Revised Procedure for transferring promoter’s rights to a third party in MAHARERA

Revised Procedure for transferring promoter’s rights to a third party in MAHARERA
  • General
  • Wednesday 5th June 2019
  • Author: Shreya Uppal

Highlights

  • As per Section 15 of the Real Estate (Regulation and Development) Act, 2016 the promoter shall not transfer or assign his majority rights and liabilities in respect of a real estate project to a third party without obtaining prior written consent from two-third allottees, except the promoter, and without the prior written approval of the authority. Therefore Circular No. 11/2017 dated 08.11.2017 has been issued regarding the procedure for the same matter.

As per Section 15 of the Real Estate (Regulation and Development) Act, 2016 the promoter shall not transfer or assign his majority rights and liabilities in respect of a real estate project to a third party without obtaining prior written consent from two-third allottees, except the promoter, and without the prior written approval of the authority. Therefore Circular No. 11/2017 dated 08.11.2017 has been issued regarding the procedure for the same matter. However, considering various types of litigations, it has become necessary to revise the procedure stated in Circular No. 11/2017. Therefore in supersession of the previous circular, a new Circular No. 24/2019 dated 04/06/2019 has been issued to describe the revised procedure which shall be followed with immediate effect.
The revised procedure has been described below for the cases where a transfer is initiated by the promoter:
1. The promoter shall have to write to the Secretary, MAHARERA, on
secy@maharera.mahaonline.gov.inwith the given prescribed format.
2. On receipt of such application, Secretary shall initiate action through the legal wing who would take necessary steps to obtain approval of MAHARERA, which may include scheduling a hearing.
3. MAHARERA shall thereafter pass an order within one month of filing of such application, of either granting approval to such application for transfer (with or without such conditions) or reject such application for transfer.
4. After receipt of the approval for the transfer from MAHARERA and thereafter within seven days of completion of the transfer, the new promoter shall then apply for necessary corrections in the existing registration details. He shall also upload required supporting documents in its name like land title, building plan approval, etc., upon obtaining the same from time to time.
5. Amalgamation or merger of the Companies, in which amalgamating company has one or more of the project registered under RERA, and which is voluntarily initiated by the promoter, after 30th April 2017, shall be regarded as transfer initiated by the Promoter and the Promoter shall have to follow the procedure above for obtaining the approval of the allottees.
6. However, if the amalgamation or merger or demerger of the companies, which is not regarded as transfer under section 47 of the Income Tax Act'1967 or where 75% of the shareholders remain the same in the resultant company, the same shall not require the aforesaid approvals of Allottees under section 15 of the RERA Act, 2016.

The revised procedure has been described below for the cases where a transfer is initiated by a third party like Financial Institutions/Creditors etc. by operation of law or by way of enforcing the security:
1. Where Secured Loan and/or the charge on the project is disclosed in the registration details of the project on the website of MAHARERA, then in such cases the promoter shall write to the Secretary, MAHARERA, on
secv@n-raharera.mahaonline.gov.in with the prescribed format, within seven days of being aware of the impending or potential transfer arising out of enforcement of security or mortgage.
2. The Promoter shall also simultaneously inform each and every allottee of the project of the impending or potential transfer within seven days of the transfer being effected by the Financial institution or creditors, such Financial institution or creditor shall intimate to each of the allottees and Secretary MAHARERA on secv@maharera.mahaonline.gov.in of enforcement of the security which has resulted in the transfer of the ownership of the promoter organization or transfer of the project.
3. The Financial Institution or creditors (acting as a new promoter) or new promoter (appointed by such financial institution or creditors) shall then apply for necessary corrections in the existing registration details. New Promoter shall also upload required supporting documents in its name like land title, building plan approval, etc., upon obtaining the same from time to time.
4. While making such application for correction, the new promoter shall upload on the website of MAHARERA, an undertaking stating that they shall comply with all the obligations under agreement of sale executed by the promoter with respect to the allottees of the project and has assumed all the obligations of the promoter under the Act.

 

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