Using a 'gift deed' to transfer a flat or immovable property, either as a whole or in partial, has been common practice for owners, as it minimises the chances of dispute in property inheritance cases. Unlike a will, the gift deed is immediately executable and one does not require a court order to get it enforced. This way, it saves time and hassle for the donee or nominee in matters relating to transmittal of immovable property.
Some rules need to be followed when executing a gift deed, but it is still preferable to transfer a flat due to the relatively less cumbersome transmittal process. This week, we will look at the necessary precautions an owner can take to ensure a smooth property transfer when it has been partially gifted. Other issues addressed this week concern the applicability of property tax when possession has been delayed, denial of parking space for a second vehicle by the managing committee and the process of reclaiming possession from a nominee with a legal succession certificate.
Partial Gift Deed to Safeguard Daughter's Future
Question: I am the owner of a flat in Mumbai, from which I want to gift 40% of the share to my wife and 10% to my daughter, who is in college. Can I take irrevocable power of attorney from my daughter, both in my name and my wife's name as a precautionary measure for selling the flat in future? This is in case my daughter is abroad and not able to visit India to sign the sale deed. Also, in the unfortunate death of both, my wife and me, will my daughter be able to get the entire flat transferred in her name without any hassle? Being the only child, she is the sole beneficiary to the property. I do not want the Society to harass her at any time in the future. Please guide.
Answer: After you make a partial gift deed of your flat to your wife and your daughter, if your daughter is 18 years old or more, you can get a power of attorney (POA) from her, on Rs500 non-judicial stamp paper and register it with the sub-registrar of assurances.
The points you have stated in your question are correct and this POA by your daughter in favour of her parents, will help you sell your flat if your daughter is abroad.
By giving some percentage of your flat to your wife and daughter, the full flat will not go to your daughter after the death of your wife and you. To transfer the entire flat to your daughter, kindly make a Will (a separate one for both, you and your wife) and register it with the sub-registrar of assurances. In the Will, you should state that your portion of the flat should go to your daughter after your death.
This way, you can be assured that your daughter will be the full owner of your flat after the death of your wife and you.
Denial of Parking Space for a Second Vehicle by Managing Committee
Question: Society is not allowing us to park our second vehicle within the premises and is neither permitting us to take it on rent from someone else. What options do we have in such a situation?
Answer: If parking space is available in your Society's premises, then the Society cannot deny you a spot for parking your second car. Parking is managed by bye-law nos. 78 to 84, as stated in the cooperative housing society bye-laws book of the year 2014.
If parking space is available and the Society denies you a parking spot for your second car, then under bye-law No. 174(B)(iv) you can make a complaint against the Society in a cooperative court.
You have to hire the services of a good advocate practising in the cooperative court, who has decent experience in parking-related matters in a cooperative housing society.
NOTEWe will not be answering queries posted in the comments. Only questions sent through the Moneylife Foundation's Legal Helpline will be answered. If you want to seek guidance or ask questions to Mr Shanbhag, kindly send it through Moneylife Foundation's Free Legal Helpline. Here is the link: https://www.moneylife.in/lrc.html#ask-question
Applicability of Property Tax in a New Residential Building
Question: A property tax bill has not been issued by Ambernath Municipal Corporation for our new residential building since January 2021. The builder has uploaded an incorrect occupancy certificate dated 18 January 2020 on MahaRERA's portal, but the building was not ready for possession at that time, as interior works were all pending. For all owners, the flats were made available by the builder for occupancy in December 2020, with an architect's occupancy certificate. Since property taxes have not been billed and we are unsure from which date they would be applicable, to whom should we report the issue for resolution?
Answer: Make Lokshahi Din complaint to the district collector at Thane district. His office is directly opposite to the Thane district court. Also make three complaints each, against the builder, against town planning department of Ambernath municipality and against the architect of your building.
Thane district collector will hear your three complaints on the first Monday of the month in his office and take necessary action to redress all complaints.
Make another Lokshahi Din complaint against Ambernath municipality for not issuing flat-wise property tax bills in your building.
Reclaiming Possession of a Flat with a Succession Certificate
Question: A flat has been transferred in my cousin brother's name after the death of my father, based on his nomination in the Society. He was staying with my father for more than a decade. We are three married sisters and we have a succession certificate, but are struggling for more than 20 years to get the flat in our possession. Please advise.
Answer: The same advocate who got you the succession certificate of your father's flat should have helped you with the transfer in the name of you and your sisters. Kindly find another advocate to do this work, as it appears your original advocate is not competent enough.
Once the flat is transferred jointly in you and your sisters' name, you have the right to evict your cousin occupying your father's flat, with another court order. You will have to make a court case that you need that flat for your own use, that is, for the use of yourself or your two sisters.
(Shirish Shanbhag has an MSc in Organic Chemistry, Diploma in Higher Education, and a Diploma in French and has completed his LL.B. in first class in 2021. Before his retirement, he was a junior college teacher at Patkar College from July 1980 to May 2012, teaching theoretical and practical chemistry. Post-retirement in 2012, he started providing guidance and counselling to people on several issues, specifically focusing on cooperative housing society-related matters. He has over 30 years of hands-on experience in all matters about housing societies and can provide out-of-box solutions for any practical issue.)