Banks Can Come After Your Assets If The Builder Defaults


reduce-the-tax-on-property-rentalLet’s say you’ve taken a loan for a house on the 10th floor of a building, under construction. Let’s say you’ve gone for the 80:20 scheme, where you’ve paid 20% and the builder says he’ll pay the EMI on the 80% until construction is complete. Let’s say that the builder runs out of money – maybe because interest rates are too high, maybe because he couldn’t sell the remaining flats, or maybe because of the Realty Ponzi scheme.

Either ways, he throws up his hands and says he can’t finish the property. Six months pass, and there’s no sign of any action. The bank now says you have to pay the EMI on the 80%. What happens now?

Many people believe the bank should take over the property and recover the money, and your EMI is no longer applicable. This is a gross misunderstanding.

You are fully responsible for the loan repayment.

Remember, the builder has taken his money. The bank has given it. The loan was given to you, not the builder, against your earning capacity and the collateral of the property.

When the builder was paying the EMI, the bank didn’t care – it had given you a loan, but the builder was paying interest.

When the builder stops paying interest, it will ask you to pay instead.

If you decide not to pay, the bank will attempt to sell the property. It is unlikely that people want to pay full price for a stalled project, and there will be a shortfall (auction amount could be less than the total loan). You have to now make up the difference, immediately, including all interest accrued in this sale/waiting period.

If you do not, you will be labelled a defaulter under CIBIL. (You might already be notified before the bank attempts to sell). This affects your ability to get a loan in the future.

And then, the bank can go after your other assets under the SARFAESI act. This includes all possessions you own like a car, another property or such. Further if the loan is taken jointly in the name of your wife or parents, their properties too are at stake. Personal/Home Loans in India are “full recourse” , where the bank or financial institution has full recourse to your other assets in case of a default.

The only thing a court cannot attach (to pay back such a loan) is your Provident Fund (PF) account. (I may not be legally up to date on this, though)

This applies to 80:20 loans (where the full amount has already been disbursed) and to regular home loans (where only partial disbursement has happened). This also applies to loans where you have been paying the EMI – you are still responsible for the rest of the loan.

Your options are to “settle”, hoping that the bank doesn’t want to go through the long legal process. The other option is to stall through the legal process, hoping that this will just go away, considering the extreme delays in our legal system. (This will still impact your CIBIL score) Since technically the builder defaulted to you, you have to take legal action against him for any further recovery.

(In one such case, a builder in Kolkata defaulted on a 176 cr. loan, and the bank is likely to take over the project and sell the flats. The case is still evolving.)

What this means is: Do not assume your responsibility ends if the builder defaults and bank takes over the house. You have a liability to pay anyway, your other assets can be attached and you will get a hit on your CIBIL score.

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Real Estate Bill- How it will help home-buyers


The much awaited Real Estate Bill, which aims to protect the interests of buyers and bring more transparency to the sector was on Thursday passed in Rajya Sabha.The bill was first introduced in 2013 and amendments have been made to it by the present government.

 The Finance Ministry in 2012 paper on black money had pointed out that the real estate sector is vulnerable to black money because of under-reporting of transactions.
Here are some important features of the bill:

Better organised real-estate sector

The real-estate sector in India is unorganised which leads to various discrepancies in the functioning. The bill will establish state-level authorities called Real Estate Regulatory Authorities (RERAs) which will regulate transactions related to both residential and commercial projects. The authority will grade the projects helping customers to make better decisions.

Timely completion and hand-over

One of the problems which buyers face is that they don’t get possession of property as promised by the seller because of delayed construction among other issues. The bill ensures that 70 per cent of the money taken from buyers has to be kept aside in a separate bank account and this money can only be used for construction activities. This will ensure that the sellers don’t invest the money received from one project into another project.

Accurate information

As per the bill, it will become mandatory for sellers to disclose all information like project layout, approval, land status, contractors, schedule and completion of project with customers as well as the RERA.

Appropriate punishment

If the developer fails to hand-over the property to the buyer on time, then he would be liable to pay same amount as interest which he is charging from the buyer on delay in payment. Also, the property cannot be sold on the basis of ‘super area’ which includes both flat area and common area. If the developer violates the orders of appellate tribunal, then he/she can get a jail term of up to three years or penalty.

Allottees association and after-sales service

It has been made mandatory to set-up an allottees association within three months of the allotment of major units/properties so that the residents can manage common facilities like a library and a common hall. Also, if the buyer finds any structural deficiency in the property, then he/she can contact the developer for after-sales service within one year of possession. The promoters or developers cannot make any changes to the plan without consent of the buyer, the bill states.

