REAL ESTATE PROJECT

A Project Submitted
By
ROEL MATHEW WILLS
ENROLLMENT NO.:- A3221514018
BBA Llb. (H) SEMESTER 7TH

Amity Law School

Block I-2, Sector-125, Amity Campus
Amity University, Noida
INTRODUCTION:
What is 'Real Estate?'
Real estate is property comprised of land and the buildings on it, as well as the natural resources
of the land, including uncultivated flora and fauna, farmed crops and livestock, water and
mineral deposits. Although media often refers to the "real estate market," from the perspective of
residential living, real estate can be grouped into three broad categories based on its use:
residential, commercial and industrial. Examples of residential real estate include undeveloped
land, houses, condominiums and town houses; examples of commercial real estate are office
buildings, warehouses and retail store buildings; and examples of industrial real estate include
factories, mines and farms.
Real estate is the property, land, buildings, air rights above the land and underground rights
below the land. The term real estate means real, or physical, property. Real comes from the
Latin root res, or things. Others say its from the Latin word rex, meaning royal, since kings
used to own all land in their kingdoms.
There are four types of real estate:

Residential real estate includes both new construction and resale homes. The most
common category is single-family homes. There are also condominiums, co-ops,
townhouses, duplexes, triple-deckers, quadplexes, high-value homes and vacation homes.
Commercial real estate includes shopping centers and strip malls, medical and
educational buildings, hotels and offices. Apartment buildings are often considered
commercial, even though they are used for residences. That's because they are owned to
produce income.
Industrial real estate includes manufacturing buildings and property, as well as
warehouses. The buildings can be used for research, production, storage and distribution
of goods. Some buildings that distribute goods are considered commercial real estate. The
classification is important because the zoning, construction and sales are handled
differently.
Land includes vacant land, working farms and ranches. The subcategories within vacant
land include undeveloped, early development or reuse, subdivision and site assembly.
Here's more at Land Broker Transactions.
Mode of transfer of real estate property transactions related to transfer of properties in India are
governed by various state and central laws such as transfer of movable properties is a subject
matter of Sale of goods Act and transfer of immovable property is a subject matter of Transfer of
property Act. Real estate properties are mainly immovable properties so transfer of real estate
properties is a subject matter of Transfer of property Act. The Transfer of Property Act, 1882
happened to be one of the early legislations of the nineteenth century. The Act is having an
important place in the statute book with the main objective to render the system of transfer of
immovable property a system of public transfer. Registration is therefore generally insisted upon
for completing transfer, except in cases of transactions of small value. Property is a very wide
term and would include anything which carries some value and over which the right of
ownership may be exercised. The word property in its most comprehensive sense includes all
legal rights of a person except his personal rights, which constitute his status or personal
condition.' Under English law, property is generally classified into real property and personal
property. Real property comprises of all properties admitted to specific recovery and is freehold
interests in land. Property in respect of which only a personal action lay was classified as
personal property, i.e., which comprised of all forms of property other than real property. The
distinction in English law between real and personal property is paralleled in Indian law by the
distinction between immovable and movable property. Definition of immovable Property It is a
surprising fact that the Transfer of Property Act does not contain a comprehensive definition of
immovable property. Section 3, Para 2 merely says: "Immovable property does not include
standing timber, growing crops or grass". This is a negative definition and is not satisfactory. We
can find a workable definition of immovable property in the General Clauses Act, 1897, which
reads as follows; "Immovable property include land, benefits to arise out of land and things
attached to the earth".
So basically Immovable property means Land, benefits to arise out of land and things attached
to the earth" but does not include standing timber, growing crops or grass.
There are different modes by virtue of which immovable property can be transferred.

Sale,
mortgage,
lease,
gift,
exchange etc

Different types of transfer of property

Transfer of Property Act, 1882 (TP Act) is one of the primary laws on transfer of property
applicable to the whole of India. However, TP Act does not govern the transfer of property by
operation of law, such as the sale by the order of a court, auction or forfeiture as well as
transmission of the title of a person dying intestate, in which case succession laws as per the
religion of the deceased will be applicable.
According to Section 6 of the Transfer of Property Act, the property of any kind, except the nine
kinds of property mentioned therein, may be transferred. The person insisting non-transferability
must prove the existence of some law or custom which restricts the right of transfer. Unless there
is some legal restriction preventing the transfer, the owner of the property may transfer it.
Any person, who is competent to contract, is competent to transfer property, which can be
transferred in whole or in part. He should be entitled to the transferable property, or authorised to
dispose of transferable property which is not his own. The right may be either absolute or
conditional, and the property may be movable or immovable, present or future.
A transfer of property passes forthwith to the transferee all the interest which the transferor is
then capable of passing in the property unless a different intention is expressed or implied.
Here we will discuss the different types of transfers mentioned in the TP Act. In addition, we
will also look into License as provided under Sec. 52 of Indian Easement Act, 1882, which is
many times confused with lease and erroneously used.
 1. SALE
According to section 54 of the TP Act, Sale is a transfer of ownership in exchange for a price
paid or promised or part-paid and part-promised. In a sale, there is an absolute transfer of all
rights in the property sold.
ESSENTIAL ELEMENTS OF SALE
The essential elements of a sale are as follows:

the parties ;
the subject-matter ;
The price or consideration.
MODE OF TRANSFER BY SALE
There are only two modes of transfer by sale, that is:

By the registered instrument; and

Delivery of possession.
A transfer by sale of tangible immovable property of the value of one hundred rupees and
upwards can be made only by a registered instrument.

