Facts to check before buying immovable property

Published by The New Nation| February 28, 2017(Link Here)

Barrister Miti Sanjana :
Having a checklist of documents relating to immovable property is very crucial step of property transfer process. Transfer of immovable property in Bangladesh is a document intensive process because of complex legal, statutory and regulatory framework. A large number of property buyers don’t get complete property documents from the sellers/transferor at the time of purchase. Another problem is during the transfer the buyer or a seller is not aware about the specific property documents that are required ascertaining the ownership of land. Uncertainty about land ownership and occupancy rights can give rise to different types of conflicts. When a person acquires ownership of an immovable property by purchase, gift, exchange or any other way or transfers the same, he needs to complete the entire process as prescribed by law. I have attempted to make a comprehensive checklist of property documents that are required to ascertain the ownership over a land. The required documents are listed below (some additional property documents may be required depending on a fact of a particular case):  For transfer of Freehold Property: 1. Title Deed. (if the property is acquired by way of purchase), 2. Succession Certificate from Concern Word Commissioner Competent Court or. (if the property is acquired by way of inheritance), 3. Partition Deed (if it is ezmali property),4. Bia Deeds, 5.Certified copy of Mutation Parcha alongwith  DCR (Duplicate Carbon Receipt) issued by Assistant Commissioner (Land) in the name of present Owner, 5. Record of Rights, 6. Printed D. P. Parcha,  7. Up to date Ground rent payment Receipt in the name of present Owner, 8. Up to date Non-Encumbrance Certificate (optional). 9.Up to date City Corporation Holding Tax Payment Receipt in the name of present owner (if applicable).

For transfer of Leasehold Property: 1. Allotment letter, 2. Standard Lease Deed, 3. Possession letter, 4.Title Deed, 5. Bia Deed, 6. Relevant permissions (mutation) from the Lessor in case of leasehold property from RAJUK/Ministry of Housing & Public Works/National Housing Authority  ,7. Printed D. P. Parcha, 8. Up to date Ground rent payment Receipt in the name of present Owner, 9. Up to date Non-Encumbrance Certificate, 10. AC Land Mutation alongwith DCR, 11. Up to date City Corporation Holding Tax Payment Receipt in the name of present owner.
If the property in question is a Flat/Apartment: Apart from the documents mentioned above (standing in the name of landowner) a prospective buyer needs to obtain some additional documents which include 1) Deed of Agreement executed between Landlord and Developer, 2. IGPA executed by the Landowners in favour of Developer. Beside this Approval from concerned authority for construction building on the land, lay out plan of the building construction and other necessary permissions are required.

Moreover, it is also very important that a prospective buyer inquires about the genuineness of the aforesaid documents before embarking on property purchase. Checking with the concerned Sub-registry, AC land and Tahsil Office can ensure the authenticity of any title document.
The Transfer of Property Act, 1882 is an important statutory law. It is the law relating to the transfer of property by act of parties. The Act excludes transfer by operation of law i.e. by sale in execution case, forfeiture, bankruptcy, and succession.
The scope of the Act is also limited in the sense that it only deals with the transfer inter vivos i.e. the transfer from one living person to another living person e.g. it does not deal with the transfer of property by way of will. For the purpose of this Act “living person” includes a company or associations or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals. The Transfer of Property Act deals mainly with the five types of transfer which includes Sale, Mortgage, Lease, Exchange and Gift.

The Parliament has amended the Registration Act- 1908 and the Transfer of Property Act- 1882 in 2004 with effect from July 1, 2005. The most significant amendments are making registration compulsory by reducing registration fee remarkably in the case of certain documents e.g. Declaration of gift under Muslim Law (Oral gift) , Contract for sale (Baina Nama), Mortgage etc.
Section 53Cof the Transfer of Property Act states that no immoveable property shall be sold by a person unless his name, if he is the owner of the property otherwise than by inheritance, or his name or the name of his predecessor, if he is the owner of the property by inheritance, appears in respect of the property in the latest khatian prepared under the State Acquisition and Tenancy Act, 1950, and any sale made otherwise shall be void.
As per the Registration Act Section 52A, Registering Officer cannot register a transfer, unless certain particulars are included in an instrument of transfer.
Only after verifying that the seller has right title to sell the land and reviewing all the necessary documents a prospective buyer can initiate the actual process of buying the property.
(The writer is an Advocate, Supreme Court of Bangladesh and an activist.)
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