BANGALURU BRANCH OF SIRC OF ICAI

23-09-2020

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Overview of Real Estate

(Regulations & Development)

Act, 2016

Presented by CA.Ramesh Prabhu, Chairman,

MahaSeWA/ 09820106768

Tel: 022-42551414/ [email protected]

BANGALURU BRANCH OF SIRC OF ICAI

23-09-2020

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LAWS EVOLVED IN PROPERTY TRANSACTION

• Contract Act 1872 –General

• Transfer of Property Act,1882

• Indian Stamp Act, 1899

• Registration Act, 1908

• Cooperative Societies Act 1912

• Mah.Ownership Flats Act, 1963

• Consumer Protection Act 1986

• Real Estate(Reg & Dev ) Act, 2016

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10th Feb’15Major

Amendments from Cabinet

1963MOFA

2012MHRA

2013 & 2015

Birth of RERA

10th March’16Rajya Sabha

passes the Bill

15th

March’16Lok Sabha passed the

bill

25th March’16Ascent of President

26th March’16Published in Gazette of

India

24th April’17MahaRERA rules

by Govt. of Maharashtra

(48 regulations)

20th April’17MahaRERA

rules by Govt. of Maharashtra

(23 rules)

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WHY THIS Act IS REQUIRED..??

HIGHLY UNREGULATED

NO TRANSPARENCY

NO INFORMATION

NO EASY REDRESSAL

DELAY in POSSESSION

NO OC & BCC

DEMAND IN CASH

?

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WHY THIS Act IS REQUIRED..??

NOT FORM SOCIETIES & NO CONVEYANCE.

NO AGREED AMENITIES

NO MAINTENANCE ACCOUNTS

SELL PARKING & OPEN SPACES

FRAUD & CHEATING

NO APPROVED PLANS, TITLE

DEED

FLAT SOLD AT SUPER BUILT UP

?

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CONSTRUCTION

THE REAL ESTATE (REGULATION &

DEVELOPMENT) 2016

Applicable

All Over

India

Related to

Owning / acquiring

Rights

Concerned

with construction

All the connected

Central & State

Law applicable

Freehold Rights Leasehold Rights

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Protecting Consumer

Interest

Transparency and Efficiency

1 2 3

4

Regulation & Development

APPELLATE TRIBUNAL

OBJECTS

Regulatory Authority

OBJECTS OF THE REAL ESTATE(R &D) ACT, 2016

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Intro: The Real Estate (Regulation and Development) Act, 2016

The Central and state Govt to notify the Rules in six months and Establish the Real Estate Authority & Appellate Tribunal in 1 yr.

Regulator: RERA- To register RE projects, RE Agents, Monitor, supervise, redress disputes, Control & protect all stakeholders.

The law is not Retrospective but applicable to all on going projects and new projects- Commercial, residential, plotting etc..

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MOTHER OF REAL ESTATE DEVELOPMENT LAW -

Real Estate (Regulation &Development)Act, 2016

Applicable All OverAll Over IndiaExcept J & K

Related to Owning / acquiring

Rights

Concerned with :(1) Apartments

(2) Plotted development(3) Buildings

Implemented through All the connected

Central & State Law applicable

Freehold Rights Leasehold Rights

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APARTMENTS = INDEPENDENT UNIT/FLAT

Provided or agreed to be provided by the PromoterTo the Purchaser for a Consideration

Residential Flat

Shop Garage BunglowIndustrial

Gala

Row HousesAny Constructedor to be Constructed Structure

OfficeOffice

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FUNCTIONS OF RERA

Administrative

(Sec. 25)

Judicial

(Sec. 31,36, 37 & 39)

Advisory

(sec. 32 & 33)

Executive

(Sec. 40)

Regulatory

(Sec. 34 & 35)

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PARTIES ACCOUNTABLE UNDER RERA

LAND OWNER

DEVELOPER

Architect

Engineer/ Contractor CA

Competent Authority

Estate Agent / Advertisement

Customer

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PARTIES ON WHOM OBLIGATIONS ARE MADE APPLICABLE under RERA

1. Individual, 2. Firm. 3. Company, 4. Assn of Persons,5. Govt., 6. Semi Govt. 8. Local Authority 9. Trust10. Society – u/SRA, 11. Co-operative Society u/ MCS of MSC12. LLP or any other person or group of persons.

