INTERPLAY OF LEGAL FRAMEWORK AND RERA REGULATIONS

Ajay Sharma- Managing Director, Valuation Services, Colliers India started off by saying, “There are multiple overlays of multiple laws that exists in case of property and land. The various stakeholders especially in the judiciary system have an important role in the interpretation of RERA, the legal framework and the constitutional validity of the statutory provisions.”

Dr Vijay Satbir Singh, Former MahaRERA Member said, “RERA is a central government act and is applicable in every state except J&K. Although the RERA implementation and interpretation is different from State to State, in Maharashtra it has been very effective. By and large, all states have started taking action and authorities have been constituted and working very well.”

G Vivekanand, Partner, Indus Law shared, “The government is now setting up a committee to work on a model builder-buyer agreement to help streamline the home buying process and protect consumers.”

Santosh Pandey, CEO, Sarthak Advocates & Solicitors added, “Section 40 of RERA deals with the recovery of interest or penalty or compensation and enforcement of order, etc in case of noncompliance. And Section 43 sub-section 5 has been upheld where any promotor has to pay 30% of the penalty and in some cases 100 per cent of the interest.”

Aruna Kumari, Senior Partner, Kochar & Co. stated, “According to the Supreme Court the provisions of RERA are in addition to the already prevailing laws. This means that RERA is an addition and not a derogation of any law, thus, remedies under RERA are additional and not exclusive in nature.”

Farid Karachiwala, Partner, JSA Advocates & Solicitors highlighted the case of a joint development where each partner has an equity position, “The JD partners are recognized as promoters and allottees rights are protected notwithstanding any private dispute which is ongoing between JD partners and that is what the RERA Tribunal and Appellate have consistently held.”

CONTENTIOUS ISSUES

Dr Vijay Satbir Singh spoke about the lease agreements and RERA interplay. “The projects where the building, land or an apartment is on a long term lease then they are covered by RERA. Under Section 2B MahaRera had clarified that lease beyond five years comes within the purview of the RERA.”

Santosh Pandey added, “The Supreme Court has gone on record stating homebuyers have concurrent remedies under Consumer Protection Act, RERA, and IBC and not to forget the arbitration. RERA is beneficial and has got wider scope than Consumer Protection Act.”

Aruna Kumari stated that in case of Consumer Protection Act, RERA neither overrides its provisions nor is there a need to consider both the acts while reaching an inference in a case. “RERA can be considered an extension of the Consumer Protection Act, to address the growing need for transparency in favour of consumers as well as builders.”

Ajay Sharma further shared, “In case of a problem of obtaining the deemed conveyance of land in the cities like Mumbai for redevelopment projects, there are provision under the MoFA to apply for conveyance and register a project.”

Farid Karachiwala added, “In case of a redevelopment project, so far, the alternate accommodation agreements with the displaced residents are not covered under RERA. The word allottee means sale of premises and when you are giving them premises in lieu of property which they already had, it is not construed as sale.”

G Vivekanand, Partner, Indus Law said, “There are several grey areas that need to be dealt with in RERA such as the remedies of RERA are inapplicable if the completion certificate is obtained before its enactment since it would not qualify as an ongoing or new real estate project, therefore leaving the allottee vulnerable.”

What is required is a stricter enforcement of the RERA orders and penalties.

As per apex court, RERA and IBC must “coexist” and in case if there is any conflict of laws, “RERA must give way to the Code.”

Short lease and term lease agreements like leave and licence, renter agreements are not considered under RERA.

In case of a dispute between JD partners aggrieved allottees can approach RERA if the project is stalled.