– See more at: http://indianexpress.com/article/india/india-news-india/real-estate-bill-to-be-tabled-in-rajya-sabha-today-heres-how-it-will-help-home-buyers/#sthash.StFFFPud.dpuf

Magic Bricks Now – Questions by Mr.Vishwanath – Nitesh Caesars Palace


Lawyers suggestion key points:
  1. Buyers association either registered or unregistered can represent the case. However, registration would give more benefits so  the builder is forced to talk to one identify who represents buyers benefit. Builder will naturally respond / negotiate once an association is formed.
  2. Registration can be done before Occupancy Certificate (OC)  but need to get the sale deed clearly checked line by line, by lawyer on this channel showed his suspicion of only 2 blocks ready out of 8 blocks: chances of many issues. Registration agreement needs clear scanning by lawyer to avoid future mistakes as the project isn’t complete.Buyer can register the property but do not tie registration to OC as that will clear all the uncertainty of owning the flat.
  3. Possession without OC is at builders cost. Builder is liable to bear all cost such as taxes, power, maintenance etc. Buyer can take possession if builder is giving alternate power but should be at his cost not owners.
  4. Maintenance agreement: There is no legal binding to sign any maintenance agreement during registration you can deny as it is one sided. Strictly No to maintenance agreement of 10 yrs..Builder cannot enforce this for signing. Demanding 1 year maintenance cost in advance is ok. Maintenance payments to be in the name of different or specific bank account. Need not pay more than 1 year.
  5. Arbitration clause is not applicable for filing case in consumer court. There is only consumer court for this issue and can be through association and effective through association rather individual. Interim relief for completion of amenities/services can be claimed at consumer forum.

Social media activism against builders and defamation suits


One of the good thing that has happened to Real Estate market in the recent past is online presense of both Home Buyers And Developers. While home buyers have been actively using social media and forums before making property related decisions, builders are using similar platforms to advertise and reach out to prospective buyers.

Understanding the potential of social media, most of the big developers started reaching out to young professionals through online platforms. From creating dedicated project pages on Facebook to twitter handles and uploading 3D videos of sample flats on youtube channels became the new fashion. A big chunk of marketing budget was being spent through PR agencies to increase online presence and trap as many buyers as they can.

After 6 years, the very same social media users are hitting back. Social media platform like Facebook, Whatsapp and twitter have come to the rescue of home buyers and have played a major role in homebuyers fight against injustice and unfair practices.

Social Media Activism

There is no denial that builders have exploited homebuyer in this country since the inception of group housing. Even the Prime Minister, Mr. Narendra Modi said:

“In our country, wittingly or unwittingly, the image of builder lobby is bad.

Prior to social media, It was very difficult for the home buyers to join hands and raise their collective voice against the unfair treatment by builders. Most of the time individuals were cornered, threatened and coerced to give up their rights.

However, all of this have changed now. Angry home buyers are no longer hiding or afraid to take on the might of developers for delaying the delivery of apartments and villas and changing building plans. They are banding together to fight for their homes using all the means at their disposal, including staging unique protests at project sites and going to court.

Most of the buyers groups have online Facebook or Whatsapp groups to easily highlight the wrongdoing of builders. In the past, most of the home buyers groups have managed to stop lot of wrongdoings of the developers and have been able to give them sleepless nights. In one of the Noida builder’s project, more than 300 home buyers got together on Facebook and filed a case of deficiency in service in NCDRC. There are host of buyer’s association who are bringing in people together in ensuring they are not cheated anymore.

SLAPP / Defamation Suits

Builder don’t like to answer a crowd as they find it easy to coerce individuals. Home buyers group have been a nightmare for them for obvious reasons. Because they find it difficult to mend their ways and do business in ethical way, they engage in something called Disreputation Management. Disreputation management is the practice of ensuring the content that a builder ddoesn’t’t like, should be removed from the web. Most of the content is usually some home buyer unearthing illegal practices of a developer.

So, to deal with the social media activism, builders have started filing a SLAPP (Strategic Lawsuit Against Public Participation) suit with the intention to silence, censor, and intimidate buyers concerned with ‘deficiency in service’ and ‘unfair trade practices.  Builders alleged that social media groups have damaged their standing and reduced business opportunities. By filing such cases, they seek crores in damages for loss of reputation and business from home buyers.

What should a Home Buyer do

Buyers are finding comfort in unity and there is no harm in being united. Social media is a great tool to ensure errant developers are brought to the task. While it is good to raise a collective voice and fight for your rights, there are few measures that home buyers and Group Admins must take to ensure builder does not engage them in defamation suits.

  • One should be factual about the content. Ensure if you are accusing builder of some wrongdoing, you have content to back your claims.
  • There is no harm in criticism but do not abuse anyone on the forums.
  • Use RTI to know the facts before alleging someone of corrupt practices.
  • Avoid posting information received from word of mouth.

