What is real estate law? What do real estate lawyers do and how? This was one of those questions which remained unanswered for a long time for me, until I was sought for advise in a real estate matter myself.
A couple of years ago, a friend’s father contacted me out of the blue. He is a retired marine engineer. His elder daughter had recently been married. So, as a gift to his daughter and son-in-law, he had bought them a flat in Bangalore. He had paid about INR 2.5 lakhs as down payment and signed some papers. He was told that the construction work will start in about six months. He then went back to his home in Kolkata. About near 6 months later he realised that the construction work has not started. He contacted the parties and learnt that there will be a delay of a couple of months due to some unforeseen circumstances.
But even after few months, the work had not started. That is when he called for clarifications. Upon seeing such a lackadaisical attitude, things got heated and he threatened them with a lawsuit. Then the contractors simply said that he has waived off the right to sue based on one of the papers he had signed. This is when he got in touch with me.
I asked him to share the copies of all the documents. In one of the documents it turns out that this friend’s father had waived off his right to sue among other rights. Now I have next to nothing in terms of experience in real estate law. So I referred him to a friend after initial advice.
While talking to my friend I realised the extent of the real estate laws, rules and regulations involved in these matters. I also realised how much these affect us in our day-to-day lives. It intrigued me to know what do the real estate lawyers do and how? Are there any real estate law courses? So in order to get some insights, I spoke to a couple of real estate lawyers to understand what they do and how.
Here is what I learnt.
What do real estate lawyers do?
Real estate lawyers do everything from title search of a property to dispute resolution. They have to conduct the due diligence for the property to know if the title is clear for development or sale. Then they have to make title search reports or title search certificates as per their client’s requirements. They also check for pending mortgages and litigation on the property, to find a reasonable and amicable solution for their clients. They advise their clients on various property related matters. They draft MOUs, lease agreements, leave and license agreements, etc. They also handle land or property related disputes.
Their clients range from individuals investing in a flat to developers or promoters. So, if you’re a developer trying to get the land to develop a property, you have to get in touch with a real estate lawyer.
What laws and regulations do they need to know?
While the range of laws applicable to real estate laws is extensive laws, like The Real Estate (Regulation and Development) Act, Transfer of Property Act, Contracts Act, state laws and regulations like Maharashtra Regional and Town Planning Act, Development Control Rules, etc. are what real estate lawyers deal with on a daily basis.
The Real Estate (Regulation and Development) Act
Recently, with the The Real Estate (Regulation and Development) Act, 2016 [RERDA], Real Estate Regulatory Authority (RERA) has come into place. This law was introduced to protect home-buyers as well as help boost investments in the real estate industry. The Act establishes Real Estate Regulatory Authority (RERA) in each state for regulation of the real estate sector and also acts as an adjudicating body for speedy dispute redressal. Under RERDA, all builders and developers have a duty to register their new and ongoing projects with the Regulatory Authority in case they are planning to sell the property. Under the law, RERA has to dispose off a complaint within 60 days of filing. With RERA in place in a state, one cannot file lawsuits in civil courts or high courts.
Transfer of Property Act
The Transfer of Property Act regulates the transfer of property in India and it classifies property into immovable and movable properties. The transfer of property may be to an individual, company or association or body of individuals. A real estate lawyer needs to be thorough in their knowledge of this act as it governs and regulates the transfer of properties between parties.
The knowledge of contract law is essential for all lawyers, more importantly the practical experience in the field. Even real estate lawyers have to know how to draft contracts and agreements. They regularly deal with clients who need them to draft the necessary agreements like MoU, lease agreement, leave and license agreement, sale agreement, broker agreement, etc. Therefore, they need to be adept at the subject matter.
Consumer Protection Act
Prior to RERA, even in states where RERA has not been established post-RERA, usually the lawyers approached the consumer courts whenever handover of a developing property was delayed, or if there was dispute between the seller and buyer of a property. The real estate lawyers need to know the procedural aspects of the law, how to file a consumer complaint, etc.
State Rules and Regulations
The rules and regulations for states differ from one another in terms of procedure, stamp duty, registration, etc. So, for instance in Maharashtra, a real estate lawyer needs to know the Maharashtra Regional and Town Planning Act, Standardized Building Bye-laws, Development Control Rules, etc. along with the other laws. In West Bengal, RERA was met with pushback from the state government’s legislation West Bengal Housing Industry Regulation Act (WBHIRA) which looks like an attempt to dilute RERA. There are two major deviations in the WBHIRA from RERA. It adds “…or any other circumstances as may be prescribed”, under the provision of unforeseen circumstances that prevent a builder from fulfill his contract,” which makes it ambiguous. Also, a garage is described as any parking space sanctioned by the government authority, which differs from the RERA’s definition of garage requiring a roof and walls on three sides. The real estate lawyers need to know and be able to apply the state laws, rules, regulations, bye-laws, etc. related to real estate.
What are the skills required for a real estate lawyers?
So, one of the questions I posed to the real estate lawyers was what kind of skill sets are required for a successful career in real estate law. Another question was what do potential employers look for in candidate while hiring.
In case of the employers, they look for candidates with experience in the real estate laws. This includes the number of deals the candidate may have closed, the nature and quality of said deals, the number of transactions closed, transaction based advise, dispute resolution, etc.
Knowledge of real estate laws
A real estate lawyer has to possess a thorough knowledge of the various laws, rules, regulation, bye-laws involved in real estate. These lawyers need to be able to provide end to end service a potential client. A client may come to them for a simple title search certificate or a leave and license agreement. Or a developer may come for understanding his contractual obligations to the client or whether the delay can be justified as unforeseen circumstance.
The thorough knowledge of relevant laws like RERDA, Transfer of Property Act, state rules and regulations like Maharashtra Regional and Town Planning Act, Standardized Building Bye-laws, Development Control Rules, West Bengal Housing Industry Regulation Act (WBHIRA), etc. is essential for real estate lawyers.
You can do a real estate law course to learn more about this field of law.
Every lawyer must know how to draft contract, real estate lawyers are no exception. They need to know the laws as well as how to draft the contracts needed by their clients. For instance, a developer or promoter developing his property, enters into an MoU with the potential party before entering the developer’s agreement.
Similarly, a house owner entering into a leave and license agreement with licensees, party leasing the property from another, all need a real estate lawyer to help them draft the necessary agreements and advise them. You can learn more about contract drafting here.
The disputes arising of immovable property has to go to the right court. Prior to RERA, parties had the option of going to civil courts, high courts or consumer forums depending on the nature of the dispute. The real estate lawyers need to know the dispute resolution mechanism, the procedures of each forum, etc.
For instance, if the developer has failed to grant possession of the property for more than a year, a complaint can be filed against the defaulting party, i.e., the developer with RERA. The copies of relevant agreement like MoU, developers agreement, etc. has to be submitted along with the applicable fees. Thereafter within 60 days of filing, the matter is to be disposed off by RERA.
With such laws in place, a real estate lawyer has to find an amicable resolution of the dispute for his client. This requires a thorough knowledge of the laws involved, analysis of agreements involved, procedural knowledge, etc. A real estate lawyer must be able to clearly advise his clients on potential issues cropping up and safeguard them against the same to the best of their abilities.
Real estate law is a lucrative, as well as an interesting field of law as it gives the opportunity for lawyers to develop skills and expertise in a varied range of laws. With the changing legislations and regulations, it keeps the lawyers on their toes and helps them stay on top of their game. The market of real estate is always on the rise for real estate lawyers, as the need for legal advise and disputes with respect to property hardly seems to slow down! Making a career in this field will be highly rewarding.