Can a Housing Society Get Deemed Conveyance Without the Builder?
Many housing societies in Maharashtra face significant challenges in securing legal ownership of their properties due to uncooperative builders. When a builder refuses to sign necessary documents, does not respond to notices, or may even be untraceable, society members often wonder: can they still acquire deemed conveyance without the builder's participation?
The quick answer is yes. A housing society in Maharashtra can obtain deemed conveyance even if the builder is unwilling or cannot be located. The provisions under the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) Act, 1963 (MOFA) allow for this unilateral and statutory remedy, specifically designed for situations when a builder or promoter fails to execute a conveyance deed.
The deemed conveyance process does not require the builder's consent; it is an application made to the Competent Authority appointed under MOFA, which has the powers to order the transfer of title.
Understanding Deemed Conveyance
Deemed conveyance serves as a legal mechanism for housing societies that have waited too long for a builder to execute the necessary conveyance. Under Section 11 of MOFA, a builder is required to execute the conveyance deed within four months after obtaining an occupancy certificate. This period was reduced to three months by the Maharashtra Ownership Flats (Regulation of the Promotion of Construction, Sale, Management and Transfer) (Amendment) Act, 2021. If the builder fails to do so, the society may apply for deemed conveyance.
Reasons for Builder Non-compliance
Builders fail to execute conveyance for various reasons:
- Outstanding dues claimed against the society
- Encumbrances on the property
- Desire to maintain control over redevelopment
- Possible dissolution or disappearance of the builder's entity
- Financial difficulties or simple neglect
Regardless of the reasons, the law provides a path for housing societies to assert their ownership rights without needing the builder's signature or cooperation.
Legal Framework for Deemed Conveyance
Deemed conveyance is primarily governed by the following legal frameworks:
Maharashtra Ownership Flats Act, 1963 (MOFA): This Act requires builders to transfer the title to flat owners and provides for deemed conveyance if they fail to act.
Maharashtra Cooperative Societies Act, 1960: This Act empowers cooperative societies regarding property ownership.
Maharashtra Stamp Act, 1958: This Act applies to property transfer tax provisions relevant to deemed conveyance.
Application Process for Deemed Conveyance
The application process for deemed conveyance involves several key steps:
The society submits an application to the local Competent Authority under Section 11A of MOFA with proper documentation.
The Competent Authority then issues a public notice, inviting objections from the builder or any interested parties. The builder's presence is not required, as the process is meant to proceed even if they do not respond.
The authority examines the application, documentation, and any objections before making a decision.
If satisfied, the Competent Authority grants deemed conveyance and issues a Deemed Conveyance Certificate, which must be registered to transfer the title legally.
Essential Documents Required
The housing society must compile a robust set of documents to support its application, typically including:
- Society registration certificate
- Bye-laws of the society
- Membership list
- Resolution authorizing the deemed conveyance application
- Original title documents, if available
- Agreements for sale or development agreements
- Occupancy and/or completion certificates
- Notices sent to the builder demanding the execution of the conveyance
Should the builder be untraceable, the society must provide an affidavit detailing attempts to locate the builder and include any available public records.
Challenges and Objections
Should the builder or other parties file objections against the application for deemed conveyance, the following common objections might arise:
- Claims of outstanding dues
- Allegations of unmet construction obligations
- Title defects noted in property records
- Pending litigation affecting the property
The Competent Authority will consider these objections. The society is typically given the chance to respond, and the decision will hinge on the merits presented.
What If the Builder Cannot Be Traced?
In cases where the builder has vanished or dissolved their company, the society can still pursue deemed conveyance. Key steps include:
- Making reasonable efforts to locate the builder
- Sending notices to their last known address
- Issuing public notices
If these measures confirm the builder's absence, the society can then file for deemed conveyance without further delay.
Litigation and Encumbrances
Pending litigation involving the builder does not necessarily preclude deemed conveyance. However, if there is a court order that restrains title transfer, the Competent Authority may refrain from proceeding until it is resolved. Similarly, if the property faces encumbrances—such as mortgages—these must be cleared or consented to by lenders before a title can be transferred to the society.
After Granting of Deemed Conveyance
Once a Deemed Conveyance Certificate is granted and registered, the housing society obtains legal title to the property. This allows the society to manage, redevelop, or mortgage the property as needed. It officially becomes the legal owner, with no remaining rights for the builder.
Conclusion and Next Steps
Housing societies in Maharashtra can proactively seek deemed conveyance without reliance on uncooperative builders. By following the legal framework established under MOFA, compiling the necessary documentation, and adhering to procedural requirements, societies can secure their property rights effectively.
Recommendations for societies facing these issues include:
- Collecting all relevant documentation.
- Filing a complete application with the local Competent Authority.
- Be prepared to respond to any objections or challenges from the builder or other stakeholders.
If needed, consult with a legal professional to navigate the complexities of the deemed conveyance process efficiently.
