PROPERTY DEVELOPMENT AND LOSING TITLE DEED

Published By The Daily Star on May 21, 2010 (Link Above)

This week your advocate is Barrister Omar Khan Joy of the Supreme Court of Bangladesh and Head of ‘The Legal Counsel’. His professional interests include commercial law, corporate law, family law, land law, constitutional law, banking law, arbitration and intellectual property laws. Our civil and criminal law experts from reputed law chambers will provide the legal summary advice.

Dear Advocate
In 2005 I entered into a contract with a renowned developer. According to the contract once the building was handed over, the developer would return the ‘Dalil’ of the land back to the original owner of the land (that’s me). I got my apartments late 2008 and since then I’ve been asking for my ‘dalil’. They keep making excuses. Last time they said that they lost it. They have the photocopies but they lost the original dalil which is a big fat stack of papers. While discussing this problem with the flat owners of the building, they feared whether the developer has taken out more loan on the dalil. they fear that if this happens they’ll lose the apartments which they themselves bought on loan. Is that possible?

I have been running after the developers for two years now. I am tired. I don’t want to get stuck in the legal system’s lengthy processes. However I don’t see any other way out of this problem. Please advice what I should do. the developer are backed by political leaders. That also concerns me. If you can find a short smart effective remedy, please do give me one.

I was thinking, since they have told me they lost it, should I post a ‘beggapon’? Please advice. I really need you to help me out. I’m absolutely sure; I’m not the only land owner who is facing such problems with developers.
Regards
Frustrated land owner

Dear Landowner
Thanks for your query. Yes, I do agree with you that there are many landowners who are facing different kinds of problem with the developers. The fact that the developers are in a stronger position makes the landowners to feel even more helpless. It is, therefore, very important to draw up a vivid and elaborate contract contemplating as many future scenarios as possible. It is not always the truth that the developers act with bad intention and there are a good number of very professional developer companies in our country. So, my first general advice to the landowners is to enter into a detailed contract with the developers. It is also strongly advisable that both the parties strictly adhere to the terms of the contract. If one of the parties starts deviating from the terms, the other party will also get an incentive to breach the contract.

Now coming to your precise problem, I understand that the developer has allegedly lost the original title deed of the land. Generally, the developers do not take the original deed from the landowner but in your case the original was handed over to them.

So far as the missing of the deed is concerned, apparently it shall not be a major problem. Please be advised that when the flat owners have registered their flats in their names, all the flat owners have become the co-owners of the undivided land each having a certain percentage. Consequently, the title deeds of the flat owners will prove their respective titles to the flats and to the land. The lost deed will only act as a ‘bia-deed’ to establish the chain of ownership. Apparently, unless the developer had done something illegal, this will not cause any problem to the flat owners’ titles and rights over their properties. However, since it is lost and since we cannot guarantee the good faith of the developer, you should lodge a G. D. (General Diary) before the police station where the land is situated stating the fact of lost of the deed. You may also decide to publish an advertisement in a well circulated newspaper stating the same. More importantly, you should collect a certified copy from the land-registration office. So far as obtaining any hidden loan by the developer by mortgaging the instant property is concerned, I see this only as a remote possibility. The developer’s right to deal with the land was governed by the terms of the contract and the Power of Attorney given to them. It is not unlikely that the developer was given the right to take loan by way of mortgaging the concerned land. You may decide to read the terms of the contract and the power of attorney to check whether such right was conferred to the developer by you. If such rights were conferred, you should check with the developer whether they have taken any loan by mortgaging the property. If you think that the developer’s response cannot be relied upon, to feel the absolute comfort, you may decide to obtain a ‘Non-Encumbrance Certificate’ from the concerned land registration office against the said piece of land and also against each flat. In any case, if you get a clean Non-Encumbrance Certificate from the land registration office, you may feel relaxed that the land is not subject to any charge or encumbrance.

In addition to that, if the Deed of Power of Attorney executed by you in favour of the Developer is a registered one, you can revoke the same by executing a Deed of Cancellation and Revocation of Irrevocable General Power of Attorney, as the responsibility of the Developer Company has ceased to exist after handing over the flats.

Having said the same, a further dimension of the matter is that by not returning the original deed the developer has violated the terms of the contract and you may ask the developer at least to bear the costs and expenses that you will incur in performing the aforesaid activities. You shall also insist that the developer gives you a ‘Letter of Indemnity’ stating the fact of loosing the deed and guarantying to indemnify you against all foreseeable and unforeseeable losses and consequences that may directly or indirectly arise out of the same.

I hope that the above shall help you to evaluate your position and to take required actions I encourage you to appoint a lawyer, who is conversant in dealing with such matters. Take care.

For detailed query contact omar@legalcounselbd.com.