India: Transfer Of Title Of Promoter Under RERA

Last Updated: 7 August 2017
Article by Manisha Paranjape

The Maharashtra Real Estate Regulatory Authority ("the Authority") has on 27th June, 2017 issued an order ("Order") stipulating that a promoter has to execute conveyance to transfer his title, in relation to all agreements executed post 1st May, 2017, within three months from the date of issue of the occupancy certificate.

Before dealing with the Order, let us analyse the provisions in the applicable laws in Maharashtra that today relate to execution of a conveyance to transfer promoters' title to flat purchasers.

Section 17 of RERA

Section 17 of the Real Estate (Regulation and Development) Act, 2016 ("RERA") provides that the promoter of a project shall -  (i) execute a registered conveyance deed in favour of the allottee along with the undivided proportionate title in the common areas to the association and (ii) hand over possession of same to the allottees and the common areas to the association of the allottees, in a real estate project, and the other title documents pertaining thereto - within specified period as per sanctioned plans as provided under the local laws.

The proviso to Section 17 then states that in the absence of any local law, conveyance deed in favour of the allottee/ association /competent authority, as the case may be, shall be carried out by the promoter within three months from date of issue of occupancy certificate ("OC").

In terms of Section 17 of RERA, title is to be transferred within specified period under local laws. It is only in the absence of local laws, that a time limit of three months from date of issue of occupancy certificate is prescribed.

Thus from a reading of Section 17 of RERA with its proviso, it is clear that promoters are bound to execute and register the conveyance deed in favour of the allottee/association within the period provided under local laws. In the event there are no local laws prescribing such period, an outer timeframe of three months from the date of issue of OC has been stipulated.

What are 'local laws'?

The term 'local law/s', despite being used several times in RERA has not been defined.

It is pertinent to note that prior to RERA being brought into force, several state legislations were already in effect on the same subject. Apart from the Maharashtra (Regulation and Development) Act, 2012, none of these state laws have been repealed by RERA and thus they continue to remain in force. Even in Maharashtra for example, although the aforesaid Act (which was never entirely brought into force) has been repealed, the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Act, 1963. ("MOFA") and the Maharashtra Apartment Ownership Act, 1972 ("MAOA") have not been repealed and continue to be in force.

MOFA and MAOA are still in force and continue to be in effect

On the other hand, appropriate Governments (which includes the governments of states/union territories), under Section 84 of RERA, are empowered to make rules for carrying out provisions of RERA. In accordance therewith, several states have already notified rules. Maharashtra has inter alia notified the Maharashtra Real Estate (Regulation and Development)(Registration of real estate projects, Registration of real estate agents, rates of interest and disclosures on website) Rules, 2017 ("Maharashtra Rules")

Thus arises the question, does the reference to 'local laws' in Section 17 refer to the extant local statutes already in force pre-RERA or does it refer to the rules made by the respective state governments under RERA?

Let us examine the provisions relating to conveyance by the promoter in the three statutes referred to above- MOFA, MAOA and the Maharashtra Rules


In terms of Section 11 of MOFA, a promoter has to convey his right, title and interest in the land and building to the organisation of flat purchasers in accordance with the agreements entered into with the flat purchasers.

Only if no period for the execution of the conveyance has been agreed upon between the promoter and the flat purchasers, then Rule 9 of the Maharashtra Ownership Flats (Regulation of the promotion of construction, sale, management and transfer) Rules, 1964 ("MOFA Rules") provides that the promoter is bound to execute the conveyance in favour of the organisation of flat purchasers within four months from the constitution of the organisation of the flat purchasers.

Thus MOFA permits a promoter and flat purchasers to mutually decide the timeframe for execution of the conveyance and prescribes a period for the same only in the absence of such mutual agreement.


Under the MAOA, each apartment owner is entitled to the exclusive ownership and possession of his apartment together with its undivided interest in the common areas and facilities appurtenant to the apartment. Rule 5 of the Maharashtra Apartment Ownership Rules, 1972 ("MAOA Rules") provides that all transfers by the owners of the property to an apartment owner shall be by a Deed of Apartment. While Section 4 of MAOA provides that each apartment owner shall execute a Deed of Apartment, neither MAOA nor the MAOA Rules prescribe a period for the same. Rule 9 of the MOFA Rules however stipulates that where a property has been submitted to the provisions of MAOA and no period for conveying the title of the apartment to the apartment taker has been agreed upon, then the promoter shall execute the deed of apartment in favour of the apartment-taker within 4 months from the date the apartment-taker has taken possession of the apartment.

Thus even under MAOA, a promoter and a purchaser of an apartment are free to mutually agree on the period in which the promoter is to convey title of the apartment to the apartment-taker.

Maharashtra Rules notified under RERA

Rule 9(2) of the Maharashtra Rules notified under RERA deal with transfer of title under Section 17 of RERA.

In case of a single building project, in terms of Rule 9(2)(ii), only if no period for conveying the title to the legal entity of the allottees is agreed upon, the promoter is bound execute conveyance within three months of (i) date of issue of the OC or (ii) payment of full consideration by 51% of total allottees, whichever is earlier.

