The possession certificate is issued by the authorities and shows the change in the possession of the property. The possession certificate should indicate that the possession of the property has been transferred to the buyer. It also indicates that the buyer has a complete interest in the property. The certificate needs to be signed by both the parties, i.e. the builder should sign stating that the possession of the property has ceased in his hands and the buyer’s signs stating that the possession of the property rests with him now.
The possession certificate contains the description of the property and also other add-ons such as the parking lot, space, garage, etc., according to the terms of the contract. The possession certificate should also contain the date on which the possession of the property is being transferred. It is an authentic document that may be written.
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How hard is it to prove adverse possession?
The person who has acquired or possessed the property for a period of more than 12 years without being disputed by the owner, becomes the legal owner of the property and this is called the adverse possession. The provisions relating to adverse possession is mentioned within the Limitation Act, 1963. In cases of government properties, this period is 30 years. To establish the person’s claim over the property he has to prove that the owner has not disputed the possession of the property for the specified period and that he is the sole person in possession of the property. The period cannot be divided into two halves.
The person acquiring the property through adverse possession is also not under any duty to inform the original owner of the property about his intentions to acquire the property and the true owner must ensure that there are no illegal residences at occupying. This rule does not apply in cases of the real owner is a minor or those in the military. The Supreme Court of India has recently made proving adverse possession difficult.
What if I don’t have a Possession Certificate?
The buyers at the time of purchase are encouraged to check through the various documents and obtain the same before taking over the possession of the property. The possession certificate is an important document that establishes the possession of the property legally. It is also important to acquire a bank loan and for availing tax benefits. It may also be required during the sale of the property. You may also be at a disadvantage as the buyer won’t be able to avail of a bank loan without the possession certificate.
He is also not entitled to the various tax benefits due to the lack of a possession certificate. In the absence of the property, the person may not be in the legal position to use the property as he has not acquired the possession of the property legally. He will also not be in a position to transfer the right of ownership of the property. The lack of the possession certificate shows that the property is still in the possession of the builder and that the buyer of the property is in illegal possession of the property. This gives the civil authorities the right to ask the buyer to vacate the property.
What impact does Section 44 and 53A of the Transfer of Property Act have on the possession certificate?
After the introduction of the Real Estate (Regulations and Development) Act in the year 2016, compliances have been made according to this law. The Transfer of Property Act is also applicable in case of any transfer on the immovable property. On the failure of the builder or seller to provide the necessary documents that are required for the transaction, a complaint or grievance can be filed with the RERA authority which may result in action against the party.
Section 44 of the Transfer of Property Act, deals with the transfer of the property made by the co-owner of the property. The section also deals with the transfer of a part of the property in case of an undivided family, dwelling in the property. The section mandates that the person who is making the transfer of his share in the property should be a member of the family that is currently dwelling in the property. If the person making the transfer of the property is not a member of the family, then he can only transfer the title of the property and not the possession of the property.
Part performance is dealt with under section 53A of the Transfer of Property Act. In cases of the part performance, the buyer of the property acquires the property as part performance. The builder of the property is bound by the part performance and cannot go back on the promise. He should also be ready to deliver the complete possession of the property when demanded by the buyer.
Since the possession has been acquired partially, the buyer is also eligible to make an application for the issuance of the possession certificate. The builder is also on the duty to deliver all the documents of the property along with the occupancy and completion certificate while the complete transfer of the property is being made. Section 53A also emphasizes the importance of registering the properties according to section17 of the Indian Registration Act.
Thus summing up it is to be stated that a possession certificate is proof of a person’s legal possession of the property. The possession certificate contains various vital information as the name of the person who transfers and also the name of the person to whom the property is transferred along with their signatures. The certificate also includes the details of the property along with the additional facilities that have been promised to the buyer.
If the property has been possessed without any legal authority by a person for a period of more than 12 years in cases of private property and 30 in case of government property, then that person may be granted the legal possession of the property under the Limitation Act based on the concept called as adverse possession. A possession certificate is an important document and in the absence of it, the buyer may face many repercussions.
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