Buying a property or a flat is considered to be keeping one’s asset these days. Buying a flat is often considered to be a wiser idea that buying gold as the greater the inflation rates is the more is the value of the land/ property or flat. However, after investing all the money with blood and sweat and buying a flat and imagine you don’t get its possession? Heart wrecking isn’t it? What adds to the damage is when the builder stops taking your calls and ignores it without any explanations. You’re then left with no other option than seeking the advice of your attorney and come to a remedy. The Real Estate sector of India has been held responsible for this one recurring issue since ages, and furthermore this was one such reason which made the Government realize the lacuna in the real estate sector where the govt felt the need to emerge a sector specific forum and hence the formation of Real Estate (Regulation and Development) Act, 2016 (RERA) was done.
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What do you mean by Delayed Possession?
The meaning is purely as it is. It simply means that when there is a delay in handing over the possession of the flat to the person buying it (home buyer) within the stipulated period of time that was decided as per their prior promises as done by the builder-buyer agreement. The cause of delay may be anything as change of plans, financial belches, scarcity of funds and any such possible reasons without the knowledge of the buyer. However, we can say the possession is delayed only after it is found that the possession still isn’t in had if the time and date has crossed the stipulated in the builder-buyer agreement so made and the liability of the builder only arises after the delay has been done.
Remedies for the Home Buyers
Only in 2016 the emergence of RERA came into effect to the rescue of victims of such cases. Before 2016 there was no statue impliedly or expressly that provided protection against such practical and happening issues.
Real Estate Regulatory Authority Act, 2016 (RERA):
The RERA is a regulatory authority like RBI for the Banks, established in every state that is a extra ordinary body that erects to deal with the matters that are related and subsidiary to the Real Estate arena. There are no explicit provision that can be mentioned right here as to “where” the rights of the Home Buyers are given as it varies from state to state however, the basic principle of all such legislations is the same that has been awarded to the Home Buyers as the form of their “rights”. They are mentioned below.
Home Buyer’s right to Withdraw
As mentioned above, if the developer or the builder is failing to keep up to it’s promises of delivering the possession of the property or flat within the duration of the prescribed time mentioned in the agreement so made; then right then, the Home Buyer has the right to withdraw himself/ herself from the project.
Home Buyer’s right to get renumeration post Withdrawal
As per the principles and rules laid down in the RERA, after the withdrawal of the Home Buyers they have all the rights to get their share of renumeration for the entire amount having paid till date to the builder along with the interest it makes. This right is however awarded to the Home Buyers only after the termination of the period of time that is prescribed in the builder-buyer agreement. Unfortunate enough, the home buyer cannot just directly go to the court and ask for money, rather, via their attorney they may send a legal notice or request the developer/ buyer to pay their renumeration amount. If the developer/ builder still fail to meet up as per the request or legal notice, then , there the home buyer may seek the help of the competent court to claim their remedy.
Home Buyer’s right to get renumeration without Withdrawing
This condition is however rare but here’s the fun fact; if the home buyer does not want to withdraw himself/ herself from the project so agreed upon irrespective of the delay from the builder’s end, then the builder/ developer is obliged to renumerate that particular home buyer for each passing day of the occurrence of the delay. The rate of interest of such a renumeration shall has to be fixed in the builder- buyer agreement.
Right to File a Complaint
Last but not the least, the RERA has also given a simple yet strong remedy that can be seek against the builder or developer in default. This is as simple as that. When the builder does not pay the renumeration amount even after legal notice or follow up requests, the home buyer may file a complaint against the builder before the State Regulatory Authority (i.e., ORERA for Odisha) that further designates an office in charge for the sole motive to eject the function of the judge. The officer so designated by the Regulatory Authority has to execute an enquiry and pass necessary order .
Complaint in Consumer Courts
The remedies available to the home buyers is not only awarded in the RERA but also the ambit of Consumer Courts. The motive or purpose for which the property is brought by the home buyers plays a critically important role in determining the jurisdiction of the consumer court.
A file of complaint for deficiency of service by the builder may be filed by the home buyer in the District, State or National Consumer Courts solely depending on the subject matter’s value and jurisdiction and most importantly the amount of compensation that the home buyer is asking for. As we all know, consumer courts are known to be the fastest out of all other courts to come up with aid and relief, and so, it is always advised to the home buyers to file the complaint at their earliest after the breach of agreement happens.
Civil Suit or Writ Petition in High Court
This is the last option that any legal practitioner opts for as usually the remedy is claimed from the two aforementioned provisions. However, if there is a state which does not have a Regulatory Authority i.e., a state that still does not have RERA to adjudicate it’s Real Estate Matters then the home buyer may seek remedy with the help of a Civil Suit or a Writ Petition in the High Court of competent jurisdiction. As per Section 20 of the Code of Civili Procedure, 1908, the defendant (in this case: The Home Buyers) must file the suit where the defendant resides or conducts or carries his place of business or where the property is located.
Alternative Dispute Resolution
This right is only available to the home buyer if a clause for Arbitration is provided in the agreement that was so made between the buyer and the builder. It is more like a settlement outside the court that not only reduces the pressure on the judiciary but also gives speedy remedies to the home buyers.
Conclusion
The RERA or the Real Estate Regulating Authority, 2016 is the present day development of the judicial system that provides for solution to the petty home buyers, however, it is still not executed in all the states of India and that is not a lacuna but a difficulty that the buyers might face of that particular state. Now, the need of the hour is execution of such Regulatory Authorities across India, that is in each and every state to ensure not so many deficiency of service by the builders and the mental and physical agony of the home buyers.
Law student.
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