In case of a larger layout consisting of more than one buildings, in relation to conveyance of title of a building or wing, only if no period for conveying such title to the legal entity of the allottees is agreed upon, the Promoter is to execute the conveyance of the structure of that building or wing within either (i) one month from the date on which the Co-operative society or the company is registered or association of the allottees is duly constituted or (ii) within three months from the date of issue of OC, whichever is earlier.

Similarly only in cases where there is no agreement on the period for conveying the title of the Promoter in respect of the entire undivided or inseparable land underneath all buildings/ wings along with structures of basements and podiums constructed in a Layout, the Promoter is bound to execute the conveyance of the entire undivided or inseparable land underneath all buildings jointly or otherwise within (i) three months from the date on which the Apex Body/ the association of the allottees is duly constituted or (ii) within three months from the date of issue of OC to the last of the building or wing in the layout, whichever is earlier.

Thus under the Maharashtra Rules too, a promoter can agree on the time limit within which he is to convey title to the association allottees of the building/s and the underlying land.

It is therefore clear that all the state laws in force in Maharashtra specifically deal with transfer of title and permit the promoter and the allottee to mutually decide a time period for such transfer and it is only failing such agreement that a timeframe is statutorily prescribed.

MOFA, MAOA as well as the Rules notified by Maharashtra under RERA all permit a promoter to agree upon a time period for conveyance of land/building with flat purchasers. Timelines are stipulated only for cases where such a time period has not been earlier agreed upon.

It thus seemed rather evident that the time frame of three months from the date of OC as  provided in RERA, which in terms of RERA itself is to be resorted to only in cases of absence of local laws on the subject, would not be applicable in Maharashtra as the local laws (whether they be interpreted as the rules formed under RERA or the existing state laws) provide for such transfer of title and prescribe that the time periods for the same may be agreed upon by the parties in question.

Confusion caused by the Order

The Order briefly summarises the contents of Section 17 and correctly records that in terms thereof, in the absence of local law, the conveyance deed shall be executed by the promoter within three months from the date of issue of OC.

It then goes on to reproduce the provisions of Rule 9 (2)(iii) of the Maharashtra Rules (interestingly, only of the portion that deals with a building in a layout and not those relating to single building projects or conveyance of the land in a layout!).

The Order then goes on to highlight, what the Authority possibly perceives as an inconsistency - that the Model Form of Agreement under the Maharashtra Rules states that the conveyance of title has to be effected within three months of registration of the legal entity of allottees.

In relation to this, it must be noted that the model form is only a format and the Maharashtra Rules make it clear that the promoter is free to modify the same as long as the same is compliant with RERA. Secondly the Model Form seems to be in line with the Rules as well as the MOFA, both of which contemplate that the period for the conveyance can be mutually agreed.

The Order then states that RERA has overriding effect in terms of Section 89 which states that RERA will override all inconsistent provisions of other Acts in force. The Order then states that thus RERA is applicable to all agreements for sale executed post the 1st of May, 2017 including those of projects that do not require registration. While it is certainly true that RERA would apply to agreements of all projects which are to be registered with the Authority, it is highly debatable whether RERA applies to agreements of projects which have already received occupancy and completion certificates. For example, "Real Estate Project" has been defined as 'development' of a building for the purpose of selling all or some of the apartments therein. Once a building has been given an OC, it is quite clear that the development of the same is over and it would therefore not fall within the definition of real estate project.

Authority states that agreements to sell flats post May 1st 2017 in all projects (including those which have received OC) are subject to RERA

The Order then states that the Maharashtra Rules are subsidiary to the main legislation of RERA which of course is not in doubt. However this leads the Authority to conclude that all agreements executed post 1st May, 2017 are governed by Section 17 of RERA and the conveyance in respect thereof should be executed within three months of the date of issue of OC as set out in Section 17.

This clearly is an erroneous reading of Section 17 of RERA as the Section itself states that the transfer of title is to take place within the period prescribed by local laws. It is only in the absence of local laws that the time period of three months from the date of the OC has been prescribed.

When Section 17 of RERA itself makes local laws applicable to compute time period for transfer of title, it is unclear how the Order can make the provisions of MOFA/Maharashtra Rules inapplicable.

It must be noted that RERA has not repealed MOFA. RERA has overriding effect only in cases of inconsistency. There is nothing inconsistent in Section 17 of RERA and MOFA, as RERA itself requires the promoter to act in accordance with local laws.

It is unclear why the Authority has completely disregarded local laws very much in force in Maharashtra and which still govern all projects in Maharashtra, to the extent such laws are not contradictory to RERA.

Even if 'local laws' are interpreted by the Authority to mean the Maharashtra Rules, it is not clear as to why the provisions therein are completely ignored when the substantive section in RERA itself permits promoters to adhere to such state statutes. 

Such an order which appears to unfortunately ignore explicit provisions made in RERA itself, although in the nature of a clarification, is in fact leading to unnecessary uncertainty in a sector where everyone involved – be it promoters, consumers or lenders - are already grappling with transitioning to a new regime.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions