deciphering the legal and commercial aspects of rera

March 2016

Deciphering the legal and commercial aspects of RERA

2 Deciphering the legal anD c ommercial aspect s of rer a

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Deciphering the legal anD c ommercial aspect s of rer a 3

Major short term implications of RERA at a glance

What RERA entails for different stakeholders• Industry• Buyers• Developers

Soundbytes of significant stakeholders

Conclusions and unanswered questions

• Impact on prices• Impact on government agencies• Financial institutions• Retail investors/ Apartment funds• Brokers• Redressal system

Major short term implications of RERA at a glance


JLL Transparency Index 2014

20% reduction in the number of new launches of residential projects

10% increase in sales pan-India in residential sector

20% more funding from FDI into Indian realty

Retail speculator participation to go down

InDIA set to IMpRove Its posItIon on

tRAnspARenCy

Market2008 2010 2012 2014 2016

score Rank score Rank score Rank score Rank

India tier-I 3.34 50 3.11 41 3.07 48 2.86 40

Watch this

spaceIndia tier-II 3.38 52 3.17 49 3.08 49 2.9 42

India tier-III 3.65 62 3.39 55 3.15 50 3.14 50


What RERA will entail for different stakeholders?


the important Real estate (Regulation and Development) Act 2016, was recently passed in the parliament and it received the assent of the president of India on 25 March 2016. It has paved the way to setting up of a real estate regulator, which is proposed to be set up within one year from the date of coming into force of the Act, to deal with commercial and residential realty. In the interim, the appropriate government (i.e. thecentralorstategovt)shalldesignateanyotherregulatoryauthorityoranyofficer,preferablythesecretaryofthedepartmentdealingwithhousing, as the regulatory authority.

this is a major reform, which promises to bring in the much-needed transparency and accountability in the real estate sector. It will enhance consumer protection by facilitating that the consumer gets the product and on time as promised, thereby increasing consumer confidence as well as helping to create lasting developer brands strong on quality and timely delivery of their projects.

once it is implemented, ReRA will reduce the contrast seen in this sector in form of piling unsold inventory generallyfacedbyfly-bynightdevelopersandpriceriseinprojectsbyreputeddeveloperssincetheyhaverelativelylessunsoldinventoryandbuildthetrustbackfromitscurrentsituationoftrustdeficitbetweenthe two most important stakeholders – builders and buyers. ReRA will provide a positive impetus towards achievingthe“housingforall”visionwhileensuringalevel-playingfieldfordevelopersandbuyers.

Astherewillbestrictpunishmentforerrantdevelopersaswellasfinesforprojectdelaysandfasterredressal to consumer complaints, the problem of over structuring as is rampantly prevalent in the industry will be addressed. All in all, it will help make this sector more mature.

JLL InDIA AnD KHAItAn & Co AtteMpt to pRe-eMpt IMpLICAtIons oF ReRA on DIFFeRent stAKeHoLDeRs

InDustRy

It will disallow the common practice among many developers of pre-launching projects without getting requisite approvals from the local authorities and it will make mandatory project registration with the regulator. Developers will also have to disclose approval status, project layout and timeframe for completion to the regulator as well as customers.

the developer will now have to deposit 70% of the project funds in a separate account, which can only be used for the earmarked project. Diversion of funds to other projects was a major reason for project delays and this will address it effectively.

now, the buyers and developers will be liable to interest at the same overriding their agreement clauses. Buyers would also have the option to continue with compensation or to exit from a project that is delayed. Buyerwillalsohavethebenefitofsecurityregardingtitleofthelandandbuildinginwhichtheunitstheyareinterested in is being constructed which is required to be insured by the developer without prejudice to the continuing obligation of the developer to be liable to the buyer for defect in title of the land.

BuyeRs


the developer has to register their project (residential as well as commercial) with the Regulatory Authority before starting the sale process in such projects. In case a project is to be promoted in phases, then each phase shall be considered as a standalone project, and the promoter shall obtain registration for each phase.

Further, in case of ongoing projects on the date of commencement of the Act, which have not received acompletioncertificatepriortothecommencementoftheAct,thepromoterofsuchprojectisrequiredtomake application to the Regulatory Authority for registration of their project within a period of three months of the commencement of the Act.