Individuals should be careful while posting forward contents. After recent Nepal Earthquake,  pictures of an apartment complex labelled as noida society were doing rounds. Builder had to issue a clarification because it did not belong to their project and it was a complex in Nepal.

Should you be afraid? 

Builder’s aim by filing defamation suits is to silence the home buyers voice. If you have raised your voice against wrongdoings of the builder, there is no reason to be afraid of. Home buyers have taken a tough stand against such practices of the builder and are fighting such cases in various court. Some of the home buyers have given it back to builder’s by filing cases of deficiency in services in appropriate courts.

Legal View: 

Sahil Sethi, a lawyer defending home buyers in defamation cases says, ” it’s important to ensure that all comments made on social media complaining about a developer are fair, even if not absolutely factually correct.  Buyers should also refrain from calling names or hurling abuse on social media.”

The Logical Buyer suggests that home buyers should not bow down to such threats from builders and continue their fight against wrong practices. At the same time, one must act responsibly and should not indulge in unwarranted accusations. Home buyers association must ensure they stand by those who take the lead and raise their voice against builders.

Read more details:http://www.thelogicalbuyer.com/social-media-activism-against-builders-and-defamation-suits/

Remedy for Project Delays


Will the prices of real estate come down? Should you be buying commercial property? Is the government’s negligence of roads and potholes impacting the price of your property investment? Watch incisive debates on Burning issues of the Day. Listen to the biggest voices in the Business, Government and urban planning only on ‘The Urban Debate’.

Home builder delay may need legal action


When to take legal help

Generally, most home buyers remain in a dilemma: to file a case against the developer or not? Most don’t want to get involved in a long drawn legal process. Some are even scared of going against a builder. “The larger and less wholesome truth is that the current legal dispensation is ill-equipped and under-regulated to offer complete consumer protection in matters related to real estate,” said Anuj Puri, chairman and country head, JLL India. But, “many examples of customers obtaining favourable decisions upon approaching consumer courts exist, and the power of these forums should not be underestimated,” he added.

So, if you are an aggrieved home buyer, you should not hesitate in taking legal help. “Once the due date for possession is over, the buyer should visit the site and take stock of the situation by trying to assess whether the period of delay will be negligible or considerable. If the buyer feels that delay will be considerable, it would be pointless to wait further, and she should immediately file a case,” said Jehangir Gai, a Mumbai-based consumer activist.

You can also approach the court for other issues as well. “When it comes to deviations from the original project plan, which can result in a shortfall of common amenities or drastic changes to the units themselves, the customer should take action as soon as these deviations come to light,” said Puri.

But do remember that there is a stipulated time frame within which a case has to be filed by home buyers. “The consumer court will not entertain a complaint after the limitation period of two years is over from the date of cause of action. Hence, the consumer has to be very alert and should immediately file a case in the consumer court. Don’t keep the matter pending,” said Arun Saxena, president, International Consumer Right Protection Council. However, “with regard to real estate, since there will be a continuous cause of action, this provision (2-year timeline) may not strictly apply,” said S. Saroja, director, consumer advisory and outreach, Citizen Consumer and Civic Action Group.

There are different avenues that you can take. “A homebuyer can approach the consumer court, civil or criminal court, or the Competition Commission of India (CCI), depending on the nature of complaint,” said Saroja.

Things to do

As in any legal matter, you should posses evidence to prove your stand or allegation. Get all papers and documents ready—advertisement brochure, booking receipts with payment details, any letter sent by the developer, signed agreement, all payment details, emails exchanged, photographs collected, and others. Avoid verbal communication.

“It is important that the consumer maintains written correspondence with the builder at regular intervals during the course of construction, highlighting issues then and there, as this will be a strong point in her favour when she approaches the Consumer Fora at a later stage,” said Saroja.

However, before going for legal action, you should have raised the issue with the developer. “Buyers should always send a legal notice before approaching any forum or court with their grievance. They should have taken objection with the builder against violations or illegal demands by sending a letter so that evidence can be created in their favour to be produced at the time of proceedings,” said Pathak.

So, if you are an aggrieved home buyer, contact others and form a group. Note down the issues and information available with each person. Approach the developer as a group. If no resolution is in sight, take legal advice from an expert.

Delay of six months to a year has become commonplace in residential real estate, and most buyers expect it. But a longer delay puts additional financial burden, and filing a suit against a developer is justified.

Doors To Knock On…… Read ahead this article

 

4 Home Loan rules most of the investors don’t know about


Can you claim tax deduction for your under-constructed house? Can you claim tax for the home loan taken from your friend and not from Bank ? These are some of the questions which are not generally discussed over and lot of investors have no idea about actual rules. In the video below I will talk about four not so known rules of home loans . Keep reading ! . Readers on email can watch the video on this article.