RERA: A game-changing regulation, marred by patchy implementation

Across the nation, the speed of implementation and extent to which RERA has noticeably impacted real estate varies, but the positivity it brings in is not in doubt.

For an industry that provides a basic need of shelter, regulation has come as a value-add. After years of differences in opinion as regards norms, terms and conditions, the Real Estate (Regulation and Development) Act (RERA), 2016, created a broad set of guidelines which brought in transparency in real estate transactions as also defined responsibilities of stakeholders in general and real estate developers in particular.

Across the nation, the speed of implementation and extent to which RERA has noticeably impacted real estate varies, but the positivity it brings in is not in doubt. There is need for an equal implementation across the nation with minor tweaks and changes to make what is accepted as ‘good’ to evolve into ‘better’ – and even, ‘best’.

RERA’s prime focus at the time of introduction as being ensuring protection of consumers’ interests, by bringing in policies that defined the extent as also apportioned responsibility on the part of real estate developers. Leveraging information technology, RERA enabled access to sanctioned plans as also details of different stages of construction. For customers, RERA has brought in an era of transparency through proper disclosure and financial discipline.

At the time it was introduced, this path-breaking regulatory regime provided for tribunals and ombudsman for redressing disputes. RERA also provided real estate developers with protection from defaulting buyers and ensured what we could refer to as an element of fair play.

In Maharashtra, easily the poster-boy of successful implementation of RERA across the nation, there has been an additional layer added to the process in the form of a redressal forum, which seeks to provide an option prior to actually filing a dispute before MahaRERA. This has proven to be a success, with a success rate of over 60 per cent.

This is the biggest take-away from the two-and-a-half years of RERA implantation across the nation. The regulatory aspect can be strengthened with redressal prior to taking up due process under the regulatory regime. In terms of different states having different set of market functioning – leading to different levels of implementation across states – needs to be streamlined into a single, functional regulatory regime that helps the industry grow in an environment of transparency and accountability on the part of stakeholders.

Projects which are in existence prior to implementation of RERA need to be assimilated within the system, or a parallel system which ensures that all real estate projects are brought under regulatory regime. Similarly, in some states where implementation is not at the level it should be, we see new real estate projects slipping through the regulatory net. It is similar to the challenge of GST and real estate: uniform implementation across different states is needed. Going into the future, RERA needs to address the issue of lack of uniformity in laws and capabilities of different state’s RERA authorities.

In some states, we see that for projects under construction, data is being collected – but not being analysed or shared with all stakeholders. Information technology needs to be leveraged, so that data is analysed; numbers are crunched – and the results are acted upon in the form of guidelines or new norms as would increase the positive effect of RERA.

We also have a situation in some states where implementation is not at the levels we would have expected. The problem here is the lack of informative and user-friendly on-line access for home buyers. So, we see in some states that periodic updates on part of the developers and also about some on-going projects are not available online.

Ideally, the huge quantum of data already collected by regulatory authorities across states should be analyzed efficiently and made available in simple to understand formats to stakeholders – especially home buyers – so that they are well informed and updated about the general scenario in their state’s real estate. The aspect of ‘information’ and of it reaching those for whom the regulatory regime sought to make these available is something that needs to be expedited in such states.

To sum up, the journey so far under the RERA regime has been good, but we need to tweak it to ensure it evolves through ‘better’ to ‘best’.


Maha RERA dismisses case in which a buyer sought full refund for not getting possession on time

The regulatory body dismissed a case in which a buyer sought full refund for not getting possession on time.

The Maharashtra Real Estate Regulatory Authority (MahaRERA) has ruled that developers, before making any changes in the approved plan of a project, require the consent of two-thirds of allottees, and once consent is given in writing and the plan is amended, the allottees cannot change their mind.

The order was given last week by MahaRERA member Bhalchandra Kapadnis in the Sunil Wadhwani vs Pashmina Realty Ltd case.

Homebuyer Wadhwani had booked flat no C-701 in Pashmina Lotus located at Chandivali in Powai with the promise of possession on September 30, 2016. Wadhwani sought refund of his investment with interest under Section 18 of RERA contending that the developer failed to deliver by the agreed upon date.