The following types of projects shall not be required to be registered before the Regulatory Authority:

i. Where the area of land under development does not exceed 500 square meters or the number of apartments to be constructed in the project does not exceed eight apartments. this threshold has ensured that very small projects remain out of the ambit of this regulation; and we believe that even for those small projects, their developers will voluntarily abide by the ReRA conditions to ensure that these projects do not fall out of favour of buyers and to remain competitive. Also, the appropriate Government (Central and state Govt) may, if it considers appropriate, reduce the threshold limit below 500 square meters or eight apartments;

ii. ProjectswherethecompletioncertificatehasbeenreceivedpriortothecommencementoftheAct;developers are likely to focus on faster completion of their projects under construction and secure completioncertificatepriortotheformationofRERA(ortherelevantbodyfromthehousingdepartmentto be formed in the interim) and thus risk of project delays may come down along with slight increase in supply, both factors acting in favour of buyers.

iii. projects for the purpose of renovation or repair or re-development which does not involve marketing, advertising, selling and new allotment of any apartment plot or building.

The application for registration must disclose the following information:

i. Details of the promoter (such as its registered address, type of enterprise such proprietorship, societies, partnership, companies, competent authority for securing permissions);

ii. Abriefdetailoftheprojectslaunchedbythepromoter,inthepastfiveyears,whetheralreadycompletedor being developed, as the case may be, including the current status of the projects, any delay in its completion and reasons for the delay, details of disputes yet to be resolved or legal cases pending, details of type of land and payments pending etc.;

iii. Anauthenticatedcopyoftheapprovalandcommencementcertificatereceivedfromthecompetentauthority and where the project is proposed to be developed in phases, an authenticated copy of the approvalandcommencementcertificateofeachofsuchphases;

iv. Thesanctionedplan,layoutplanandspecificationsoftheproject,planofdevelopmentworkstobeexecuted in the proposed project and the proposed facilities to be provided thereof and the locational details of the project;

DeveLopeRs


v. proforma of the allotment letter, agreement for sale and conveyance deed proposed to be signed with the allottees;

vi. number, type and carpet area of the apartments and the number and areas of garages for sale in the project;

vii. the names and addresses of the promoter‘s real estate agents, if any, and contractors, architects, structuralengineersaffiliatedwiththeproject;and

viii.Adeclarationbythepromotersupportedbyanaffidavitstatingthat:

a. he has a legal title to the land, free from all encumbrances, and in case there is an encumbrance, then details of such encumbrances on the land including any right, title, interest or name of any party in or over such land along with the details;

b. the time period within which he undertakes to complete the project or the phase; and

c. 70% of the amounts realised for the real estate project from the allottees, from time to time, shall be deposited in a separate account to be maintained in a scheduled bank which shall be used to cover costofconstructionandlandofthatspecificprojectonly.Thefactthat70%oftheamountrealizedfrom allottees/unit purchasers is to be used for land and cost of construction coupled with the fact developer launching the project and registering the project is entitled to declare encumbrance of the land gives the impression that money received from allottees/unit purchases may be used for repayment of cost incurred for acquisition of land as well as cost incurred for construction. the fact that money has to be deposited in a separate account and used for the cost incurred towards project only will bring out transparency and encourage nBFCs and lenders to invest more in this sector.


CARpet AReA Developers can sell units only on carpet area,whichisthenetusablefloorareaofanapartment.this excludes the area covered by the external walls, areas under services shafts, exclusive balcony or verandah area and exclusive open terrace area, but includes the area covered by the internal partition walls of the apartment.

some prominent developers have started quoting by carpet area, the rates for which are naturally higher than prices quoted for saleable/ built-up area. In some metro cities like Mumbai, this trend is already visible. Developers in other cities could follow suit, soon.

ReRA will also help tier-II and tier-III developers in tier-I cities and tier-I developers in tier-II and tier-III cities as they will be able to attract pe funding with the increase in transparency owing to this Act. Currently, around 80-85% of PE funds invest in the tier-I developers of the country as they have a good corporate governance structure and maintain transparency.

tier-II and tier-III cities, which mostly do not appear on the pe investment radar currently, also stand to gain from the increased transparency in the sector. this will help developers operating in these cities. once developers start maintaining transparency and improve their track record, demand is bound to return to the market in a big way. this will result in buyers starting to have more confidenceintier-IIandtier-IIIdevelopers.

