion Euros and is the world’s second largest principal investor. It is looking to invest more in India, in line with most of the international institutional investors’ plans for Indian real estate.

For domestic institutional investors, however, tenure of their fund that usually is around 4-5 years, acts as a deterrent to take any open position in greenfield office project. “We may not get into a greenfield office project until we launch an 8-10-year tenure fund. In warehousing and logistics, not only have we done it in the past, but we also look forward to do this, going forward. These properties can be quickly constructed as per clients’ specification within 9-12 months and also offer 250-300 basis point higher returns compared to buying a pre-leased asset,” said Sandeep Chadha, partner at Milestone Capital Advisors.

In the backdrop of an ongoing transformation in business environment, Indian real estate is witnessing a robust rise in investment inflow as both foreign and domestic institutional investors are infusing more funds into the sector. Private equity investment into Indian real estate in 2017 is about to set a new milestone estimated to exceed $4 billion this year, well past the 2015 mark of $3.6 billion, the highest since 2010, a recent Knight Frank report showed.

The rise in investment flow is backed by long-term institutional investors’ confidence owing to rollout of a battery of reforms including the Real Estate (Regulation & Development) Act, 2016 (RERA) and relaxation of norms to encourage Real Estate Investment Trusts (REIT) listings.

Source – Economic Times