During the hearings, Pashmina Realty Ltd, represented by chartered account Ramesh Prabhu, contended that the plans for 4BHK were considered unviable, and had to be revised to build 2BHK and 3BHK flats in the project. The plans were modified with the written consent of two-thirds of homebuyers, including Wadhwani, as mandated by RERA. Prabhu argued that Wadhwani’s complaint should be dismissed since he gave consent for re-planning under Section 14 (2) of RERA and cannot withdraw his permission now.

Prabhu submitted that Pashmina Lotus project was abandoned and the revised project was registered as Lake Riviera A & B wings with MahaRERA and developer EktaWorld was brought on board as development manager. He said Wadhwani has used the registration number of Pashmina Lotus to file his complaint though he is now an allottee of Lake Riviera and hence his complaint was not maintainable.

Advocates Siddhesh Bhole and Krupashree Sawant, appearing for Wadhwani, pointed out that their client had paid Rs 2.70 crore out of the flat price of Rs 2.76 crore and unless the entire sum is refunded, no subsequent agreement can be executed. Kapadnis observed that the consent under Section 14 (2) of RERA — involving two-thirds allottees — was given to the promoters and Wadhwani had shown readiness to pay Rs 20 lakh for additional carpet area.

“These facts, therefore, establish that on the consent of the complainant, the respondents have acted upon to their disadvantage and hence the complainant is ‘estopped’ under Section 115 of Evidence Act from withdrawing his consent and his status as allottee of the new flats,” Kapadnis said in his 8-page order.

He also said Section 62 of the Contract Act and the principle of novation of contract come into play in this case. Section 62 states that if the parties to a contract agree to substitute it with a new contract, then the original agreement need not be acted upon. It also says that novation requires that the old contract be replaced by a new contract.

Holding that novation of contract should be applied to this case, Kapadnis ruled that the amount paid by Wadhwani for flat no C-701 should be adjusted against the two new flats and directed both parties to register the agreement for sale for the new flats within one month from the order.


MahaRERA says industry units not under purview


The Maharashtra Real Estate Regulatory Authority (MahaRERA) has in a recent order held that industrial units or buildings part of such units would not come under the purview of the Real Estate (Regulation and Development) Act, 2016.

RERA adjudicating officer BD Kapadnis observed in an order that complaints related to industrial units could not be covered under the real estate statute.

The officer passed the order while hearing a case related to a complainant who had booked two units in an industrial facility, but failed to get their possession on agreed date of May 31, 2015. The complainant wanted to withdraw from the project and claimed refund of the amount with interests and compensation.

The RERA authorities said the Maharashtra Ownership Flats Act (Mofa), 1963, was applicable to the units and not the real estate law.

“It is clearly mentioned in the documents that the units are described as ‘estate units’ and they are of ‘big size’. It is mentioned in the documents that the units are agreed to be purchased for setting up industrial business of manufacturing and permitted under industrial location policy,” the RERA adjudicating office observed after going through the relevant documents related to the case.

“After looking into these legal aspects of the matter, the only conclusion that can be drawn is that Mofa is applicable to the premises used for carrying on any industry whereas the definition of the apartment does not include the industrial purpose. There remains no doubt in my mind that the industrial units are not included in the definition of apartment in RERA,” the officer added.


CM to inaugurate K-RERA

Chief minister will launch Kerala real estate regulatory authority (K-RERA) at Mascot hotel at 3pm on January 1. K-RERA was constituted in October.

K-RERA issued a notice directing that all promoters, builders and developers shall not advertise, market, book, sell or offer to sell apartments, plots of buildings from January 1 without obtaining registration from K-RERA if the apartment has more than eight units or the land proposed to be developed is more than 500m. A similar direction was issued to real estate agents that they shall not facilitate sale or purchase of plot, apartment or building without obtaining registration from K-RERA under relevant sections.


Hope for homebuyers, developers see business in stuck projects

The number of stuck projects is huge and reasons are mostly related to the liquidity problem and financial crunch. In such a scenario the best solution is to give them to the developers who have a good record so far.

Real estate developers in Delhi-NCR are sensing business opportunity in completing over two lakh flats that have not been completed and some are taking over stuck projects, rebranding them to sell these unsold apartments at a premium.

Noida’s ATS Group has formed a separate company, ATS Nirman, and has already taken over three stalled projects and is in line to take over more. The business has a potential of Rs 30,000 crore in next five years, said Getamber Anand, CMD of ATS Group. The company takes over projects through the Real Estate Regulatory Authority (RERA) as they need to be deregistered first, he said.