RestRICtIon on CHAnGInG pLAns the promoter cannot make any other addition or alteration in the approved and sanctioned plans, structuraldesignsandspecificationsofanapartmentwithoutthepreviousconsentoftheallotteewho has agreed to take the apartment. the promoter also cannot make any other addition or alterationintheapprovedandsanctionedplans,structuraldesignsandspecificationsofthebuildingand common areas within the project without the previous written consent of at least two-thirds of the allottees, other than the promoter, who have agreed to take apartments in such a building.

stRuCtuRAL DeFeCt In case any structural defect or any other defect in the workmanship, quality or provision of services or any other obligations of the promoters is brought to the notice of the promoter within a period of five years by the allottee from the date of handing over possession, the promoter shall rectify such defect without any further charge, within thirty days. If the promoter fails to rectify such defect within such time, the aggrieved allottee shall be entitled to receive appropriate compensation in the manner as provided in the Act.

Prominent developers in

tier I cities have already aligned

and started quoting prices by carpet area.

Others will soon follow suit.


ADveRtIseMent the advertisement or prospectus issued or published by the promoter should prominently mention the website address of the Regulatory Authority, where all details of the registered project have been entered and include the registration number obtained from the Regulatory Authority and other similar details.

Where a buyer makes an advance or a deposit on the basis of the information contained in the notice, advertisement or prospectus and sustains any loss or damage because of any incorrect, false statement included in these, he shall be compensated by the promoter in the manner as provided under the Act. Also, if the buyer affected by such incorrect, false statement contained in the notice, advertisement or prospectus, intends to withdraw from the proposed project, his entire investment (along with interest at such rate as may be prescribed and compensation in the manner provided under the Act), will be returned to him.

MAnDAtoRy DeposIt oF 70% oF ReALIsAtIon the Act mandates that a promoter shall deposit 70% of the amount realised from the allottees, from time to time, in a separate account to be maintained in a scheduled bank. this is intended to ensure that adequate funds remain available for completion of the project on time.

the promoter shall be entitled to withdraw the amounts from the separate account, to cover the cost of the project, in proportion to the percentage of completion of the project. However, such withdrawal can onlybemadeafteritiscertifiedbyanengineer,anarchitectandcharteredaccountantinpracticethatthewithdrawal is in proportion to the percentage of completion of the project.

Thepromoterisalsorequiredtogethisaccountsauditedwithinsixmonthsaftertheendofeveryfinancialyear by a practicing chartered accountant. Further, he is required to produce a statement of accounts dulycertifiedandsignedbysuchcharteredaccountant,anditshallbeverifiedduringtheauditthat(i)theamounts collected for a particular project have been utilised for the project; and (ii) the withdrawal has been in compliance with the proportion to the percentage of completion of the project.

RestRICtIon on tRAnsFeR AnD AssIGnMent the promoter shall not transfer or assign his majority rights and liabilities in respect of a project to a third party without obtaining prior written consent from two-thirds of the allottees, and without the prior written approval of the Regulatory Authority.

the allottee, irrespective of (i) the number of apartments or plots booked by him or booked in the name ofhisfamily;or(ii)inthecaseofotherpersonssuchascompanies/firms/anyassociationofindividuals,by whatever name called, booked in its name or booked in the name of its associated entities/related enterprises, shall be considered as one allottee only.

Currently, around 80-85% of PE

funds invest with tier I developers in bigger cities.

Increased transparency and

good corporate governance

structure will now benefit tier-

II and tier-III developers in these cities as

they stand to gain this share.


ReFunD oF AMount In CAse oF DeLAy In HAnDInG oveR possessIon In case the promoter is unable to hand over possession of the apartment, plot or building to the allottee (i) in accordance with the terms of the agreement of sale; or (ii) due to discontinuance of his business as a promoter on account of suspension; or (iii) revocation of his registration or for any other reason, then the promoter shall be liable, on demand being made by the allottee, to return the amount received by him from the allottee with interest and compensation at the rate and manner as provided under the Act. this relief will be available without prejudice to any other remedy available to the allottee.

However, where an allottee does not intend to withdraw from the project, he shall be paid interest by the promoter for every month of delay, till the handing over of the possession, at a prescribed rate.