PromoterAllotees

(Flat Buyer/s )

Land OwnerBuilder / Developer

Single Group

RE Agents, ProfessionalsContractors and other

Agencies Connected with RE Projects

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THE SALIENT FEATURES OF THE RERDA-2016

To Establish a Regulator

Accreditation

Mandatory public disclosure norms

Obligations of promoters

Obligation of allottee

The Authority to act as the nodal agency

Powers to make Act, Rules, Regulations ,Direction etc

Dispute resolution mechanisms

Penal provisions

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SALIENT FEATURES OF THE ACT

Real Estate Project Registration

Real Estate Agent Registration

Filing of Complaints

Financial Discipline

Transparent & Consumer-oriented

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REGISTRATION OF REAL ESTATE PROJECT AND REGISTRATION OF REAL ESTATE AGENTS

REGISTRATION

NEW PROJECT-

Sec 3(1)

ONGOING PROJECT

Prov to Sec 3(1)

REAL ESTATE AGENTS

Sec 9

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U/S. 3 COMPULSORY REGISTRATION OF REAL ESTATE PROJECT

FOR DEVELOPMENT OF ANY IMMOVABLE PROPERTY IN PHASES

OR OTHERWISE And All Pending Projects where OC is not received within 3 months And New Project

before offer for sale.

REGISTRATIONEXEMPTED

AREA DOES NOT EXCEED 500

SQ.METERS OR Less than 8 Units

All Completed Projects Where OC is Granted.

RENOVATION OR REPAIRS WHICH

DOES NOT INVOLVE REALLOTMENT& MARKETING

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U/S. 4 DISCLOSURE OF INFORMATION BY THE PROMOTER

By Registration of the Project for development of immovable property in specified form by paying prescribed fees and by submitting

information.

No & Size of Layout, phases

Proposed Project &facilities

Approvals for each

phase

Declaration by

Promoter

He has Title & land is free from Encumbrances &

Specimen of Agreement for

sale Conveyance deed Allotment

letter etc

Project to beCompleted

as per Terms Of Registration And schedule of completion

Project to be CompletedWithin the

period Of sanction by

Competent Authority

70% of Realized amt to be deposited

in a separate a/c In Sch. Bank For meeting cost

Of project

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U/s 5 GRANT AND U/s 6 EXTENSION OF REGRN

REGISTRATION

u/s 5(1) (a) : GRANT

REGISTRATION WITHIN 30

DAYS

U/s 5(2) Deemed

Registration after lapse of

30 days

U/s 5(1)(b) Reject the

registration within 30 days

U/s 6 Extension for

a period of one year

(1)provide a Registration number,(2)Login Id and password for accessing

the website (3)Period of Registration: As provided

by the promoter

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U/S. 7 RECOVACTION OF REGISTRATION OF REAL ESTATE PROJECT

On complaint by any Stakeholders

Debar thepromoters

From Execution &Accessing Website

Declare as

Defaulter

And

Display

Photographs

In All States

Website.

Freeze the Dedicated account and

Transfer the

balance

To complete the

project

Suo moto based on any information, Audit Report etc

U/s8 :Consequence of Revocation or Lapse

Complete the

Project

by the associationof allottees or

in any other

manner.

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U/S. 9 COMPULSORY REGISTRATION OF REAL ESTATE AGENT & U/s 10 Functions.

U/s 9 No unregistered Real Estate Agents shall facilitate sale of

registered projects with RERA.

U/s 10 Functions of Real Estate

Agent

Not to Facilitate sale

of unregistered

projects

Maintain the

books of a/c

Facilitate for all

information & Docs

Not to involve in any unfair

trade practices.

Any other functions prescribe

d

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OBLIGATIONS OF PROMOTERS :

Sec-3

• Register the project with the authority before offer to sell.

Sec- 4

• Upload 5 yrs track record and project details on website.

Sec 4

• deposit 70% of buyers in a separate scheduled bank account, to be used for land cost and construction after certified by Architect , Engineer and Chartered Accountants. & Audit .

Sec 11 • Disclose all the details of the project to customer

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Sec-11• Form the society on booking majority flats

Sec- 12

• Liable for damages for any misinformation in Advt.