“We are not calling it a project management consultancy but a project revival consultancy,” Anand said. “With ATS branding and assurance, the existing customers’ trust is gained.”

Ashish Sarin, CEO of Gurgaon-based Alpha Corp, said developers are exploring alliances to jointly develop stalled projects through revenue-sharing pacts. “Instead of launching new projects, they are taking over incomplete projects and assuring timely delivery,” he said.

Sarin said stuck projects leading to slowdown in the market is one of the factors contributing to prolonged stress in the real estate industry. “For developers struggling to complete projects, joint ventures or joint developments offer a viable means to overcome financial distress and find synergies,” he said.

As per government estimates, around 458,000 housing units are stuck across more than 1,600 projects in the country.

“It is a good trend as it will help finish the stuck projects faster and helping the buyers get their homes. The projects that were in bad shape were acting as blots on industry, affecting the image of the sector that has good intention of meeting the housing demand of people,” said Manoj Gaur, MD of Noida-based Gaurs Group.

“The number of stuck projects is huge and reasons are mostly related to the liquidity problem and financial crunch. In such a scenario the best solution is to give them to the developers who have a good record so far. The intention should be to hand over the homes to the buyers as soon as possible,” said Deepak Kapoor, director, Gulshan Homz.


UP Rera cancels registration of five stuck realty projects in Gautam Budh Nagar

With an aim to assist homebuyers get returns on their investments, the Uttar Pradesh real estate regulatory authority (UP Rera) cancelled the registration of as many as five realty projects located in Gautam Budh Nagar on December 6. This brings the number of deregistered real estate projects in the district to six. The move comes in light of developers allegedly failing to deliver the projects to buyers. However, the deregistrations have not yielded any result for buyers.

According to the law, the Rera has the right to deregister a project if the developer abandons it. After deregistration, a developer loses control of the project and the Rera has the right to either transfer rights to buyers or to a new developer.

The Rera gives an opportunity to the apartment buyers’ association to take over the stalled project and if this does not work out then a co-developer (a new developer) is engaged to revive and deliver the project.

The regulatory authority, which was formed under the Rera Act 2016 to address issues in the realty sector, has been unable to deliver justice due to legal hurdles.

“We had high hopes from real estate regulatory authority when it was formed in 2016. We thought it will deliver justice as promised in a time-bound manner and we will be able to either get our flats or our investments refunded. But we are clueless what to do now because filing case in Rera has provided no solution so far,” said Arun Chauhan, a buyer, whose family had bought two flats in Unnati Fortune Group’s Aranya project in Sector 119.

Officials of the Unnati Fortune Group were not available for comments even after repeated attempts to reach them.

The first time that UP Rera deregistered a project was Unnati Fortune’s Aranya – a residential project – in May this year, so as to allow the apartment owners’ association to finish it or bring in a co-developer.

“The Rera had deregistered the Aranya project and later, the matter reached National Company Law Tribunal (NCLT) before we could bring out any solution. The government has laid down a process giving models to revive the realty sector and Rera is working on available models to deliver justice,” said Rajive Kumar chairman of the regulatory authority.

Similarly, the Rera’s move to allow buyers’ associations to take over a Noida-based housing project by Shubhkamna developer was disrupted as the matter was taken to the NCLT.

Another project deregistered by the Rera is mixed-land use project Mist Avenue (Festival City), located in Sector 143 along the Noida-Greater Noida Expressway. The promoter of Mist Avenue is lodged in Delhi’s Tihar jail and hence unavailable for comment.

The rest of the projects deregistered by the Rera are all located in Greater Noida.

The authority hopes that in future, the Rera Act 2016 provides better solutions for the realty sector and its investors.

“Whenever a new law comes into being, it has scope for improvement and revision. And with time, the Rera Act 2016 will have more clarity on complicated legal issues and will be more useful to this sector. And even now it has emerged into a successful model,” said Kumar.

According to Rera officials, engaging co-developers is not easy because of debt liabilities associated with distressed projects – no co-developer has taken up any of the six de-registered projects due to liabilities and financial strains of those projects.

“Co-developers worry about the debt that a distressed realty project already has from banks or other agencies and the rules are not explicit. There needs to be more clarity about the co-developers’ liabilities and profit portion. Once this is done, bringing about a co-developer will be convenient,” said Kumar.