LIMIt on ReCeIpt oF ADvAnCe pAyMentA promoter shall not accept a sum more than 10% of the cost of the apartment, plot, or building, as the casemaybe,asanadvancepaymentoranapplicationfee,fromapersonwithoutfirstenteringintoawritten agreement of sale with such person and register the said agreement of sale, under any law for the time being in force.

otHeR pRovIsIons a. the promoter shall execute a registered conveyance deed in favour of the (i) allottee in respect of the

apartment, plot or building; and (ii) association of allottees of competent authority in respect of the undivided proportionate title in the common areas, and hand over possession of the same within the periodasspecifiedunderthelocallaws.Intheabsenceofanylocallaw,suchconveyancedeedshallbecarriedoutbythepromoterwithinthreemonthsfromdateofissueoftheoccupancycertificate.

b. After the promoter executes an agreement for sale for any apartment, plot or building, no mortgage or charge can be created by the promoter on such apartment, plot or building. If any such mortgage or charge is created, then notwithstanding anything contained in any other law for the time being in force, it shall not affect the right and interest of the allottee who has taken or agreed to buy such apartment, plot or building.

c. the promoter may cancel the allotment only in terms of the agreement for sale. However, the allottee may approach the Regulatory Authority for relief, if he is aggrieved by such cancellation and such cancellation is not in accordance with the terms of the agreement for sale, is unilateral and without any sufficientcause.

A promoter shall not accept

a sum more than 10% of

the cost of the apartment as an advance

payment or an application fee


d. every allottee shall take physical possession of the apartment, plot or building as the case may be,withinaperiodoftwomonthsoftheoccupancycertificateissuedforthesaidapartment,plotor buildings.

e. In the absence of any local laws, an association or society or cooperative society, as the case may be, of the allottees, shall be formed within a period of three months of the majority of allottees who have booked their plot or apartment or building, as the case may be, in the project.

f. the Regulatory Authority shall make recommendations to the appropriate Government on (i) creation of a single window system for ensuring time-bound project approvals and clearances for timely completion of the project; and (ii) creation of a transparent and robust grievance redressal mechanismagainstactsofomissionandcommissionofcompetentauthoritiesandtheirofficials.

LIquIDIty FoR DeveLopeRsAs developers will have to keep 70% of their money in a separate account, it may result in cash flow issues in the short term. However, as demand returns in the long term and PE funds take renewed interest in the sector, they will stand to benefit overall.

Amongst other reasons, diverting funds by developers to other projects was one of the major reasons for delays. either way, a developer will now be forced to use the project accruals for development of the same project and will have little room for fund manipulation. this may not have abigimpactonindividualprojects’cashflows;althoughatanentitylevel,thedeveloperwillhaveto manage funds more judiciously as he will have to stick to project timelines in order to avoid the penalties involved.

there were concerns about being fair with developers who have to bear high land cost upfront, in cities like Mumbai. In our view, Mumbai’s case will be no different because even if land prices are high in the city, the commensurate realisations from sale of apartments are also high. It thus underlines the importance of aligning the product with the market demand, pricing it in accordance with affordability and being resilient in pricing to maintain required sales velocity. In instances whereaprojectisfindingdifficultyinselling,thedevelopermaythinkofsellingstakesinthatprojectto some other entity who may manage the project in a better way. We do expect the frequency of project level stake sales and/or joint ventures to rise going forward. the developers who are presently sitting on land banks may also consider not pre-selling developing projects and would concentrate on raising funds for construction and selling their products. this will reduce the risk for the developers and will also provide enhanced returns to the developer.

70% money in a separate account may lead to cash

flow issues in the short term,

but renewed end user demand and

PE interest will greatly benefit in

the long term

RERA should place more

accountability on govt agencies

for a time-bound approval

processes & penalties for

failing to adhere to time-bound

approvals


IMpACt on pRICe the cost of capital for developers will go up because they will have to nowlookforequityratherthanstructureddebttofinancelandbuys.Thisis because developers cannot sell homes before they get all the project approvals.Thismeanstheycouldfindittoughtopayinterestiftheytake debt to buy land. Developers will also have to manage seamless construction to ensure completion of their projects on time due to the penalties involved.

Bankswillplayaroleininfluencingprices.Banksarelikelytostart funding for land purchases as well, although with riders (e.g. construction start date), which can keep land acquisition costs in check. Degreeofparticipationofbankswithdebtofferingsthuscaninfluencedevelopers’dependenceonprivateequity.Eveniftheequityfinancecosts go up, the developers won’t risk passing it on to the buyers in the current scenario of weak market conditions, helping prices to remain stable.

As developers will have to sell on the basis of carpet area alone, there could be a revision in capital values across cities as well as the cost of compliance. the former, however, may not affect the end-users as the total cost would continue to be the same as when they were charged on super built-up area.

there is a need to look into determining and publishing stamp duty rates and premium FsI rates on carpet area basis for consistency and to avoid increase in compliance cost.