2. MORTGAGE
Section 58 of TP Act defines a mortgage as the transfer of an interest in a specific immovable
property for the purpose of securing the payment of money advanced or to be advanced by way
of loan, an existing or future debt or the performance of an engagement which may give rise to a
pecuniary liability. Thus, a mortgage is a transfer of an interest in specific immovable property
as security for the repayment of a debt.
In order to create a mortgage, it is necessary to specify the immovable property. The description
must at least be sufficient to identify the property according to the requirements of the
Registration Act.
The transferor is called mortgagor, the transferee a mortgagee; the principal money and interest
of which payment is secured for the time being are called the mortgage-money, and the
instrument (if any) by which the transfer is effected is called a mortgage-deed.

3. EXCHANGE
Section 118 of the TP Act provides that when two persons mutually transfer the ownership of
one thing for the ownership of another, neither thing nor both things being money only, the
transaction is called an Exchange. The definition of the word exchange is not limited to
immovable property. Exchange is not only exchange of lands but also barter of goods. A
transaction of exchange presupposes existence of different properties owned by different
persons, that as a result of the transaction of exchange both the properties continue to be owned
by two different parties but the ownership of one property is transferred to the owner of the other
and vice versa.

4. GIFT
Section 122 of the TP Act defines Gift as the transfer of certain existing movable or immovable
property made voluntarily and without consideration by one person, called the donor, to another,
called the donee, and accepted by or on behalf of the donee. Such acceptance must be made
during the lifetime of the donor and while he is still capable of giving. If the donee dies before
acceptance, the gift is void. A gift of immovable property to a minor is complete when it is
accepted by a person on behalf of the minor and appends his thumb impression on the gift-deed
in token of acceptance.
ESSENTIAL ELEMENTS OF GIFT

The following are the essential elements of a gift to be valid:

No consideration nothing to be received in lieu of a gift.
The Donor-person making a gift.
The Donee-person to whom a gift is made.
The subject-matter of a gift.
The transfer of the subject-matter of gift by the donor to the donee.
The acceptance of the gift by the donee.

5. LEASE
Section 105 of the TP Act lays down that a lease of immovable property is a transfer of a right to
enjoy such property, made for a certain time, express or implied, or in perpetuity, in
consideration of a price paid or promised, or of money, a share of crops, service or any other
thing of value, to be rendered periodically or on specified occasions to the transferor by the
transferee, who accepts the transfer on such terms. The transferor is called the lessor, the
transferee, is called the lessee, the price is called the premium, and the money, share, service or
other thing to be so rendered is called the rent.
ESSENTIAL ELEMENTS OF LEASE
The essential elements of a lease are the following:

The parties, i.e., the lessor and lessee.

The subject-matter or immovable property.
The demise or partial transfer.
The duration or term of the lease.
The consideration for the lease, or rent.

6. LICENCE
Section 52 of the Indian Easements Act, 1882, defines the terms licence as follows:
Where one person grants to another, or to a definite number of other persons, a right to do, or
continue to do, in or upon the immovable property of the grantor, something which would, in the
absence of such right, be unlawful, and such right does not amount to an easement or as interest
in the property, the right is called a licence.
Thus, a licence is a permission to stay on an immovable property without which the stay would
be a trespass.

DISTINCTION BETWEEN LEASE AND LICENCE

The Supreme Court has brought out distinction between a lease and a licence in various cases
which may be summarised as follows:
The lease is an inheritable right which is available as a right against any person in the
world (right in rem): Licence is not an inheritable right. It is personal and exclusive to the
licensee and on his death, it automatically stands revoked.
The lease creates interest in the leased property in favour of the lessee whereas in licence
no such interest is created in the licensee.
Lease interest can be assigned but the licence is non-assignable.
Denial of lessors title results in forfeiture of the lease whereas it is not so in a licence.
The remedy for breaches in the case of a lease is that the lease can be enforced but in the
case of a licence the only suit for damage can be filed.
Termination of the lease requires notice to be served on the lessee but the termination of a
licence can be done without notice.
Lease deed requires registration under the Registration Act, 1908 and Transfer of
Property Act, 1882 if the value of the leased property exceeds Rs. 100/- or the lease
duration exceeds eleven months but a licence deed does not require registration.
A lessee can sue stranger or third party in his own name but a licensee cannot do so.
Thus, where in terms of an agreement with respect to land and building for commercial purpose,
exclusive possession is not given and there is a covenant for delivery of vacant possession after
expiry of the term of the agreement, the agreement would be a licence and not a lease. However,
exclusive possession itself is not decisive in favour of a lease and against a mere licence and the
question whether a transaction is a lease or a licence turns on the operative intention of the
parties and there is no single, simple litmus test to distinguish one from the other.