“We have demanded from the government that Rera should be given more powers to deliver timely justice for the realty sector. In some cases, petition in NCLT disrupted ongoing proceedings in Rera, thereby delaying justice. We demand that the Rera should address real estate sector cases first before they reach any other court, such as NCLT,” said Prashant Tiwari, president of confederation of real estate developers association of India’s (Credai) Western UP wing.


UP-RERA sends letters to over 1200 realtors informing about stress fund

New Delhi

The Uttar Pradesh Real Estate Regulatory Authority (UP-RERA) has sent letters to 1227 realtors across the state informing them about the benefit of stress fund scheme announced by central government recently.

“The step has been taken in order to ensure that the promoters of such projects are aware of the scheme so that
the projects are completed, and the home buyers of such projects are able to get their home,” said the authority in a media release.

The authority also held a meeting in November with all promoters informing them about the scheme so that they are able to apply for the last mile funds under the stress funds in time and in a proper manner.

Eligibilities which a project should meet to be able to avail the said fund:

  1. Project should be RERA registered
  2. Project is stalled due to lack of funds
  3. Project falls in affordable and middle-income group segment
  4. Project should be net worth positive
  5. Pricing of units shall not be more than Rs 1.5 crore, if the project is located in NCR region and upto or less than Rs 1 crore for rest of India
  6. Priority for projects very close to completion
  7. Carpet Area of housing units should not exceed more than 200 sq meter

The central government in November had proposed fund of Rs 25,000 crore to complete pending realty projects. Out of the total, government infused upto Rs 10,000 crore initially and the rest is to be contributed by banks, LIC and other sources.

The fund will be set up as a Category-II AIF (Alternate Investment Fund) debt fund registered with SEBI and would be professionally run. For the first AIF under the special window, SBICAP Ventures has been engaged to be the investment manager.


Give membership details at regd SROs, MahaRERA tells builders


To ensure more professionalism and avoid frauds, the Maharashtra Real Estate Regulatory Authority (MahaRERA) has mandated promoters (builders) to disclose membership details at its registered self-regulatory organisations (SROs).

The main role of SROs involves to create awareness programmes and encourage its members to comply with the provisions of the Act, rules and regulations, circulars issued by the MahaRERA regularly. A copy of the order is with the Free Press Journal.

Commenting on the development, Manju Yagnik, vice chairperson Nahar Group and vice president NAREDCO (Maharashtra) said, “With this inclusion, the SRO will now be responsible for its members adopting the RERA principles, rules and regulations in a more holistic manner.

The move will beneft consumers in terms of responsiveness and transparency. It will also allow SROs to enable developers to ensure greater professionalism on their part, and build confidence and credibility for their brand.”

Likewise, Parth Mehta, the Paradigm Realty managing director, stated, “It is another wise move to bring parity and professional code of conduct to the real estate practices across the state.

The SROs will encourage members to comply with the RERA Act provisions and implement MahaRERA rules and regulations. Unfair activities practised by developers have shaken the confidence of home-buyers, impacting the sector at large.

The move will restore trust deficit between home-buyers and developers, giving a boost to investment in the real estate sector.”

From December 1, builders applying to MahaRERA for registration of their real estate projects shall have to disclose their membership details with registered SROs.

Currently, the registered SROs with MahaRERA are Maharashtra Chamber of Housing Industry (MCHI), Confederation of Real Estate Developers Association of India (CREDAI), National Real Estate Development Council (NAREDCO).

While any other group, federation of promoters interested to be registered as an SRO with MahaRERA can apply online. They should have at least 500 MahaRERA registered projects of their members. Once approved, the SRO registration will remain valid for five years, according to MahaRERA.


Madhya Pradesh’s RERA gets judicial teeth, first in the country


Real Estate Regulatory Authority (RERA) of Madhya Pradesh became the first realty regulator in the country to get judicial teeth. Retired district judge, DN Shukla was appointed as first executing officer of RERA on Wednesday.

With the appointment of execution officer it will be legally binding on parties, including realtors and consumers, to follow the directives of the authority.

MP government had amended RERA rules for the purpose and issued a gazette notification facilitating appointment of an executing officer.

In the present set up, if RERA passes an order and the party concerned is unwilling to accept it, RERA moves the civil court. In such a situation, odds are that the matter may get delayed in legal procedures.

