*Any thing related to any legal matters we need to interpret in sequence to reach the logical conclusion.* This is thumb rule to understand any law or prudence. That's what has been said by Supreme Court as well.
So in our cases regarding the association land title. This is a subjective matter can't tell yes/no in objectivity.
1. Understand the sale deed superceded the sale agreement.
2. Understand the deed of individual declaration by owners.
3. Understand the deed of declaration by builder or deemed conveyance by builder.
4. Understand the 3 important process of land ownership transferred.
5. Understand the lease concept. (Optional)
6. Understand the bye-laws regarding daily functioning of society. (Optional)
Hence as an owner I have bought a flat, not a land plot, and builder has sold me the flat unit plus UDS because the flat validity is till 99 years on lease basis. So what shall I do after 99 years or in interim if the building got demolished due to many different reasons like reconstructing bigger building, Govt taking over or natural calamities etc so shall the owner can claim UDS.
*Now the question is from whom the owner will claim the UDS.*
You can say with whom the owner has registered the deed from that entity the owner can claim UDS. Fair enough here the builder is the entity with whom the owner has registered the deed of sale of flat. But now the builder has signed the deed about the whole apartment and transferred the management rights mentioned in sale deed to association. What has builder declared about land rights in the deed of declaration?
*Q: What is association and why has the builder make deed of declaration to association?*
Association is collection of signed or registered deed of declaration by individual flat owners, deed of declaration by builder about all common area related shares, bye-laws to govern the society, Govt approval papers, Land records and other licences etc. So association will act like a GPA general power of attorney on behalf of individual owners in all future legalities as a common entity. Also it will form a management committee to look after the daily functioning of society and legal common matters related to building and land.
Builder has made sale deed to individual flat owners about their flat and common area.
Builder has made the deed of declaration to association about common area of apartment.
*Now the question coming about the whole land rights or whole land record transfer?*
Any land ownership that is supposed to be transferred should go through 3 main process
1. Land agreement with valuation
2. Registered sale deed with taxable or non taxable
3. Land Demarcation mentioning East, North, South, West surrounding presence.
So the apartment land can't be transferred to individual flat owners because of UDS concept nor can be transferred to association through regular land transfer and mutation process. We need to check the change of apartment land title from name of builder to name of association through valid deed of declaration or deemed conveyance by builder subject to what they mention about whole land. Association literally means the common registered agreement by all owners. When the apartment land can't be transferred to individual owners then we are coming to the same square again when individual flat owners = association how the land title will be transferred to association representing same individual flat owners. Need to understand the change of land title and transfer of land title.
1) If the association is registered under State Apartment Ownership Act then all the unit holders can file deed of declaration including builder.
2) If the association is registered under State Co-operative Societies Act or State Ownership Flat Act. Deemed conveyance is allowed only if developer is missing or he is not ready to execute deed of conveyance in favour of the society.
What is deemed conveyance? Apartment land named after owners association or society is called as deemed conveyance.
Once the builder has made the deed of declaration to association. Now, has the land title changed from name of builder to name of association in Govt's revenue record? Basically our collective approach is to be ensured that the encumbrance certificate remains unaltered until we the association has not put our land title under mortgaged and is not misused.
When there is doubt about land mortgage by builder in case the land title isn't changed to association name. In fact as builder has made the deed of declaration to association then it will be illegal in their end to mortgage the association's apartment land violating their own deed of declaration in case anything mentioned about land title in their deed of declaration to apartment association.
Below is extra and can be ignored if above is too much to understand the legal terms and too unlikely 😃
*Q: What will happen if we get our UDS demarcated and transferred to individual flat owners?*
First of all there is no easy criteria for demarcating each UDS. The approach can be followed like parking allotment (let's assume) then what about common area division or demarcation. How to know how much land is available after each UDS? That's why the deed of declaration by each flat owners AND builder will supercede all future developments specific to whole land.
Suppose by some crooked channel I as an owner got my UDS transferred to my name sufficing all above 3 points and my UDS with demarcation is falling on a common area then that will create inconvenience to all based on my future actions. Suppose we group of owners tried to get our UDS transferred to our name with demarcation again it will create problem and sometimes I will have right to break a pillar as its presence is on my UDS piece of land.
