In a property transaction, the parties involved have a number of rights, duties and obligations outlined to prevent the violation of these rights and breach of duties prior to, during and post the transaction. These rights may be specifically stated and outlined in an agreement for sale, sale agreement, allotment letter etc. to legally bind the parties to respectively perform their end of the transaction and to serve as legal records with evidentiary value.
However, there are laws like the Transfer of Property Act, 1882, also in place that state the existence of certain rights and duties for buyers and sellers in a property transaction. Section 55 of the Transfer of Property Act provides these rights and liabilities to the parties in a property transaction and are subject to a contract to the contrary between the parties.
It means that these statutory rights and duties can also be modified, added to if specifically decided upon and mentioned in a contract between the buyer and seller in a property transaction. This article seeks to highlight the rights and duties of a property seller as s/he performs his or her role in a property transaction.
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The Rights of a Seller in a property transaction
The seller of a property transacts with a homebuyer to transfer the ownership and possession rights to a residential property in the possession of the seller to the homebuyer in return for monetary consideration. There is no doubt that the seller is entitled to this monetary consideration if s/he has performed his or her end of the transaction diligently, to the best of his or her capacity and in good faith.
However, the seller is also entitled to certain rights in a property transaction which is the following:
- A home seller can decide the price she/he deems fit for selling the house in his or her possession subject to the buyer’s consent and negotiations.
- A seller can advertise the house in his possession for sale purposes.
- A seller can hire a real estate agent for representing his or her interests in a real estate transaction.
- A seller has the right to accept offers or reject them as s/he sees fit, but for legitimate reasons.
- A seller is entitled to legal representation throughout the process of the property transaction.
Other than these rights, under Section 55 of the Transfer of Property Act, 1882, there are certain rights statutorily provided to a seller:
- Until the property’s ownership does not transfer to the home buyer, if there are rents or profits or any kind of income being generated from the property, the seller is entitled to such rents, profits or income.
- Despite the transfer of complete ownership of the property to the buyer, the seller finds that there is still some dues outstanding towards the purchase money that is to be paid, the seller is entitled to this outstanding money along with interest on the money from the date such ownership or possession of the property was transferred.
If the seller has possession of property that is to be transferred to the buyer and the seller finds an outstanding amount towards the purchase consideration, s/he can hold onto such property until the outstanding amount is not remitted to him or her. However, if the property’s possession is already transferred to the buyer, then the seller can only initiate a suit to compel the buyer to remit the outstanding amounts along with interest.
The obligations of a seller in a property transaction
If a seller has certain rights in a property he is also subjected to certain obligations that ensure the protection of interests of other parties in the transaction. These obligations are:
- When conducting the sale of the property, the seller is obligated to inform the buyer of any material defects in the property of which the seller is aware. S/he should allow the buyer to conduct a home inspection if required by the buyer to do so.
- When the buyer enters into a property transaction with the seller, the buyer may insist on examining the property documents and papers which a seller is obligated to provide to the buyer without withholding anything.
- The buyer may have relevant questions about the property that should be answered by the seller honestly and to the best of his or her capacity.
- The sender should ensure that transfer of property is executed in a proper manner without any hitches when or after the buyer has paid the purchase consideration and performed his or her part of the transaction.
- If the transfer of possession of the property is all that is left to be done on the seller’s part, then until such possession is transferred to the buyer, the seller is obligated to look after the property and the documents, if any, diligently and to the best of his/her ability until the transfer to the buyer is completed.
- To deliver the property free of encumbrances to the buyer by discharging all outstanding debts and liabilities upon the property.
Generally, a seller’s obligations are subject to a contract entered into by the parties mutually, with free consent and a capacity to contract. However, many of these obligations of a seller are also provided under Acts like the Real Estate (Regulation & Development) Act, 2016, and are in place to protect the interests of home buyers and property investors.
The rights and obligations of a seller go hand in hand and are interdependent and interrelated to each other when it comes to the seller performing his or her part in the transaction. For instance, the seller is entitled to sell the property and can sell such property for a price decided by him or her subject to the buyer’s consent. This statement shows that the rights of a seller in relation to the property in his or her possession are very much present but limited by the scope of rights of the other party in the transaction and his or her duty towards these other parties.
Thus, if a seller in a property transaction is entitled to sell his or her house, s/he is obligated to inform the home buyer about the material defects of such a house and answer all the questions related to the house. If a seller is entitled to purchase consideration for the transfer of the house, the seller is obligated to ensure that the transfer of ownership is conducted smoothly to the buyer. Thus, if a seller has a right in a property transaction, s/he has a corresponding duty or obligation towards the other parties in a transaction.
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