All-important Occupation Certificate can tilt the scales Anil Harish

 Buying a flat can fall into two different categories: a) when the building is under construction, and b) when the building is completed. 

    When a building is under construction, the Maharashtra Ownership of Flats Act (MOFA) applies. This requires the builder to enter into an agreement in a specified form and attach a Commencement Certificate (CC), which in Mumbai means the IOD (Intimation of Disapproval) and CC. The title has to be set out in the recital to the agreement and a title certificate from a lawyer has to be attached. 
    Where then does the difficulty lie if MOFA requires all this? Even if the builder prepares a MOFA-compatible agreement and attaches a certificate of title and an IOD/CC, a major issue that can come up later is that the Occupation Certificate (OC) is not given because of a problem that occurs after construction commences. Such a problem could be over extra FSI utilization, non-adherence to approved plans, a delay in construction or even a rule change. 
    The BMC has delayed OCs in the past few years and it seems several buildings in Mumbai do not have such certificates. Therefore, if a person enters an agreement to buy in an under-construction building, and all the documents appear to be in order, the difficulty could still arise later. In such a situation, even a buyer who has taken prec a utions may find his title unclear. 
    The other category involve buildings that are completed. A person may buy a flat either from an actual user or, in a few instances, from a developer. In such cases, the buyer must check the title carefully. What does this involve? This would mean seeing the history of the property, how the land devolved and how the developer came to carry out construction. It would mean checking the construction precautions. 
    Apart from these issues, there are other aspects to be considered. Much of Mumbai is leasehold land. The Mumbai Port Trust, collector, BMC, central government, Mhada, SRA, MMRDA and private interests lease out land. The lease period, terms and conditions should be checked. Several of these leases are expiring and till now many tenants thought they were protected under the Rent Control Act and did not have to vacate. 
    (Anil Harish is an advocate)