PUBLIC NOTICE- A HELPING HAND IN PURCHASE OF PROPERTY

(Bangalore property, 2 bhk apartments, flats, lands,studio for sale in Bangalore)

Readers of newspapers normally come across notices published regarding purchase of immovable properties. Let us analyze and understand the basis and scope of such notices.

Every purchaser of immovable property has to exercise proper care and diligence to ensure that the property to be purchased byhim/her is free from encumbrance, charge. Any failure on the part of purchaser to know whether the property is encumbered or free from encumbrance would land him in problem inasmuch as he would not be able to possess and enjoy the property purchased by him.

Section 55 of Transfer of Property Act, 1882 makes it mandatory that the seller is bound to disclose all material defects in the property or in his title thereto, which the seller is aware of and the purchaser is unaware. The seller is obliged to disclose all such information which the buyer cannot discover with ordinary care and prudence.Therefore,the purchaser of property should verify, search and utilize all the avenues available to ascertain whether the property intended to be purchased is free from encumbrance.

Deemed Notice

The Transfer of property Act puts some onus on purchaser and in certain cases, the purchaser is deemed to have notice of some encumbrance. Section 3 of Transfer of Property Act defines the notice. "A person is said to have notice of a fact, when he actually knows the fact, but also when he should have known the fact by diligence search, enquiries without gross negligence". This section explains that when registration of a document concerning any transaction of an immovable property is mandatory and accordingly when a document has been registered, any person acquiring such property or any part thereof or any share or interest in the said property shall be deemed to have information of the registered document. The Section further states that if any person is in actual possession of the property agreed to be purchased, the purchaser is deemed to have notice of encumbrance. Even if the agent of the purchaser acting on behalf of purchaser has the knowledge of any encumbrance on the property, the purchaser is deemed to have such notice.

Types of notices

There are three kinds of notices:

1. Actual notice when a person has the know ledge of actual fact.
2. Constructive notice where the information is available on proper enquiry and search.
3. Notice to the agent of the purchaser, where the information is given or received by the agent in the course of his ordinary duties, whether he communicates it to his principal or not. Notice to the active partner of a firm has the effect of notice to the firm.

Purchaser's Obligation:

Most of the encumbrance may be found out upon verification of records at jurisdictional Sub- registrar's office and from such other relevant property documents. It is obligatory on the part of all purchaser to verify the title as
recorded in registers of jurisdictional Sub-registrar's office and any omission to exercise this will amount to negligence.Just relying on encumbrance certificate issued by the registering authority is not enough. Registration of a document operates as a notice.

Actual possession of property by a person other than the seller also operates as notice of title. So the purchaser should invariably visit the property site to ascertain whether it is in possession of the seller or whether the same is under occupation of the person other than the vendor and whether such an occupant will vacate the property before registration.The seller has every right to get the property vacated from the present occupants before registration of property in favor of the purchaser or his nominee.

There are various instances wherein the properties are leased out, but the lease deeds are not registered. Section 19 of the Specific Relief Act 1963, recognizes 'possession' as a notice. It is the duty of the purchaser to ascertain whether the property under consideration has a clear marketable title.The advocate of the purchaser has to find out from various sources whether the property under consideration has a good marketable title and whether it is free from litigation. Proper enquires should also be made as to the claims of dependants under Hindu Adoption and Maintenance Act 1956.

Public Notice:

After exhausting all the means referred to above, the purchasers should also give a public notice of his intention to purchase the property and call for any objections from persons having claim over the property.There may be subsistin encumbrance,which are not registered and which cannot be discovered like prior agreement to sell.Therefore, issue of a public notice would help the purchaser to a certain extent to know the existence of prior encumbrance, if any. The purchaser may publish the notice generally after sale agreement is executed. The notice has to be published in two dailies one in English and another in the vernacular language, which have wide circulation in the area where the property is situated.

A notice is an announcement or information and sometimes acts as a caution. The notices prescribed under various Acts have a definite language and format while in certain other cases there is no prescribed format.

The requirements of a notice are:

1. It must be certain and clear with definite information to bind the party who issues notices and to enable the other to act upon it.
2. The notice should contain the intention of the purchaser to purchase the property; existence of the sale agreement and also the description and detailed schedule of the proposed property.
3. The notice should invite people having interest in the property to file objections, if any, with documentary evidence with the purchaser or his advocate within a stipulated time.
4. The notice should also state that in case no objections are received within the stipulated time, the sale process will continue treating the property as unencumbered and no objections will be entertained thereafter.

Notice to the public is only a precautionary measure and it is not binding on anyone having interest in the property. They may ignore the notice and many might not see the notice at all. The public notice serves as a notice to the general public that 'the purchaser is a bonafide purchaser of the property. Interested parties may prefer to lodge objections within the stipulated time. Objections received may be verified along with the document in possession of such people claiming interest to ascertain their genuineness.

Advocates though well experienced in tracing the title cannot make out existence of prior agreements, any mortgage by way of deposit of title deeds and pending court cases, if any. Public notice may help the purchaser to know whether there is any claimant for the property under consideration.If any claimant files objections the purchaser may request the seller to sort out the dispute before completion of the sale process or may cancel the deal.Thus, issue of public notice would not only help the prospective purchaser in ascertaining clear and marketable title of the property but also help the interested parties to have notice of the intended sale transaction and to put forth their claims over the property well before hand and to avoid post-sale litigations. 

For more details,

http://bangalore5.com

http://bangalore5.com/project_directory.php