Types of Power of Attorney

There are two main types of Power of Attorney:

1. General Power of Attorney (GPA): This grants the agent broad powers to act on your behalf for almost any legal or financial matter.

2. Special Power of Attorney (SPA): This grants the agent specific powers to act on your behalf for particular tasks, such as selling a property.

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 Why Use a Power of Attorney for Selling Property?

For NRIs, using a Power of Attorney can simplify the process of selling property in India. It allows you to:

1. Authorize a trusted person to handle the sale.
2. Avoid the need to travel to India for every step of the process.
3. Ensure that the transaction is completed legally and efficiently.

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Steps to Selling Property Using Power of Attorney

Here’s a step-by-step guide to selling property in India as an NRI using a Power of Attorney:

 Step 1: Choose the Right Person

Select a trustworthy person to act as your agent. This could be a relative, friend, or professional such as a lawyer. Ensure that this person understands your wishes and is capable of handling the responsibilities.

 Step 2: Draft the Power of Attorney

Work with a legal professional to draft the Power of Attorney document. Clearly outline the powers you are granting, specifying that it is for the purpose of selling your property. Ensure all details are accurate to avoid any legal issues later.

 Step 3: Notarize the Document

For NRIs, the PoA document must be notarized. This can typically be done at an Indian embassy or consulate in your country of residence. The notarization process verifies the authenticity of the document and your identity.

 Step 4: Adjudication in India

Once the PoA is notarized, it needs to be adjudicated in India. This involves presenting the document to the relevant authorities in the Indian state where the property is located. This step ensures the document is legally recognized in India.

 Step 5: Engage a Real Estate Agent or Lawyer

Hiring a real estate agent or lawyer in India can help facilitate the sale. They can assist with finding buyers, negotiating terms, and ensuring all legal requirements are met.

 Step 6: Market the Property

Your agent can now market the property. This includes listing it on real estate websites, advertising, and showing the property to potential buyers.

 Step 7: Negotiate and Finalize the Deal

Your agent will negotiate with prospective buyers to get the best possible price. Once a buyer is found, your agent will handle all the paperwork and legal formalities required to finalize the sale.

 Step 8: Transfer of Funds

Once the sale is completed, the funds can be transferred to your bank account. Ensure that all financial transactions comply with the Foreign Exchange Management Act (FEMA) and other relevant regulations.

 Key Considerations and Tips

1. Legal Assistance: Always seek legal assistance when drafting and executing a Power of Attorney. This helps in ensuring that all legal requirements are met and reduces the risk of disputes.

2. Clarity in Documentation: Make sure that the PoA document is clear and specific. Ambiguities can lead to misunderstandings and legal complications.

3. Regular Communication: Stay in regular communication with your agent to monitor the progress of the sale and address any issues promptly.

4. Tax Implications: Understand the tax implications of selling property in India as an NRI. You may be subject to capital gains tax, and it’s essential to comply with all tax regulations.

5. Repatriation of Funds: Be aware of the rules regarding repatriation of sale proceeds. You can repatriate up to USD 1 million per financial year, provided you follow the RBI guidelines.

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 Common Questions you may have

 Can I use a Power of Attorney to buy property in India?

Yes, a Power of Attorney can be used to buy property in India. The process is similar to selling, where you appoint an agent to act on your behalf.

 Is the Power of Attorney valid indefinitely?

No, a Power of Attorney is not valid indefinitely. It is generally valid until the principal revokes it or it gets cancelled due to the principal’s death or incapacitation. Additionally, you can specify a validity period in the document.

 What happens if the agent misuses the Power of Attorney?

If the agent misuses the Power of Attorney, the principal can revoke the PoA and take legal action against the agent. It’s crucial to choose a trustworthy person as your agent.

 Do I need to register the Power of Attorney in India?

Yes, for property transactions, the Power of Attorney must be registered with the local sub-registrar's office in India.

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 Conclusion

Selling property in India as an NRI can be a seamless process with the proper use of a Power of Attorney. By appointing a reliable agent and following the necessary legal steps, you can ensure a smooth and efficient property transaction. Always consult legal professionals to guide you through the process and safeguard your interests.

By understanding and leveraging the Power of Attorney, NRIs can manage their property transactions in India effectively, even from afar. This guide aims to simplify the complexities and help you navigate the process with confidence.

Consulting a Lawyer is always useful for quick and authentic information about RERA Act.

Super Built-Up Area

Before we understand super built-up area, it is important to understand the meaning of built-up area. Built up area includes all areas of your flat (carpet area + balconies, walls etc.). Super built-up area includes built-up area plus your proportional share in the common areas of your building. For instance, if your building has common pathways, parks etc., these would also be included in the term super built-up area, in proportion to your share in them.

Typical common areas included in a super built-up area are: 

• Staircases

• Lobbies

• Lifts

• Club house

• Security rooms

However, the super built-up area, does not include the following: 

• Underground water facilities. 

• Open swimming pools and skywalks

• Open sports amenities. 

Occupancy Certificate

An occupancy certificate is the evidence that the building is inhabitable and that its construction is in compliance with all rules and regulations. It is issued by a local government, agency or planning authority. It is the developer of the building who needs to obtain the occupancy certificate. Occupancy certificate needs to be shown at the time of obtaining public utility connections. Typically, a developer applies for an occupancy certificate within 30 days of the completion of the project. The developer or the person applying for an occupation certificate should furnish the following documents: 

• Project commencement certificate

• Project completion certificate

• NOCs for fire and pollution

• Sanctioned plan of the building. 

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RERA Registration Number

RERA mandates that all real estate developers register under it. RERA registration acts as a stamp of credibility. Once the process of RERA registration is complete, the real-estate developers obtain a RERA registration number. This RERA registration number acts as a proof of authenticity that the project is credible and that buyers can put their money in it. 

Floor Space Index

Floor space index, also known as Floor area ratio, is the ratio of the built up area to the total land of the project. Floor space index is important as it indicates the total area that can be built upon a plot of land. The development control regulation department and the building code of India regulate the floor space index. The type of building, which city it is located in and the amenities available in the building are factors taken into account while determining the floor space index. Floor space index helps in maintaining the ratio of open space to closed spaces and helps in sustainable development of cities. 

Leasehold Property

A property which has been taken on lease is a leasehold property. Builders and real-estate developers, build their projects either on leasehold properties or freehold properties. Leasehold properties are typically on lease from 30 to 99 years. Once, the leasehold period gets over, they convert to freehold properties. Buyers prefer freehold properties to leasehold properties, as certain restrictions operate on leased land. 

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Freehold Property

A freehold property absolutely belongs to the owner. The developer may purchase the same form the owner for the purposes of development of the project. Unlike leasehold properties, no statutory approval is required to transfer the ownership of a freehold property. It is easier to get loans for freehold properties and no restrictions are imposed on the same. 

Pre-Launch Properties

You would have heard about pre-launch properties or pre-launch offers. A pre-launch property is a property whose launch has been announced, even before the approval process is underway. Typically, builders solicit offers from customers, who could be old customers or through real-estate agents a discounted prices for pre-launch offers. Such offers and properties attract potential buyers’ attention as they are available at prices lower than the market value. 

These are a few terms or legal jargons which are widely used in the real-estate sector. RERA Act, also uses these terms in its provisions. It is hence, important that you as a customer should know what these jargons mean and make an informed decision, while buying any property. 

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You inherit property when your parents or grandparents, or any other relative pass away. This inheritance can either be through a will or intestate succession. Intestate succession means that the property will pass on to your legal heirs through rules created by the laws of succession. Different personal laws govern the rights of heirs to an estate. Many people do not know how inheritance rights function and this lack of knowledge leads to issues during partition or succession. Through this article, we will tell you how heirs' rights to property function in India. 

The Right to Inherit Property

Before we discuss the heir property rights, it is essential to understand the two types of property. Typically, a property is of two types: 

• Ancestral property: Such property is passed on through generations. An heir typically has a right over an ancestral property by his birth. 

• Self-acquired property: A self-acquired property is a property that the owner has earned through his efforts. 

A property becomes your own only when you can legitimately claim to exercise some rights over it. For instance, your neighbor's house is not your property because you don't have any rights over it. However, your own house is your property because you can legitimately exercise some rights over it. Thus, acquiring a property means becoming capable of exercising some rights over it. 

Property can be acquired in many ways. You can enter into an agreement with another person, such as a sale deed for the sale of their land to you, and thus acquire that property. There are many other such modes. Inheritance is one of them. Thus, when you inherit a property, the consequence is that you will be able to exercise some rights over it. 

As mentioned above, the Law of Inheritance will decide who the new owners of your estate will be. Certain persons will inherit defined shares of your estate. These persons are known as your' heirs'. Each of your heirs will have a right in your estate. 

Illustration — According to the applicable Law of Inheritance, your son S, daughter D, and mother M are your successors. Each of them is entitled to inherit 1/3 of your estate. Thus, S, D, and M will each have the right to inherit 1/3 of your estate. These are the inheritance rights of S, D, and M about your estate. Once inheritance occurs, S, D, and M will have acquired 1/3 of your estate each. 

The Law of Inheritance in India

There is no uniform Law of Inheritance in India. Instead, the Law of Inheritance varies based on one's religion. A small part of the Law of Inheritance is the same for all religions. However, the vast majority of it varies by religion. Thus, Hindus, Muslims, Christians, Parsis, etc., are each governed by their largely by their own, unique Laws of Inheritance. 

The religion of the deceased governs, which Law of Inheritance will govern the succession of their estate. Thus, when a Hindu dies, then the succession of their estate will be governed by the Hindu Law of Inheritance; when a Muslim dies, then the succession of their estate will be governed by the Muslim Law of Inheritance, and so on. 

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Inheritance Rights in Parents' Property

As a child, you generally have the right to inherit some portion of your parents' property. However, your parents are perfectly capable of varying your share, or depriving you of your full share (thus completely disinheriting you), by executing a Will to this effect. 

In India, the traditional mindset has excluded women's rights in parents' property. Before 2005, a daughter was only a member of the family and not a coparcener. A coparcener has the right to inherit the property; a member does not. A member can only ask for maintenance. After 2005, now daughters have also become coparceners and have an equal right to inherit parents' property.

Classically, in some religions, a daughter's marriage deprived them of their right to inherit their parents' property. However, this is no longer the case. Today, marriage alone will not affect your inheritance rights. A married daughter has the same rights to inherit her parents' property as an unmarried daughter does. 

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Women's Inheritance Rights in India

Women, before 2005, were looked upon as members and not coparceners. Hence, they did not have a right to inherit the property. Let us understand women's inheritance rights in India vis-à-vis the different positions women hold in the family: 

Wife: A wife is entitled to her husband's property. A woman's property rights do not vary after her husband's death. 

Daughter: After 2005, if you are a daughter, you are also a coparcener in your father's property and hence have a right to inherit property. Today, your gender as a woman alone is of little consequence. As a woman, you have more or less the same inheritance rights as a man of your generation. Thus, a woman has essentially the same inheritance rights in her parents' property as a son; a granddaughter has essentially the same inheritance rights in her grandparents' property as a grandson, and so on. A woman can acquire, and hold, property at par with a man. Marriage generally does not deprive a woman of her inheritance rights. 

While rules of Intestate Succession govern the distribution of a property where no will is left behind, it is preferable that you take legal help and prepare and register a Will. Inheritance through a Will is easier and smoother.

1. Testamentary Succession: You may choose to execute a Will. The Will, by definition, will specify who will inherit what shares of your estate. In such a case, succession will take place according to the instructions contained in your Will. When succession takes place in this manner, it is known as testamentary succession. 

2. Intestate Succession: You may also choose not to execute a Will. However, someone must still inherit your property. The Law of Inheritance has a built-in contingency for such cases. The law specifies certain persons as your legal heirs, who are entitled to defined shares of your estate after your death. When succession takes place in this manner, it is known as intestate succession. 