Given that builders will be left with restricted surplus liquidity until project completions, rise in land prices is also expected to remain under check asdeveloperswouldfinddifficulttoacquireplotsusingprojectrevenues.

IMpACt on GoveRnMent AGenCIesA major drawback of ReRA is that it misses out on placing higher accountability for government agencies. there are no punitive measures recommended on sanctioning authorities for delays in approvals.

the price rise seen in previous years across India, was also due to the fact that developers faced delays in getting approvals, which increased project and land holding costs. With the central government moving most approvals online and urging state governments to do the same as also planning to come up with a credit rating mechanism for civic bodies, the entire approvals’ process is expected to shorten over the next few years.

Calculation by carpet area could lead to revision of capital values across board, end-users will still shell out the same cost as they

were bearing before, unless there is a revision in circle/ ready

reckoner rates.


FInAnCIAL InstItutIonsBankswillfindthemselvesinmoresecuresituationwithprojectcashflowsoperatedfromaprojectspecificseparate account thus adding comfort to debt servicing by the developer, but at the same time, they will revisit debt product offering and revise terms owing to the fact that they will prefer to link debt servicing possibility for one not-so-successful project from project accruals of another successful project by the same developerevenifitmeansnothavingafirstchargeontheprojectcashflow.

the typical product offering of a bank will change from the typical term loan to overdraft (as corporate loans willalsogetmoredifficulttoobtain).AnotherimplicationisthatLeaseRentalDiscounting(LRD)couldgoupdue to this.

RetAIL InvestoRs/ ApARtMent FunDs on the other hand, individual or group investors (also known as apartment funds) who mostly invested in the residential asset class with an intention to exit even before the project is completed, will have to participate as lenders and not as investors. they will have to be prepared for a longer period (at times, up to completion of projects) for making returns on their funds lent.

BRoKeRsIn addition to the promoter and allottees, ReRA also brings real estate brokers, who facilitate the sale and purchase of units in a project, within its ambit. India has had real estate broking as one of the easiest businessestodo.Itcalledfornospecificqualification,experienceorcodeofpracticeandthegovernmentagenciesonlyprescribedguidelines–ratherexpectationsfromthebrokingcommunitywithoutdefiningrolesand responsibility.

no wonder India has thousands of brokers in her big cities, hundreds of them in smaller cities and quite a few even in her villages. very few of them work with professional companies whether international or domestic, and for many of them, property brokerage is just a side business. Hence, brokerage business ingeneral,islinkedwithlackofprofessionalism,accountabilitydeficit,opacityinactivities,andalengthy,costly dispute resolution mechanism, all of which will become history after a few months.

RERAdemandsallpropertybrokersberegisteredwiththeregulatortobequalifiedfordoingpropertybrokerage business. While we do not expect the regulator to introduce qualifying criteria immediately, this registration will be conditional to brokers’ acceptance of accountability and code of business practice. this will bring in transparency and responsibility, the two virtues this sector needs badly.

Steadily,overaperiod,theregulatorwillalsobringinqualificationcriteria–intermsoftrainingtobeacquired and professional experience to be had as trainee brokers, thus raising the standards of services for the consumers hiring them. this, in turn, will lead to introduction and development of real estate brokerage-related vocational training and inclusion of real estate-related courses in degree and diploma colleges, and other autonomous institutions. India’s technical education Board will hopefully develop a real estate education programme as a guideline for the colleges to follow.

The unorganized brokerage

business which is linked

with lack of professionalism, accountability

deficit and opacity in

activities will become history in the next few

months


ReRA also requires developers to appoint only brokers registered with the regulator for selling and thus, primary market will be out of bounds for brokers not registered. It will be just a matter a time before the regulator will push this condition for the secondary market as well. It clearly means that going forward, this fieldwillallowonlythosetofunctionwhotreatpropertybrokerageasprimarylivelihoodactivity,attainanddemonstrate professional and responsible business practice, have training and experience in property business and who aspire to make a prosperous career in it.

Consolidationisboundtohappenandhundredsofparttimebrokerswillhavetoleavethefield.Evenforthefull-time brokers, it will be a serious business to be engaged in. to remain relevant, they will have to have a certain minimum scale, skill and sophistication to demonstrate.

