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Real Estate

Title is a conclusion, not a document

Practice Area: Real Estate

Land in India is proved rather than looked up. A title opinion is built from the chain of registered instruments read against revenue and mutation records that do not confer title but contradict it usefully, encumbrance certificates, litigation and insolvency searches, tenancy and occupancy rights that survive a sale, land ceiling and agricultural conversion history, and the sanctioned use under the applicable master plan and development control regulations. Over that sits the transactional layer: conveyances, mortgages by deposit of title deeds and registered charge, leases which must be registered where they run beyond a year, leave and licence arrangements that are not leases and should not read like them, joint development agreements on area or revenue sharing with their attendant capital gains timing, development management arrangements, transferable development rights and additional floor space, and the completion and occupancy certificates without which possession is a liability. RERA sits across the residential and much of the commercial market, dictating registration, the form of the agreement for sale, the escrow of receipts, the timelines and the promoter's continuing obligations. Stamp duty and registration are state subjects and the difference between two states is often the difference in the structure.

Be it acquiring land for a plant or a warehouse and needing conversion and consents before a single foundation is laid, taking a hundred thousand square feet on lease and negotiating lock-in, fit-out, escalation and exit against a landlord's standard form, structuring a joint development with a landowner who wants area and not cash, financing a project against a mortgage that must be enforceable when it is needed, buying into a portfolio where the seller's title flows from a decades old partition, or holding a leasehold interest in an industrial estate where the allotment letter is the real governing document, the question is the same: what exactly is being transferred, and what survives the transfer.

We diligence to a conclusion and then write the conclusion into the document. Title findings arrive as indemnities, holdbacks, conditions precedent and vendor obligations to cure rather than as a list of observations, and where a defect cannot be cured we say what it is worth. The lawyers who run the diligence negotiate the conveyance, which is what keeps a known risk from being papered over between the report and the deed.

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