Sec -13

• Register the agreement before receiving more than 10%

Sec 14

• Adhere to approved plans & project specifications Promoter is liable for 5 years defect liability

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Sec-15

• NOC from 2/3rd and Authority to create third party interest

Sec- 16• Take insurance of Title and building

Sec -17• Transfer the title within 3 months of OC

Sec 18 • Refund , compensation and interest on default.

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Real Estate Regulatory Authority Ensures Compliance & Enforcement

APPELLATE TRIBUNAL

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Flat Purchasers

and Consumer to transact with

Promoters.

Screening Authority between Promoter &

PurchasersCollect all the

Information ,Approval, Documents & persons

involved in the execution of RE Project & Grant Registration &

Redress Disputes

1

Promoters:To get approval from Competent Authority:

Planning and local Authority like PMC,

MCGM etc.

REAL ESTATE Regulatory Authority :Not a separate Approval Authority

2 3

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RERDA- 2016

Chapter I : Preliminary : Sec 1 and 2

Chapter II : Registration Of Real Estate Project And

Registration Of Real Estate Agents – Sec 3 to 10

Chapter III : Functions And Duties Of Promoter – Sec 11 to 18

Chapter IV : Rights And Duties Of Allottees - Sec 19

Chapter V: The Real Estate Regulatory Authority- Sec 20-40

Chapter VI : Central Advisory Council - Sec 41 and 42

Chapter VII : The Real Estate Appellate Tribunal : Sec 43 to 58

Chapter VIII : Offences, Penalties And Adjudication: 59 to 72

Chapter IX : Finance, Accounts, Audits And Reports: 73 to 78

Chapter X : Miscellaneous : Sec 79 to 92

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RIGHTS OF ALLOTTEES

Rights

Right to information &

documents

Right to obtain certificates

Right to claim compensation

Right to withdraw from project

Right to execution of registered

Satakhat

Sanctioned plans, documents of insurance

Completion, occupancy & Lease

Breach of agreement & defective title

Alterations, trf. To 3rd

party or registration revoked

If more than 10% advance demanded

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DUTIES OF ALLOTTEES

Before booking, verify builder’s registration

Not to buy apartment in unregistered projects

Not to pay more than 10% of cost before agreement and payment should be made by banking channels only.

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DUTIES OF ALLOTTEES

To make necessary payments as per Agreement & interest for delay thereon

To participate in formation of association

To participate in registration of conveyance deed

To take physical possession within a period of 2 months receiving occupancy certificate

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REGULATORY SYSTEM

AUTHORITIES

CENTRAL ADVISORY COUNCIL

(Sec. 41 &

42)

RERA

(Sec. 20

to 40)

APPELLATE TRIBUNAL

(Sec. 43

to 57

HIGH COURT

(Sec. 58)

ADJUDICATING OFFICER

(Sec. 71 & 72)

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Regulatory Authority

1

Central Government (Union Territory)

State Government (States)

Selection Committee

APPROPRIATE GOVERNMENT

1 chairman 2 MembersConstitution

Selection Committee

RecommendationsRecommendations

2

A person with at least 20yrs of experienceOrSecretary to CG or anyequivalent post in CG or SG

A person with at least 15 yrs ofexperienceOrSecretary to SG or anyequivalent post in CG or SG

CH-V ESTABLISHMENT OF REGULATORY AUTHORITY

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Settle disputes b/w allottee & promoters

Functions of RA

Granting Registration

Recovery of Penalties

Ensu compliance of Directions

Enter names of Defaulter Developers on the website

Promote transparent, efficient & competitive real estate sector

To fix charges levied on allottee

Maintain Website

compliance of obligations

Standardization of construction

Recommendations

Advise to Appropriate Govt.

Making Enquiries

Ensure construction of Affordable Housing

Settle disputes amongst allottee themselves

FUNCTIONS OF REGULATORY AUTHORITY

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Call Information from Promoters

Powers of RA

Setup Dispute Resolution Mechanism

Revocation of Registration

Appoint person for inquiry/ Adjudicating officers.

Certain Powers of Civil Court

To Issue Directions

Appoint Arbitrators etc.

Ensure Completion of project

POWERS OF REGULATORY AUTHORITY

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Central Advisory Council

1. Central Government to appoint Central Advisory Council.

1

Central Government

Planning Commission

10 Representatives from consumers, builders estate agents

ConstitutionMinistry of Corporate Affairs

Ministry of Finance

Ministry of Industry & Com.