ReDRessAL systeM acceptance or refusal of registrationa. upon receipt of an application by the promoter, the Regulator Authority shall within a period of 30 days,

grant or reject the registration.

b. upon granting a registration, the promoter will be provided with a registration number, including a login Id andpasswordforaccessingthewebsiteoftheRegulatoryAuthorityandtocreatehiswebpageandtofillin the details of the proposed project.

c. If the Regulatory Authority fails to grant or reject the application of the promoter within the period of 30 days, then the project shall be deemed to have been registered. the industry’s concern here is how to implement this and how to ensure that the details of project deemed approved are disclosed in the same way for formally approved projects and how to ensure such projects also follow the Act.

d. the registration, if granted, will be valid until the period of completion of the project as committed by the promoter to the Regulatory Authority. this period shall be extended by the Regulatory Authority due to forcemajeureandonpaymentofsuchfeeasmaybespecifiedbyregulationsmadebytheRegulatoryAuthority or in reasonable circumstances not due to default of the promoter for a period not exceeding one year in aggregate.

lapse or revocation of registration

a. the registration of the project / phase of the promoter shall lapse if the promoter fails to complete the projectwithinthetimeperiodspecifiedatthetimeofregistrationortheextendedperiod.

b. In the event the registration is lapsed then the Regulatory Authority may consult the appropriate Governmenttotakesuchactionasitmaydeemfitincludingcarryingoutoftheremainingdevelopmentwork by the competent authority or the association of allottees or in any other manner as may be determined by Regulatory Authority.

c. the Regulatory Authority may revoke the registration granted on receipt of a complaint or suo moto or on the recommendation of the competent authority in case (i) the promoter makes a default in doing anything required under the Act or the rules or regulations made thereunder; (ii) the promoter violates

Consolidation is bound to happen and hundreds of part time brokers will have to leave

the field.


any terms of the approvals granted for the project; and (iii) the promoter is involved in any kind of unfair practice of irregularities.

d. IntheeventtheregistrationisrevokedbytheRegulatoryAuthority,theRegulatoryAuthorityshall:

i. debar the promoter from accessing the website in relation to the project, specify his name in the list of defaulters on its website and also inform other Regulatory Authorities in other states and union territories about such cancellation;

ii. facilitate the remaining development works to be carried out by competent authority or the association of allottees or in any other manner as may be determined by the Regulatory Authority. However, the associationofallotteesshallhaveafirstrightofrefusalforcarryingouttheremainingdevelopmentworks; or

iii. directthescheduledbankholdingtheprojectbankaccount,tofreezetheaccountandthereaftertakesuchfurthernecessaryactions,includingconsequentde-freezingoftheaccount,forfacilitatingtheremaining development works in the manner mentioned above.

Website of the regulatory authority

a. the promoter shall, upon receiving his login Id and password, create his web page on the website of the RegulatoryAuthorityandenteralldetailsoftheproposedprojectincluding:

i. details of the registration granted by the Regulatory Authority;

ii. quarterly up-to-date list of the number and types of apartments or plots or garages, as the case may be, booked;

iii. quarterly up-to-date status of the project along with the list of approvals obtained and approvals pendingsubsequenttocommencementcertificate;and

iv. suchotherinformationanddocumentsasmaybespecifiedbytheregulationsmadebytheRegulatory Authority.


real estate appellate tribunal

a. In addition to the establishment of the Regulatory Authority, the Bill also proposes to establish a Real estate Appellate tribunal (Appellate tribunal) within one year from the date of commencement of the Act.

b. Any person aggrieved by any direction or decision made by the Regulatory Authority or by an adjudicatingofficer,maymakeanappealbeforetheAppellateTribunalwithinaperiodof60daysfromthe date of receipt of a copy of the order or direction.

c. the Appellate tribunal shall deal with the appeal as expeditiously as possible and endeavour shall be made to dispose of the appeal within a period of sixty days from the date of receipt of appeal.

d. the Appellate tribunal shall have same powers as a civil court and shall be deemed to be a civil court. AnappealagainsttheorderoftheAppellateTribunalmaybefiledbeforethejurisdictionalHighCourtwithin a period of sixty days from the date of communication of the decision or order of the Appellate tribunal.

adjudicating officer

For adjudging the compensation to be paid by the promoter in accordance with the provisions of the Act, the Regulatory Authority shall appoint (in consultation with the appropriate Government) one or more judicial officersasdeemednecessary,whoisorhasbeenaDistrictJudge,tobeanadjudicatingofficerforholdingan inquiry in this regard. However, such an appointment will be made after giving any person concerned a reasonable opportunity of being heard.

