Rent house
STUDENT....
(Querist) 01 August 2012
This query is : Resolved
Hi Team,
My Mom has alloted a house in Gurgaon and we have no registery since it is a registered co-operative housing socity and we have been alloted share certificate from the housing socity and the nominee of that house is me and my father. My Mom has expired in 2005 and We have not transfered the house in our name yet.
My Question to this forum is:
1. Do we have right to give that house on Rent without transfering the same in our name.
2. If Yes, then what type of papers we can make so that the Tanent would not be able to forfeit/Un-authorized Stay in that house and we don't have to run in courts and police station for the same.
Please advice me on the same.
Regards,
Kunal Chib
Devajyoti Barman
(Expert) 01 August 2012
After the death of your mother you are already its owner by virtue of your inheritance.
So the tenant can never dispute your title if you execute a tenancy agreement with him.
However in view of opposition of the Society it is advisable to first get share certificate in your name and then go for tenancy.
prabhakar singh
(Expert) 01 August 2012
Yes!you do not need any transfer to be made in your name as the flat owned by your mother
soon after her death devolved upon her children and husband equally by virtue of Hindu Succession Act,since she did not left any will.It is sufficient that share certificates that was in name of your mother has been transferred now in name of your father and you.
you and your father are owners and can create lawfully a tenancy agreement;but better create a leave and licence agreement
as the latter would be legally more beneficial than the former from your point of view.
STUDENT....
(Querist) 01 August 2012
@Mr.Devajyoti and Mr.Prabhakar: Thanks for your expert advise..
There are three Hiers of this property..
1. Me.
2.My Father
3.My Sister..
No Will was made by my mother...
The Nominee of the property is Me and My Father...
We are not transfering the same on our name since the third hier"My Sister" she is not ready to sign on any of the moveable and immovable property documents and she is also not saying anything that what she need from the property...
When asked her she has her own reasons which makes no sense at all... as per her mom came to her dream and told her not to do the same...
Please let me know in this case...
Also @Mr.Prabhakar and Mr.Devajoti: If possible please send the format "create a leave and licence agreement" so that we can proceed further on the same....
JANAK RAJ VATSA
(Expert) 01 August 2012
your sister is also a legal heir as a equal share holder in the property. since the matter is within the bounds of the family, try and resolve among yourself failing which she can legally demand her share in the property
V R SHROFF
(Expert) 01 August 2012
Kunal,
Why you wait till Shri Barman & Shri Prabhakarji replied to you:
Later you asked the real QUERY of Sister's Right, and her unwillingness.
YOU CANNOT RENT OUT THIS PROPERTY WITHUT THE NOC FROM YOUR SISTER AND THE SOCIETY.
No Society will allow you to do so.
Your delay of 7 years for transfer is caused due to Objection of your sister, that you tried to hide, in Original Query.
I know you will not go for LL, as you want to encash high amount of Pagri, in shadow of RENT .It will attract Rent Control Act, and the said Right cannot be transferred without the consent of all co-owner, including your sister.
Nominee is only a care taker, and not the owner of property.
Amicable settlement is the only way out.
If your sister get Injunction Order against you both and Society, you cannot create any third party right in the said Property.
STUDENT....
(Querist) 02 August 2012
To All...
Just an FYI..
My Sister doesn't have any objection if we rent out the property...She won't say a single word i'm sure abt renting the property...
I want to confirm weather we can rent the property or not since the same is not transfered yet...
If yes then what type of papers we should make so that the tenent would not be able to forfeit/Un-authorized Stay in that house and we don't have to run in courts and police station for the same.
As suggested by Mr.Prabhakar..."create a leave and licence agreement
as the latter would be legally more beneficial than the former from your point of view."
I would now request you all if you can send me the sample/format of leave and licence agreement...
In my family the only issue is transfering the property for which I'm already aware about the same...hence I'll take care of the same...
prabhakar singh
(Expert) 02 August 2012
Any immovable property has two distinct element,the possession and the ownership.i counted possession first because it is development of this nature in human civilization gave birth to the concept of ownership.As of now we have options as owner to earn from the property by parting the possession yet retaining the ownership.Capital can also be created by raising loans against several mortgages.
Lease is one option while leave and license is the other.
A lease if made for a period beyond a year,requires registration for its'validity;while leave and license barring Maharashtra does not,as in Haryana,no such law is enacted,this condition is prevalent in most of the states.
The benefit of a leave and license against a lease is that of some of finer points in law by which the two are distinguished.In the former the licencee is given only right to use the property for the time agreed while in the case of latter land lord parts
and demised the possession in the favor of the lessee.
As regards to creating any such document,any of you,or all of you can create.A tenant or lessee or licencee can not claim it later a bad deed,denying the title as it was not created by all of you.It is quite internal among you three.
In GURGAON and in Delhi the fashion is to create leases for a period of 11 months towards agreed rent one month advance rent
and two months security for furnished property and one month for unfurnished.
The same may be followed for leave and license.
One thing that even legal community labors
in confusion is the payment of stamp duty and registration.If the registration of any document is optional,it does not mean paying stamp duty on it is discretion of the party,it has to be paid as laid in the stamp duty act of the state ,but such documents are invariably but wrongly advised to be entered into paying ,10,20,50,100(not heard beyond it).But law is not so.If law does not require registration,and parties does not opt for registration,they can save legally, only the fixed fees of registration and not the stamp duty.
Now coming to the part you have reiterated that reads:
"If yes then what type of papers we should make so that the tenent would not be able to forfeit/Un-authorized Stay in that house and we don't have to run in courts and police station for the same."
All agreement ,oral or written,registered or unregistered,are GENTLE MAN"S BUSINESS.
BY SUGGESTING TO GO FAR LEAVE AND LICENCE I HAVE NOT GUARANTEED YOU THAT YOU WOULD NOT NEED TO run in courts and police station for the same."
ONCE YOU PUT A PERSON IN POSSESSION OF YOUR PROPERTY UNDER ANY AGREEMENT FOR ANY PERIOD
WHERE HE DEFIES AND DISHONORS ITS' TERMS YOU CAN NOT EVICT HIM FORCEFULLY IF HE DOES NOT GO ON HIS OWN OR YOU CAN NOT SNATCH HIS
PURSE WHEN DOES NOT PAY YOUR MONTHLY RENT OR LICENSE FEES.IN EVERY SUCH A CASE YOU SHALL HAVE TO GO TO COURT FOLLOWING DUE PROCESS LAID.THE BENEFIT IN MY ADVISE IS THAT DISPUTE IF ARISE AND GOES TO COURT IT SHALL BE OF VERY SHORT LENGTH OF TIME IN COMPARISON TO A DISPUTE OF LEASE.
AS REGARDS TO FORMATS,I AM ONE OPPOSED TO.FORMATS ARE MEANT NOT FOR LAYMEN WHO USING THEM CAN DO MORE HARM TO THEM.EACH DOCUMENT HAS ITS RELEVANCE TO DISTINCT FACTS AGREED TO GATHER FOR WHICH AN AGREEMENT HAS TO BE DRAFTED AS PER LAW IN THE FASHION PREVALENT.IT IS COPY CAT IDEA WHICH HAS GIVEN BIRTH TO FORMATS,WHICH I DO NOT PROMOTE.