Ministry of Consumer Affairs

Ministry of Law and Justice

National Housing Bank

Housing & Urban Dev. Corp.

SG/State RERA Representative

Central Govt. Representatives

ESTABLISHMENT OF CENTRAL ADVISORY COUNCIL

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FunctionsOf CAC

Advise Central Government

Implementation of Act

Policy regarding real estate sector

Protection of consumer interests

Foster growth in real estate sector

Any other duty or function

L-1ESTABLISHMENT OF CENTRAL ADVISORY COUNCIL

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Appellate Tribunal

1

Appropriate Govt

1 Judicial Member

Constitution

Recommendations of SC

2

1 Tech./ 1 Admin. Members

Judge of Supreme CourtOrChief Justice of High Court

Judge of High Court

A person with 20 yrsexperience in field of urbandevelopment, housing, realestate etc.OrSecretary to GOI or anequivalent post in CG or SG

Selection Committee

ESTABLISHMENT OF APPELLATE TRIBUNAL

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Appellate Tribunal

Appeal to be preferred to AT against order of RA (within 60 days).Appeal to be decided by AT within 60 days. Order of AT to be executedas Decree of civil court.

Functions Powers

➢ Between Promoter &Allottee➢ Between Promoter &RA

Hear & Dispose Appeals

Adjudication of Disputes

Not bound by CPC

Not bound by Evidence Act

Powers to regulate its procedure

Powers vested in Civil Court

POWERS & FUNCTIONS OF APPELLATE TRIBUNAL

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RIGHT TO LEGAL REPRESENTATION

As per Section 56 of the Act

Chartered Accountant

Cost Accountant

Company Secretary

Advocate

Are authorized to appear on behalf of applicant orappellant before Appellate Tribunal or a RegulatoryAuthority or Adjudicating Officer as the case may be

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RIGHT TO LEGAL REPRESENTATION

Thus only above professionals are authorised underthe Act to :✓ Represent a person (promoter) before any real

estate regulatory authority for registration of realestate project,

✓ Represent a person before real estate appellatetribunal.

✓ Represent a person before any other competentauthority for any other purpose under Real Estate(Regulation and Development) Act, 2016.

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Section Offence Penalty

59(1)

Contravention of S-3 i.e. failure to obtain registration.

Upto 10% of cost of project as per RERA.

59(2)

Contravention of any other provision of (other than S-3) or of rules made there under.

Punishable with aterm extended upto 3yrs. Or with finewhich may extendupto further 10% ofthe cost of project orwith both.

OFFENCES AND PENALTIES

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60

Provides false information or contravenes the provisions of sec.4 –Application for registration with RERA

Penalty upto 5% of cost of project.

61

Contravention of any other provisions of the Act.

Penalty upto 5% of cost of project.


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62

Non Registration by Estate Agents or contraventions of section 9 and 10 regarding registration of estate agents with RERA

Rs.10,000/- during which such default continues which may cummulativelyextend upto 5% of cost of plot/flat/ Apt for which sale and purchase has been facilitated as per RERA.

63

Failure to comply with the orders of Authority by the Promoter

Penalty for every day during which the default continues, which may be cummulatively upto 5% of cost of project.


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64

Failure to Comply with the Orders of Appellate Tribunal by Promoter

Punishable with imprisonment for a term which may extend upto 3 years or with fine for every day during which such default continues, which cumulatively extend upto 10% of the estimated cost of project.

65

Failure to comply with the orders of Authority by the Real Estate Agent.

Penalty for every day during which the default continues, which may be cummulatively upto 5% of cost of plot/flat as the case may be for which sale /purchase done.


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66

Failure to Comply with the Orders of Appellate Tribunal by real estate agent

Punishable with imprisonment for a term which may extend upto1 year or with fine for every day during which such default continues, which cumulatively extend upto 10% of the estimated cost of flat/Apt as the case may be done.

67

Failure to comply with the orders of Authority by the Allottee.

Penalty for every day during which the default continues, which may be cummulatively upto5% of cost of plot/flat as the case may be for which sale /purchase done.


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68

Failure to Comply with the Orders of Appellate Tribunal by the allottee.

Punishable with imprisonment for a term which may extend upto 1 year or with fine for every day during which such default continues, which cumulatively extend upto 10% of the estimated cost of flat/Apt as the case may be.