offences and penalty

a. stringent penal provisions have been prescribed under the Act against the promoter in case of any contravention or non-compliance of the provisions of the Act or the orders, decisions or directions of the RegulatoryAuthorityortheAppellateTribunalwhicharethefollowing:

i. If promoter does not register its project with the Regulatory Authority – the penalty may be up to 10% of the estimated cost of the project as determined by the Regulatory Authority;

ii. If promoter does not comply with the aforesaid order of the Regulatory Authority - imprisonment of up to three years and a further penalty of up to 10% of the estimated cost, or both; and

iii. In case the promoter provides any false information while making an application to the Regulatory Authority or contravenes any other provision of the Act – the penalty may be up to 5% of the estimated cost of the project or construction.

these penal provisions have also been prescribed for any contravention or violation committed by the real estate agent or the allottee.

RERA, a central act rides over

state acts of same nature


b. If any allottee fails to comply with, or contravenes any of the orders, decisions or directions of the Regularity Authority, there may be a penalty for the period during which such default continues, which may cumulatively extend up to 5% of the cost of the plot, apartment or building, as the case may be, as determined by the Regulatory Authority. Further, if any allottee fails to comply with, or contravenes any of the orders or directions of the Appellate tribunal, this may entail imprisonment up to one year or with fine for every day during which such default continues, which may cumulatively extend up to 10% of the cost of the plot, apartment or building, as the case may be, or with both.

overriding effect

the provisions of this Act shall have an overriding effect in case there is any inconsistency between the provisions contained in this Act and in any other law (including a state law) for the time being in force.

the Maharashtra Housing (Regulation and Development) Act 2012 has been repealed by the Central Government.


Conclusions and unanswered questions


In essence, the Bill intends to increase transparency and accountability in the real estate sector, by providing mechanisms to facilitate and regulate the sale and purchase of commercial and residential units/projects and timely completion of projects by the promoters.

now, the challenge before the Government would be to establish the Regulatory Authority (or any other authority, in the interim) within the timeline prescribed under the Act in order to start implementing the provisions of the Act effectively.

Also,asingle-windowclearanceisneedednow,withoutwhichtheremaybecaseswherebona-fidedelaysbydevelopersmaystillresultinanunfairpenalty.Thetimetakentogetmanyenvironmental,state-levelandmunicipal-levelclearanceshaveafflicteddevelopersforlong.Thecentral government, on its part, has been working to streamline approvals and has set up a 30-day approval period recently. the Model Building Byelaws have also been released.

There are, however, questions that need answers:

• While the accountability of buyers, developers and brokers has been set, where is the accountability for government agencies?

• Moreclarityneededonif,andwhat,changeswillhavetobeimplemented by under-construction projects. there maybe many projects having all the clearances and approvals currently but no separate project account maintained or less than 70% of the project accruals used for the same project, what will be the likely treatment for those projects.

• Moreclarityneededonplotteddevelopmentasitaffectsamajorityof home buyers, especially outside the metros.

• Whatistheminimumamountinaseparateaccountthatthestatescan implement? the Centre has prescribed 70% with an allowance toStateGovt.toreduceit,isthereislowerceilingdefined?

• HowsoondoweanticipatetheimplementationofthisBill?Asitrequires cooperation from all states, the implementation could be delayed.

All in all, the incumbent government has succeeded against various odds and given Indian real estate its most valuable card. The bill is a verdict to end the age of information asymmetry, lack of accountability and unwarranted project delays, and marks the beginning of rising transparency, liquidation of assets – and, importantly, positive sentiment.


tHe neW InDIAn expRessTheindustryfeelsthegovernmentshouldfixaccountabilityofallstakeholders, including government authorities and local urban bodies. Developers are also worried they will be penalised for delays in project completion, even if it is due to delayed government approvals.

“We wish sanctioning authorities were included in the Bill without bringing them on board, delays would continue in implementation of projects,” Navin Raheja, MD, Raheja Developers, told the new Indian express. R K Arora, Chairman, Supertech said the Bill should engage approving authorities so that projects don’t get delayed.

tHe eConoMIC tIMes“Real estate regulatory bill should not act as a barrier for small developersandthegovernmentshouldofferbetterfinancingmechanisms for their survival,” said Dr. Madalasa Venkataraman, Faculty, Indian Institute of Management - Bangalore.

experts said giving industry status to the real estate sector or a relook at the sensitive sector exposure limits of the Reserve Bank of India might help ease this problem.

