PROPERTY DEVELOPMENT AND REGISTRATION

Published By The Daily Star on March 31, 2012 (Link Above)

This week Your Advocate is Barrister Omar Khan Joy, Advocate, Supreme Court of Bangladesh. He is the head of the chambers of a renowned law firm, namely, ‘Legal Counsel’, which has expertise mainly in commercial law, corporate law, family law, employment and labor law, land law, banking law, constitutional law, criminal law, IPR and in conducting litigations before courts of different hierarchies. Our civil and criminal law experts from reputed law chambers will provide the
legal summary advice.

Query
From a small-sized Property Developing Company owned by a Bangladesi-Canadian Architect of respectable background , we purchased one Apartment from one of their advertised projects in Sector- 4 in Uttara Model Town in 1998. We made full payment by chque on 22.12.1998.

When the Project was nearing completion, One “Agreement for Sale ” was drafted on Stamp Paper of Tk 150 and it was signed by both the Property Developer and the Purchaser. The date was 31.12.1998.

The possession of the Apartment was handed over to the Purchaser in early October of 2000 after making full payment of VAT, Utilty Connections and Collective Fund.

Then on 31.12.2002, the Developer, asked for deposits for obtaining Rajuk Clearance prior to Registration. The Purcaser duly deposited the fund with the Developer.For nearly two years the Deveoper showed no activity.

Then on 17.10.2005, the Developer refunded the money to the Purchaser on the pretex that they were unable to make any progress as the other Apartment Owners were not co-operating with them. The matter has been hanging like this since then and no progress made.

It is worth mentioning that the Developer and his brother , a Lawyer , live in two Apartments on the top floor and they are not on good term with the other 11 Apartment owners.

OUR QUERIES;
1. In the absence of Registration, does the original Agreement for Sale give the Purchaser any legal right.

2. Can the Agreement for Sale be Registered or notorised to safeguard the Property

3. If the Dveloper does not co-operate, could the Purchaser can seek Court Order either individually or collectively for Registration.

Iskander Meah
H#20A , Road# 82, Gulshan

Response
I would like to thank you very much for your queries. From the given fact it appears that an Agreement for Sale was executed and registration of the flat is yet to be completed. As far as your first query is concerned, the “Agreement for Sale” renders contractual rights upon the parties to the Agreement but you will not become the owner of the same by way of this agreement. Considering your second query, notarizing the Agreement is unlikely to have any significance and the parties will have contractual rights emanating from the Agreement.

In the light of your third query, the purchaser can have recourse to the Court individually or collectively for breach of the aforesaid Agreement against the developer. As the registration of the flat is an important term of the Agreement, the purchaser may go to the Court for breach of the Agreement and ask for specific performance of the Contract. The Court may order specific performance by way of registration of the flat. The purchaser should make sure that the Sale Deed is registered at the time of registration as the title will not pass to him otherwise even if he is in possession of the flat. Besides, it will be necessary to accomplish mutation in the name of the purchaser after registration.

I always advise to settle any dispute amicably as litigation involves use of valuable time and money. Therefore, the issues in the given fact should also be settled beyond the Court and the purchaser should try his best in this regard. You may try out sending a legal notice through a lawyer.

I hope that the aforesaid opinion will help you to take appropriate steps towards a solution.

For detailed query contact: omar@legalcounselbd.com.