69

Offence committed by Company- Every officer at the relevant time and also the company shall be liable to pay the penalty.

Every Director officer or manager who is liable to discharge the duties shall be considered as committed the offence and shall be accordingly committed.


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RERDA- 2016

• Compounding of offence by court by levying penalty as per Rules

Sec 70

• Adjudication on Sections 12,14, 18 and 19

Sec 71

• Factors to be considered for Adjudicaiton

Sec 72

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ARRANGEMENT OF CLAUSES

CHAPTER IXFINANCE, ACCOUNTS, AUDITS AND REPORTS73. Grants and loans by Central Government.74. Grants and loans by State Government.75. Constitution of Fund.76. Crediting sums realised by way of penalties to

Consolidated Fund of India or State account.77. Budget, accounts and audit.78. Annual report.

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CHAPTER IXFINANCE, ACCOUNTS, AUDITS AND REPORTS73. Grants and loans by Central Government.74. Grants and loans by State Government.75. Constitution of Fund.: Grants, Fees, Int and

applied for salaries, Allowances, Members and alladministrative expenses.

76. Crediting sums realised by way of penalties toConsolidated Fund of India or State account.

77. Budget, accounts and audit. : to be prepare by theRERA, Audited by Comptroller and AuditorGeneral of India –Annually and lay beforeParliament or the State Assembly.

78. Annual report. In such form and such items asmay be prescribed by the Appr.Govt.

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CHAPTER X –MISCELLANEOUS79. Bar of jurisdiction : Bar of Civil Court80. Cognizance of offences. : Not Court other than

Authoriy and Not court inferior toMetropolitian Magistrate or Judicial Magistrate ofFirst Class.

81. Delegation. Power other than Rules making maybe delegated to any officers for any purpose.

82. Power of appropriate Government to supersedeAuthority.

83. Powers of appropriate Government to issuedirections to Authority and obtain reports andreturns.

84. Power of appropriate Government to make rules.

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85. Power to make regulations with Authority86. Laying of Rules –Central Govt before Parliament

and for state Govt – before assembly for 30days.

87. Members, etc., to be public servants-U/s. 21 ofIndian Penal Code.

88. Application of other laws not barred: This is inaddition to and not derogation of theProvisions of any other law for the time being.

89. Act to have overriding effect.90. Protection of action taken in good faith.91. Power to remove difficulties.: Central Govt may

notify any order for 2 years to removedifficulties.

92. Repeal.. Mah. Hsg(R&D) Act, 2012

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U/S.10. FORMATION OF LEGAL ENTITY .

(MOFA, 1963) or U/s 11(4)(e) of RERA 2016

TO MANAGE COMMON SERVICES,

AREA & FACILITIES AFTER DISPOSING 51% UNITS BY PROMOTERS

Society or

Federation

Mah.Co-op.

Soc.Act, 1960

At Dy. Regr.

Company CondominiumOther

Legal Entity

Companies Act,

2013 at ROC

Mah. Aprt.

Own. Act, 1970

At Sub-Regr.

Association

u/SRA, 1860

Trust

u/BPT,1950

Firms

u/IPA, 1932

PSU & GU

u/Act of Pimt

Others

LLP etc.

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TRANSFER OF TITLE u/S 17 OF RERA

(1) The promoter shall execute a registeredconveyance deed in favour of the allottee alongwith the undivided proportionate title in thecommon areas to the association of the allottees orthe competent authority, as the case may be, andhand over the physical possession of the plot,apartment of building, as the case may be, to theallottees and the common areas to the association ofthe allottees or the competent authority, as the casemay be in a real estate project, and the other titledocuments pertaining thereto within specifiedperiod as per sanctioned plans as provided underthe local laws:

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SEC. 17 TRANSFER OF TITLE

Provided that, in the absence of any local law,conveyance deed in favour of the allottee or theassociation of the allottees or the competentauthority, as the case may be, under this section shallbe carried out by the promoter within three monthsfrom date of issue of occupancy certificate.(2) After obtaining the occupancy certificate andhanding over physical possession to the allottees interms of sub-section (1), it shall be the responsibilityof the promoter to hand over the necessarydocuments and plans, including common areas, to theassociation of the allottees or the competent

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SEC. 17 TRANSFER OF TITLE

authority, as the case may be, as per the local laws:

Provided that, in the absence of any local law, thepromoter shall handover the necessary documentsand plans, including common areas, the associationof the allottees or the competent authority, as thecase may be, within thirty days after obtaining theoccupancy certificate.

