Title Certificate Issuance by Advocates and Solicitors

Title Certificate Issuance by Advocates and Solicitors

Advocates and solicitors often issue title certificates. This may be a requirement under law as it is for Maharashtra Ownership of Flats Act,1963 (MOFA) and the Real Estate Regulation and Development Act,2016 (RERA) or under contract as it is for the transaction of loans, mortgages, etc.

The title certificate is issued to assist one’s client and to protect members of the public and unwary flat purchasers from transacting with the persons who have no title to the land they are developing or dealing with. In case if the advocate finds the title to be doubtful the advocate has to clearly state this in the title certificate. Also, the title certificate can be revoked by the advocate who has issued it in case the advocate finds the errors or will mislead or defraud. The members of the legal profession can assist their clients lawfully and within the limits of the law.

The court held that the title certificate needs to disclose at least the following:

• Nature of the title of the promoter;
• Nature of the title of the vendor or the promoter or the person through whom the promoter claims;
• Encumbrances and claims on the land;
• Steps required to be taken by the promoter for completing the title as absolutely clear and marketable while conveying the property or causing the same to be conveyed to the organization of flat purchasers on the due date;
• Whether the agreement to sell the flat will bind the owner of the land;
• Whether the title of the promoter or his vendor or the person through whom the vendor claims is doubtful in any manner? If so the nature of doubt entertained.
• Whether the authorization granted in favor of the promoter by the owner or the vendor is irrevocable to bind the owner with the agreements for the sale of the flats? Whether the agreement to purchase the land by the promoter is revocable or irrevocable?
• The court then set out the process that is to be followed before the issuance of the title certificate. This process has become a standard process to be followed by the advocate and the threshold for determining whether the advocate has taken minimum and proper care is taken while discharging duties. A similar process is adopted when the advocate is undertaking due diligence on behalf of the prospective purchaser.

The process to obtain the title certificate is as follows

1. Peruse the title deeds;
2. Have searches taken in the office of the Sub-registrar (Also of the Registrar of Companies in the Vendor is a Limited Company);
3. Issuance of Public notices at least in two newspapers one vernacular one English inviting the claims of the members of the public against or in respect of the property in question;
4. Ask the purchaser to require his architect to ascertain whether the land is under set back or reservation;
5. Administer requisitions on the title and be satisfied with the answers;
6. Obtain declaration on oath from the relevant person regarding the factual position before the issuance of the title certificate