Deemed Conveyance: How a Society Obtains Title When the Promoter Does Not Convey

A great many housing societies in Maharashtra occupy their buildings, collect maintenance, hold general body meetings and function in every visible way as the owners of their property — while holding no title to the land beneath them. The conveyance was never executed. Deemed conveyance is the statutory answer to that situation.

What conveyance means, and why the gap exists

When flats are sold in a building, the purchasers acquire their individual units. The land and the structure as a whole are supposed to be conveyed to the co-operative society formed by those purchasers, so that the society holds title to what its members collectively own. That transfer is the conveyance.

In a large number of projects it simply never happened. Sometimes the promoter retained the land deliberately, because unused development potential had value. Sometimes the promoter dissolved, died or disappeared. Sometimes everyone assumed it had been done. The result is the same: the society exists, the members have their flats, and the land stands in someone else's name.

Why it matters more than it appears to

Societies often live with the gap for years without obvious harm, which is why it gets deferred. The consequences tend to arrive all at once, and usually at the moment the society most needs to act:

• Redevelopment becomes materially harder to structure and finance when the society cannot demonstrate title to the land it proposes to redevelop.
• The society cannot deal with the property — mortgage it, or use unused development potential — in the way an owner could.
• Claims against the land by or through the original owner are harder to resist when the record still shows that owner.
• Individual members can find their own transactions questioned when a purchaser or lender examines the society's title position.

The practical argument for acting is not that something bad is imminent. It is that the evidence needed to prove entitlement — agreements, plans, occupation records, the chain of individual flat documents — gets harder to assemble with every passing year, as members sell, papers are lost and the promoter's trail goes colder.

The statutory route

The Maharashtra Ownership Flats Act, 1963 — MOFA — places an obligation on the promoter to convey title to the organisation of flat purchasers. Where the promoter does not do so, the society may apply to the Competent Authority.

It is worth being precise about what the Competent Authority actually issues, because this is widely misdescribed. Under Section 11(4), on being satisfied, the Competent Authority issues a certificate to the Sub-Registrar or other registering officer certifying that it is a fit case for enforcing unilateral execution of the conveyance. The certificate is a direction to the registration machinery — it is not itself the conveyance, and it does not by itself mean that title has passed.

Section 11(5) then sets out what follows: the applicant submits that certificate together with a unilateral instrument of conveyance to the registering officer, who follows the statutory process and may register the instrument as a deemed conveyance. Title moves on that registration, not on the certificate.

The essential feature of the mechanism is that it does not require the promoter's cooperation. A promoter who refuses to sign, or who cannot be found, does not have a veto. What the society must do instead is prove its entitlement to the Competent Authority on the documents.

Deemed conveyance is a distinct statutory remedy with its own conditions and its own evidentiary burden. It is not a shortcut around a title defect, and it does not manufacture a better title than the members were entitled to receive. Where the underlying title itself is defective, that defect needs to be understood before an application is made.

What an application turns on

Applications succeed or fail on documentation. The society is asking an authority to certify a transfer that the person who should have executed it did not execute, so the file has to establish the chain independently. In practice that means the society's own registration record, the individual agreements under which members acquired their flats and the registration particulars of those agreements, the approved plans and the approvals under which the building was constructed, the property and revenue records showing the present position, and material establishing that the promoter was called upon to convey and did not.

The proceeding is adversarial in form. Notice goes to the promoter and to others with a recorded interest, and they may appear and contest. A society that has assembled a complete and internally consistent file is in a very different position from one that is reconstructing its papers during the hearing.

There is a statutory period, and it is worth knowing its limits. Section 11(4) requires the Competent Authority, on receiving the application, to act within a reasonable time and in any case not later than six months. That period governs the authority stage — the stage that ends with the certificate.

The six months is not an end-to-end guarantee. It applies to the Competent Authority stage up to the Section 11(4) certificate. What follows — preparing the unilateral instrument, stamping and adjudication where applicable, the registering officer's process, registration itself, and then mutation and updating of the property and revenue records — sits outside that period and takes its own time. How long depends on the completeness of the file, whether the application is contested, and the case load at each office.

The order is not the end

This is the step societies most often misunderstand. A certificate or order from the Competent Authority is not, by itself, the completed transfer. It is the instrument that enables the transfer to be effected.

The deed has still to be stamped and presented for registration at the Sub-Registrar's office, and the property and revenue records have then to be updated to show the society. A society that obtains an order and stops there has spent the effort and not secured the benefit. When the society later comes to redevelop, it is the registered instrument and the updated records that will be examined — not the order sitting in the file.

If your society is considering it

The useful first step is not an application. It is an honest assessment of what the society actually holds: whether the society is properly registered and its record is in order, whether the individual flat agreements are available and registered, what the property and revenue records currently show, and what is known about the promoter's present status. That assessment usually determines whether the matter is straightforward or whether there is a title question to resolve first.

Tarte Consultants has completed over 250 deemed conveyance matters. Our deemed conveyance service covers the eligibility assessment, the application and the registration that follows the order. There is no consultation fee for an initial assessment — contact us. You may also find our guide to redevelopment documentation useful if redevelopment is the reason conveyance has become urgent.