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REGISTRATION OF REAL ESTATE PROJECT

• CA to understand the various elements involved in the initial stage of the project till the completion of the project

• The title of the land and the various issues

• Review the Development Control Regulations FSI, TDR etc, approved and Proposed Plans

• Review Allotment letter, advertisement material, receipts, booking letter, web site contents, agreement for sale and the conveyance deed, agreements to be

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REGISTRATION OF REAL ESTATE PROJECT

• Designing the various policy documents and other compliances as may be required from time to time.

• Coordinate with the various professionals involved in the process of registration of the real estate project

• Upload the information on the website for registration of the project and attend the hearing if required to get the project registered with RERA.

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REGISTRATION OF REAL ESTATE PROJECT• (A) Providing the detail list of the documents

and information required for the registration of project.

• (B) Compilation of all the data and the documents provided by the promoter for the purpose of the registration.

• (C) Study and verification of the data and documents so as to check whether it meets requirements under the RERA.

• (D) Uploading of all the information provided by the promoter on the website of RERA.

• (E) Preparation of declaration in form B.

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PROJECT TRACKING DETAILS• (1) Uploaded Information after due

verification

• (2) Interact with other professionals like Architect, Engineer, Advocate and staff

• (3) Guide for RERA compliance

• (4) Review the project report details received from the architect, engineer and the Chartered Accountant.

• (5) Compile and verify last 5 years projects undertaken and completed or pending since 2012-13 onwards till 2016-17. The

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DRAFTING AND VETTING OF DOCUMENTS AS PER RERA REQUIRED

FOR REGISTRATION • (A) Draft allotment letter

• (B) Agreement for sale.

• (C) Conveyance Deed

• (D) Booking Letter.

• (E) Agreement with the Engineer and Architect

• (F) Advertisement material

• (G) All Standard documents required from customers.

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RETAINERSHIP SERVICES• (A) Providing the guidance to the

promoters for the timely compliances to be made as per RERA.

• (B) Verification and the certification of records as per the RERA on quarterly basis.

• (C) Quarterly status uploading of the Project on the MAHARERA portal.

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CONSULTANCY ON MANAGEMENT OF THE FUNDS AS PER RERA

• (A) Review and monitor the bank account in which 70% of the money received from the buyers is maintained.

• (B)Review each of the certificates issued by the architect, engineer and the chartered accountant issued for the purpose of withdrawal of the funds from the designated account.

• (C) Review the utilization of 100% funds received from the customers and facilitates to complete the accounts and submit for

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PREPARATION OF ANNUAL STATEMENT and AUDIT

• It will include the verification of various documents and records relating to following points.

• i). Details of the money received as the booking amount.

• ii). Withdrawals made accordingly are as per the guidelines given by the RERA.

• iii).All the agreements executed with the customers in for the particular project.

• iv).Whether amount collected from the particular project has been utilized for the

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All the efforts are made to cover the important

provisions of the law. The material contained

herein is not exhaustive, and contains certain

generalizations. The latest Provisions and

Notifications must be viewed. The presenter is not

responsible for any loss incurred on the actions

taken based on the material presented.

----------CA. Ramesh S. Prabhu

69

DISCLAIMER

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CA.Ramesh S. Prabhu, FCA, CISA(USA)

Let us be Partner in Nation Building

O9820106768/ [email protected]

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Thank you for Getting involved in the discussion!

Let us empower each one of us by sharingknowledge. Let us Innovate, Get involved & Solveissues collectively within four corners of Law.

CA RAMESH PRABHU ,

– 09820106768

EMAIL:[email protected]

CHAIRMAN

MAHARASHTRA SOCIETIES WELFARE ASSOCIATION, CO-OPTED MEMBER OF TASK FORCE FOR

NPOS & CO-OPS OF MAHARASHTRA, CONVENER TO PREPARE GUIDANCE NOTE ON AUDIT OF

DISTRICT AND STATE CO-OP BANKS –PUBLISHED BY PDC OF ICAI, CO-OPTED MEMBER OF CO-OP

COMMITTEE (MAHARASHTRA) OF WIRC OF ICAI.

BANGALURU BRANCH OF SIRC OF ICAI

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