Going by RERA statistics, out of the 3,800 complaints it received so far, 2,600 have already been disposed, while 1,200 are pending. Of the total disposed cases, 88% went in favor of allottees, while the remaining 12% went in favour of builders. It means 2,300 went in favor of allottees while 300 to builders.

Of the total 2,300 orders that went against builders, there are about 400 cases in which builders are not complying with RERA orders. The execution officer with powers of both the civil and revenue court would now ensure the compliance of RERA orders.

The appointment required amendments in state RERA rules 27 and 28 that deal with recovery of interest; penalty and compensation; implementing the orders; directions and decisions of the authority. State government did the needful on the proposal of RERA.

The executing officer would take charge in a week. A panel of legal experts comprising senior judges and law secretary conducted interviews after inviting applications and finalised the name of DN Shukla.

Once the executing officer takes charge an allottee in favour of whom order was given by RERA against the builder and the builder is not accepting it, can approach the execution officer in 90 days. The execution fee would also be borne by builders once the order is executed and allottee need to pay only a token sum of Rs 1,000.

RERA chairman Anthony deSa confirmed no other state in country has an executing officer, as of now. He said, it would further strengthen the authority and ensure that its orders are followed without fail.


Big relief to home buyers! RERA moots policy to complete stalled projects

The authority recommended that such a policy can be formulated on the lines of Section 8 of the Real Estate (Regulation and Development) Act, 2016, under which it can allow completion of pending developmental work in a stalled project.

In a bid to provide relief to homebuyers in cases of stuck projects, Uttar Pradesh (UP) RERA has suggested to the state government to formulate a policy where the authority can direct homebuyers to form an association, which will then work on completing the stalled housing units. Else the authority, with participation of homebuyers, can go to the open market to hire a co-developer.

The authority recommended that such a policy can be formulated on the lines of Section 8 of the Real Estate (Regulation and Development) Act, 2016, under which it can allow completion of pending developmental work in a stalled project.

A senior state government official said UP RERA, in a letter to the state government, has suggested forming a policy on lines of Section 8. “The authority said progress of projects and timely completion is dependent on utilisation of money collected from homebuyers. To ensure this, it got around 210 projects audited and took necessary action based on the audit. It de-registered some projects and made a reference to the state government for deciding a policy about proceeding under Section 8 of the Act in such matters,” he added.

If this Section can be further utilised in a “more legalised institutional setting”, then RERA would be able to provide relief to around 25,000-30,000 home buyers. The state government is reviewing the proposal, the official said.

Section 8 provides that upon lapse of registration or revocation of registration under RERA, the authority may consult the government to take such action as it may deem fit, including carrying out the remaining development works by a competent authority or an association of allottees or in any other manner, as may be determined by it.

When contacted, UP RERA member Balwinder Kumar told FE, “We have written to the state government that first we can invite the homebuyers’ association to work with us for completing the remaining development work. If that is not possible, we will go to the open market and select a co-developer in a transparent procedure to complete pending work. It is important that we search within our own official spheres to find solutions for stalled projects.”

Another UP RERA official said top priority is providing relief through prompt hearing and complaint redressal. UP RERA’s track record proves this, he said, adding, “Before RERA, only 2,014 complaints were disposed by officials in the state of the total 5,139 registered complaints. However, this changed with formation of RERA. Around 12,780 complaints were filed and 8,506 complaints decided till August 2019.”

“Number of registered complaints in UP and their disposal by RERA is highest in the country,” the official noted. He added that there are a couple of cases in UP and Madhya Pradesh where the authority took action under Sections 7 and 8.

“The authority is also getting stressed projects inspected and has developed a mobile application for preparation and submission of reports online. These are uploaded on the web page of the project concerned. It has also issued show-cause notices to 21 projects in NCR and 17 non-NCR projects, where promoter has either not obtained completion or occupancy certificate nor applied for extension of project registration, but work is either going on or is stalled,” he explained.

UP RERA has also set up a panel of auditing firms for financial and forensic audit of projects and will soon embark upon the verification of escrow accounts of projects through the auditing firms on the panel of Institute of Chartered Accountants of India (ICAI).

At present, more than 17,900 complaints have been registered with UP RERA, which is the highest in the country. Of this, over 10,500 complaints have already been decided.