Succession will be either testamentary or intestate. It cannot be both at the same time. If you leave behind a Will, the succession of your estate will be testamentary. If you don’t, it will be intestate. 

Legal Inheritance of Property

Testamentary Succession

Testamentary succession will occur if you leave behind a Will. 

Every mentally sound adult is capable of executing a Will. A Will is a legal document that contains instructions to govern the inheritance of your estate. It will specify (i) who will be entitled to your estate and (ii) the shares of your estate each of them will be entitled to. The persons who are entitled to inherit under your Will are known as your legatees. Any person can be a legatee, even a person who is not your relative. 

The Indian Succession Act, 1925 is the uniform Law of Testamentary Succession which governs everyone except Muslims. Muslims are governed by their own Muslim Law of Testamentary Succession. 

You have practically unlimited discretion to decide, your legatees and the shares of your estate each will inherit. Generally, all of your property can be bequeathed by a Will. However, if you are a Muslim, then you cannot bequeath by a Will any more than 1/3 of your estate, unless your legal heirs consent to exceeding this cap. There is no such limitation for anyone else. 

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The manner of executing a Will differs, based on whether you are governed by the Indian Succession Act, 1925 or the Muslim Law of Testamentary Succession: 

1. Unless you are a Muslim, you must follow the procedure in the Indian Succession Act to execute a Will. The Will must be written, and you must sign or affix your thumb impression on it. It must be attested by at least two witnesses who have seen you sign it. A Will can be executed on plain paper. It is not necessary to execute it on stamp paper. It is also not necessary to be registered. 

2. If you are a Muslim, there is an even simpler procedure to execute a Will. Your Will need not be signed or written. It can even be oral. There is no need for attesting witnesses. The only requirement is that your intention should be clear. However, oral wills are notoriously difficult to prove. Hence, it is always prudent to execute your Will in writing, even though it is unnecessary. 

After your death, someone has to take the responsibility of carrying out the instructions in your Will. This process is known as the execution of the Will, and the person who does it is known as the executor. They will ensure that the specified shares of your estate are bequeathed to the respective legatees. There can be multiple executors. You have the option to specify the sole executor, or co-executors, of your Will in the Will itself. Remember to take their consent. Do give some thought to your choice of an executor, as this person will be the one responsible for executing your Will. If you don’t appoint an executor, or the executors refuse to act as executors after your death, the competent court can appoint some of your legal heirs as the executor[s]. 

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Intestate Succession

Intestate succession will occur if you don’t leave behind a Will. The applicable Law of Intestate Succession will govern the succession of your estate. 

There is no uniform Law of Intestate Succession in India. Rather, it varies based on one’s religion. Thus, Hindus, Muslims, Christians, Parsis, etc., are all governed by their own separate Laws of Intestate Succession. For instance, the law for Hindus is contained in the Hindu Succession Act, 1956, the law for Christians is contained in the Indian Succession Act, 1925, etc. 

Your religion will determine which Law of Intestate Succession will govern the succession of your estate. Thus, if you are a Hindu, then the Hindu Succession Act, 1956 will govern; if you are a Christian, then the Indian Succession Act, 1925 will govern, etc. 

Regardless of which Law of Intestate Succession applies, at the highest level, all of them operate similarly: each of your legal heirs will inherit specific shares of your estate. The legal heirs, and the shares they are each entitled to, will vary based on the number of legal heirs alive and their relationship with each other. For instance, consider a married Hindu male. If you are a Hindu married male, ordinarily, your wife, sons, daughters, and mother are your legal heirs. They will each take an equal share of your estate. Thus, if you are survived by a wife, mother, one son, and one daughter, each of them will take a ¼ of your estate. However, if your daughter is dead, but she is survived by her only daughter (your grand-daughter), the grand-daughter will become an additional legal heir entitled to her mother’s share. Thus, she will inherit ¼ of your estate.  

Hence, the inheritance of property in India is a complex process, and in the absence of a will, is governed by property succession laws.