Saturday 2 August 2014

OWNERSHIP OF IMMOVABLE PROPERTY


The possession of immovable property is recognized beneath varied laws.  Before dwelling upon the rights and interest in immovable property, we tend to shall perceive what immovable property is.The Transfer of Property Act 1982 doesn't outline the word immovable property thoroughly, what mentions it as “immovable property doesn't embody standing timber, growing crops or grass”

General clauses Act defines unmovable property,“which includes land, advantages that arise out of the land and things connected to the world. The words “attached to the earth” has been in an elaborate way delineated in Transfer of Property Act that embody following;
1. Rooted within the earth as just in case of trees and shrubs;
2. Imbedded within the earth as just in case of walls or buildings or
3. Connected to what's thus imbedded for permanent helpful enjoyment of that to that it's connected.However, we tend to should keep in mind that it doesn't embody standing timber, growing crops or grass.

The Karnataka Stamp Act defines immovable property as “includes land, buildings, right of how, air rights, development rights, whether or not transferable or not, advantages to arise out of land and issues connected to the world or for good mounted to anything connected to the world. However in common expression immovable property means that land, buildings, things for good attached to the land.

 Rights
The word right features a wide which means. it's which supplies powers to the person same to own rights to try and do one thing, act, or to not do such issue, act, in reference to his property which can be unmovable or movable. The proper square measure of various sorts.

The most important is “Right in Rem”.  This right is on the market against the complete world.  Next is “Right in Personam”, that is on the market against a nominative person, or group or cluster of persons. However this is often not obtainable, enforceable against the complete world.The owner of any property has right, that is recognized by the laws of the land and guarded beneath such laws.

Interest
The other most often used word in property dealings is “interest”. It’s a right obtainable against the whole world, once it's related to some property, land, building, unmovable and movable.It transferable beneath modes recognized bylaw and is also monogenic.Such interest is recognized and guarded beneath law.

The interest could also be vested, contingent or absolute.Vested interest is an interest in property enforceable by an individual at the present or in future date connected to happening of bound nominative event.Such unconditional interest is monogenic and transferable.

Whereas contingent interest is an interest available solely on future date and not at the present, that is subject to happening of some unsure event.In unconditional interest the happening of the event is definite, wherever as in contingent interest it's unsure, therefore contingent. Because the interest is contingent, it's not transferable or inheritable. However on happening of such unsure event, the contingent interest becomes unconditional interest, once it's transferable and inheritable.

Title
The word title that a owner has over the property could be a right and interest within the property. The title has got to be established and proved.The title is additionally transferable and monogenic.

Ownership
The possession is an amalgam of rights, interest and title that is recognized and guarded rule. In straightforward words it's right obtainable against the whole world. Such right has no riders, restrictions on purpose of user and point of length. The word absolute possession could be a bundle of rights connected to some specified property. It consists of following rights.

The list is simply illustrative and not exhaustive;
1. Possession and occupation.
2. Use and enjoy.
3. Alienation by modes recognized by law in favor of any person/s with none restrictions.
4. Alteration of the property, structure, consume, destroy, repair, reconstruct, hypothecate, mortgage, lease and to use the property as security to borrow funds.
5. Gift, transfer by can, creation of trust.
6. The right could be a right in rem available against the complete world.
7. the right is unrestricted in length of your time and use.
However, these rights square measure subject to varied laws like Land Reforms Act, Land Revenue Act, planning Act, and alternative  laws.

Other kinds of ownerships
Apart from absolute possession,there square measure alternative kinds of ownerships that square measure restrictive in nature.In restrictive possession, bound rights elaborate beneath absolute possession square measure restricted or not obtainable surely nominative time.

Co-ownership
More than one person might jointly own constant property. Each the persons have equal or bound share of rights to possess and revel in the property. One necessary ingredient of co-ownership is undivided share.Although all the house owners own equal or a locality of the complete property their various shares don't seem to be physically determinable with definitive boundaries.  The shares square measure undivided.Just in case four persons own a property of 1200 sqft, every persons share is three hundred sqft.This three hundred sqft is any a part of the building property and isn't confined to specific space. this is often known as undivided share within the property.

Share of the co-owners within the property needn't essentially be equal.  It depends on their share, investment within the property as elaborate in purchase document. Within the absence of any such details on the share of investments created for acquisition of property in purchase document, it's likely in law, that each one the co-owners have equal undivided share of interest, right and title within the property as per section forty five of Transfer of Property Act.

It is continuously sensible to clearly mention the share of investment of every co-owner within the property and their undivided share in right, interest, and title within the property for the aim of alienation, inheritance and taxation.The Co-owners share within the property is monogenic, transferable.The conception of this co-ownership is commonly termed as “Tenants in common” in legal expression.

Joint residency 
This is totally different from Tenants in Common or Co-ownership.  In Co-ownership, the legal heirs succeed to the proper and title of the deceased co-owner.

In Joint residency, the opposite Joint owners succeed to the proper of the deceased joint owner and not his legal heirs. This idea isn't in apply in India, unless specifically created bound in documents.Within the absence of any such specific reference the court presumes the possession as ‘Tenants in common’, and legal heirs succeed to the share of the deceased joint owner.

Dual possession of land and building
Many owners of land lease the land property to others for long lease.  The terms of lease conjointly offers right to the renter to construct buildings and revel in the advantages of such buildings on hired lands. This apply has led to dual ownership of land and building.The land is owned by one person and also the structures on it are owned by alternative person.The terms of lease conjointly stipulate, whether or not the possession of the building can get transferred to the lesser, owner of the land, freed from price on expiration of the lease amount or has got to acquire acquisition of such structures.  The tax Act recognizes the dual ownership conception and also the owner of the building is taxed for the financial gain received from the property.

Ownership by half performance
In sale and buy of unmovable property, the parties typically enters into a sale agreement detailing the terms of contract;the registration of sale deed is finished anon completion of performance of duties by the parties as elaborate in sale agreement. Sometimes the vendor receives major portion of thought, and hands over the vacant possession of the property to the buyer unfinished registration of sale deed.This is often known as half performance. The buyer / transferee who are in possession of property gets, evenhanded title over the property. This is often recognized beneath section fifty three A of the Transfer of Property Act.Even within the absence of registered sale deed, and although legal title isn't given on buyer / transferee, the rights of the buyer / transferee is secured against the vendor or anyone claiming through the vendor. The sole remedy obtainable to the vendor is to file a suit for payment of balance sale thought.

The wants of half performance as elaborate in Section 53A square measure as follows;
1.There should be a contract like sale agreement, etc., in writing containing the main points of contract together with the delivering the vacant possession of the property to the buyer, signed by the vendor.
2. The contract shall be for transfer of immovable property for thought.
3. When the contract is entered the vendor has place the buyer in possession of the property and also the buyer has taken the possession of the property partially performance as per the terms of contract.
4. The buyer has done one thing in pursuance of the contract like payment of thought or has performed or willing to perform his part of contract.

However, this evenhanded right derived from half performance is on the market solely against trafficker or anybody claiming beneath or through him. however the provisions of this section does not have an effect on the rights of person, who purchased the property for thought, who has no notice of contract or half performance. Evenhanded rights of transfer by half performance square measure recognized by the tax Act 1961, and conjointly for Capital Gains and half performance constitute transfer as defined in income tax Act.

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