“Thebillaimstoflushoutthenonseriousplayers,whodivertfundsfrom one project to another, which might lead to consolidation for sure,” said V Suresh, Former chairman and managing director, HUDCO and Advisor Good Governance and Municipalika.

Compliance cost for builders is set to increase, which might get passed on to the end consumers in the next 12-18 months. “However, we can see stabilisation of prices in the next 24-48 months,” said Om Ahuja, CEO, Residential business, Brigade Enterprises Ltd.

venkataraman from IIM-Bangalore, however, feels prices could also go down. “short term compliance cost will surely go up, but if approval process is properly implemented, with builders having proper source of funding, we can see home prices going down,” she said.

the bill mandates the regulatory authority to provide project approvals within 60 days, failing to do so without any communication to the developer can be considered as deemed approval. However, each state will now have to form their own regulator, and have liberty to set the timelimit of approval process.

tHe tRIBune“there are some provisions like imprisonment which are harsh and may be passage with the time they will be set right,” DLF Chief Executive Rajeev Talwar told the tribune. He also questioned why the government authorities have not been included in the Bill.

Amit Modi, Director, ABA Corp and Vice-President CREDAI Western UP, also, expressed concern over all stakeholders not being made equally accountable. “projects are often delayed due to graft in the issuance of permits and clearances. Government agencies issuing permits should be brought under the law and made accountable for undue delays. on an average it takes 2-3 years to start a project after land is acquired; by this time the cost of land rises by 24-30 per cent due to hefty interest payments as bank loans are not available for procuring important raw material in this sector. the added cost ultimately gets passed on to the customer. these costs can be curtailed and passed on to the consumer, if developers can start building faster and also deliver larger volumes quicker for the consumer”, he said.

“the whole process of approvals must be made online to reduce corruption and bribery, which is rampant in the business, and unless there is a single-window clearance, low-cost housing will never happen in this country and restrictive ad-hoc rules on usage must go,” said Modi

Anita Arjundas, MD, Mahindra Lifespace, said, “speedy action on single-windowapprovalswillenablemoreefficientuseofcapitalandalso support timely delivery.”

Soundbytes of significant stakeholders


tHe eConoMIC tIMesIndustry body Credai’s Bengal president Sushil Mohta said the bill will bring more transparency to the sector.

“Itwasnecessary,butnotsufficient,toroutemoreforeigninvestmentsin the country. unless the process of project sanctions, approval and clearancesgetsimplified,foreigninvestmentwouldnotcomeinabigway,” he said.

tHe eConoMIC tIMes “ultimately the issues related to home buying will need to be sorted out at the state level, getting the act passed in parliament has been only one half of the struggle. the actual struggle is to get the law adapted by the state assemblies. And the local groups of ReRA in every state will help to push that forward,” Indrish Gupta, co-founder, Fight for RERA said.

Thegroupsaidthereisaneedforclarificationontheimplementationof ReRA. “once it comes to the state level, the ground realities of this act will surface. We are mobilising activity at state level, across the country to keep the ball rolling,” Alok Kumar, co-founder, Fight for RERA, and president of Ghaziabad Apartment Owners Welfare Association, said.

tHe eConoMIC tIMes“the provision in the draft bill to escrow a portion of the sales proceeds for construction purposes will ensure timely completion and stop the diversion of funds to purchase land or for the launch of other projects. the sector is now closer to getting a regulator,” said Vinay Betala, associate director, India Ratings & Research, which is a Fitch group company.

“the surplus cash available to companies to purchase land is likely to reduce and this may result in the higher reliance on joint venture projects with land owners. since all approvals need to be in place prior to project launches, it will reduce delays and ensure timely implementation of projects,” Betala said.


Authors

Strategic Oversight

Amit Wadhwaniprincipal AssociateKhaitan & Co+91 22 6636 [email protected]

Sudip Mullickpartner, Real estateKhaitan & Co+91 22 6636 [email protected]

Sparsh Sharma Assistant Manager, ResearchJLL | India +91 22 6620 [email protected]

Anuj PuriChairman & Country Head, JLL | India +91 22 6620 [email protected]

Ashutosh Limaye Head of Research & ReIsJLL | India +91 22 6620 [email protected]

Haigreve Khaitan partnerKhaitan & Co+91 22 6636 [email protected]

Ramesh NairChiefOperatingOfficer-Business& International DirectorMRICs | JLL India+91 22 6620 [email protected]

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deciphering the legal and commercial aspects of rera

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