PRESENTS DISCUSSION ON REAL ESTATE (REGULATION & DEVELOPMENT) BILL, 2011

PRESENTED BY Rupendra K Porwal B.A., B.Com., FCS, LL.M (University of Manchester) Managing Partner RallyMark Legal, Advocates and Legal Consultants, Premier Building, 9 Shahnajaf Road, Lucknow Website: Phone: Mob: ,

REAL ESTATE PROJECT includes the activities of - (i) Development of immovable property including construction thereon or alternation and their management; (ii) Sale, transfer and management of immovable properties. IMMOVABLE PROPERTY: Includes land, buildings, rights of ways, lights or any other benefits arising out of land and things attached to the earth or permanently fastened to anything which is attached to the earth, but not standing timber, standing crops or grass. PROMOTER: The definition is very wide and covers private and government parties involved in development of real estate projects. DEVELOPMENT : Means carrying out development of immovable property, engineering or other operations in, on, over or under the land or the making of any material change in any immovable property or land and includes re-development.

1.Every real estate promoter shall be required to obtain Certificate of Registration from Real Estate Regulatory Authority (“RERA”), before commencing the work for : Construction of a new project; Carry out alteration or conversion of any existing un- developed land. 2.Incase of an existing and on going project, the promoter shall obtain registration certificate before expiry of 6 months from the commencement of this Act. 3.However a promoter can carry out its business activities until registration certificate is granted or intimated by RERA that it can not be granted.

Promoter shall make an application to RERA for the registration of project in the prescribed form and pay applicable fee. Application shall be annexed with: All approvals/sanctions obtained from local authority; A declaration stating that/about: (i) Legal title of land. (ii) Land is free from all encumbrances. (iii) Project or phase(s) shall be completed within the stipulated time as per T & C of registration. (iv) 70% of the amount received from the allottees shall be deposited, within 15 days of its realization, in a separate bank account(“Escrow Account”) with a scheduled bank..

Cheques, received from allottees towards the purchase value of property, should be drawn in the name of the project duly annotated with Escrow Account details and should be deposited in the Escrow Account. The electronic transfer of money should also be made in Escrow Account. Withdrawal of money from the Escrow Account should be done in the following manner:  All withdrawals towards meeting the cost of the project should be carried out with the approval/confirmation of RERA.  Any invoice raised by a contractor should be certified by an independent architect/ structural engineer etc and thereafter should be presented to RERA for its approval/confirmation.  RERA shall have right to verify the facts of the Invoice, and if satisfied will approve/confirm the invoice.

 Approved/confirmed invoice shall be sent to the bank or necessary intimation sent to the bank to release the approved amount from the Escrow Account.  Promoter may be allowed to withdrawal of 50% profit from the Escrow Account on obtaining occupation certificate and balance 50% should be allowed to be withdrawn on completing all terms and conditions of registration.

RERA on receipt of a complaint or on recommendation of the Competent Authority may revoke registration, by serving 30 days notice in writing, if a Promoter: Makes willful default of T & C of Reg. certificate; Violates T & C of agreement with Competent Authority; and Involved in unfair practice or irregularities. Upon revocation of certificate, the RERA: Shall debar promoter from accessing the website and put his name in the list of defaulter; Shall Inform other Real Estate Regulatory Authorities about such cancellation; May recommend the Competent Authority to take such action as deemed fit including carry out remaining development work by itself or with the association of allottees.

2. A promoter shall not : Issue or publish an advertisement or prospectus or invite public to buy or book in such projects or take advances or deposits without obtaining a copy of certificate of registration from the RERA Publish any advertisement or prospectus without filing copy of the same with RERA. Accept any sum of money unless an SPA has been executed. 3. The promoter shall be liable to compensate to person(s) who make advance or deposit on the basis of incorrect or false information in advertisement or prospectus and return entire amount along with interest to the affected allottees. 4. The promoter upon execution of the SPA shall provide, site plan with structural design, stage wise schedule for completion, time schedule for connecting municipal services and compliance certificate signed by the owner, architect and structural engineer, to the allottees.

5. The promoter shall also be responsible for obtaining completion certificate from local authority, providing and maintaining essential services and take steps for formation of an association of allottees.

1. Appropriate governments shall establish RERA. The RERA shall be a body corporate having perpetual succession, common seal, with power, to acquire, hold and dispose of property, and to contract, and shall be capable of suing or be sued. 2.RERA shall consist of a Chairperson and not less than two whole time members appointed by the Appropriate governments on the recommendation of the selection committee. 3.The chairperson and other members shall have twenty and fifteen years professional experience respectively in urban development, housing, real estate development, infrastructure, economics, planning, law, commerce, accountancy, industry, management, social service, public affairs and administration. 4.The chairperson and members shall hold office for a term not exceeding three 3 years on until attain the age of 65 years, whichever is earlier.

6. A vacancy caused to the office of the Chairperson and members shall be filled within a period of 3( three )months from the date on which such vacancy occurs. 7.The Appropriate Government may remove chairperson or other members, if he has been adjudged as insolvent; convicted of an offence involving moral turpitude; become physically or mentally incapable of acting; has acquired such financial or other interest as may prejudicially affect their functioning; and has so abused his position as to render continuation in the office prejudicial to the public interest. 8.The RERA shall have powers to set up a dispute resolution mechanism for amicable settlement of disputes between the promoter and the allottees or the allottees themselves. 9.The RERA shall have power on a complaint or suo-moto to call upon such information or explanation from the promoter or appoint person to make an inquiry in relation to the affairs of any promoter, allotttees or any authority concerned. The RERA will have powers Civil Court under Code of Civil Procedure, 1908

10. The chairperson or a member, on ceasing to hold office, shall not, without approval of the Appropriate Government: Accept any employment or take up assignment with management or administration of any person associated with any work under the Act; Work, for or on behalf of any person or organization with respect to which chairperson or members, before cessation of office, had acted or provided advice to the RERA. Give advice to any person using information obtained during the tenure of employment with RERA or enter into a contract of service with, or accept an appointment to a board of directors of, or accept an offer of employment with, an entity with which he had direct and significant official dealings during the term of office. 11. The RERA shall take all possible measures for the growth and promotion of a transparent, efficient and competitive real estate sector and include-

To render advice and make recommendations to the Appropriate Government; To publish and maintain a website to records all real estate Projects applied for; To act as the nodal agency to co-ordinate efforts of the Appropriate Government; To fix standard charges through policy or guidelines, or regulations to be levied on the allottees by the promoter or association; To ensure compliance of the obligations cast upon the promoters and the allottees under the act, rules and regulation made there under To make an inquiry for compliance of its regulations, orders or directions; To enter the names of defaulter promoters on its website who have been penalized or whose proposed Project has been cancelled 12. Execution of orders of Authority: If any person fails to pay any penalty imposed upon him under the Act, the RERA shall proceed to recover such penalty in the prescribed manner.

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1. Punishment for non registration-Imprisonment up to 3 years, or penalty which may extend to 10% of the estimated cost of the project, or both. 2. Penalty for contravention of other provisions of Act- Penalty up to 5% of the estimated cost of the project. 3. Punishment for willful failure to comply with orders of the Authority- Penalty up to Rs 1,00,000 for every day which such default continues which may extend to 5% of the estimated cost of the real estate project. 4. Punishment for willful failure to comply with orders of Appellate Tribunal-Imprisonment up to 1 year or a penalty up to 10% of estimated cost of the project, or both.

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