Requisites for valid Offer of Possession.

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Validity of offer of possession: It is necessary to clarify this concept because after valid and lawful offer of possession, liability of promoter for delayed offer of possession comes to an end. On the other hand, if the possession is not valid and lawful, liability of promoter continues till a valid offer is made and allottee remains entitled to receive interest for the delay caused in handing over valid possession. The authority after detailed consideration of the matter has arrived at the conclusion that a valid offer of possession must have following components:

 

1.  Possession must be offered after obtaining occupation certificate- The subject unit after its completion should have received occupation certificate from the concerned department certifying that all the basic infrastructural facilities have been laid and are operational. Such infrastructural facilities include water supply, sewerage system, storm water drainage, electricity supply, roads and street lighting.

2.  The subject unit should be in habitable condition- The test of habitability is that the allottee should be able to live in the subject unit within 30 days of the offer of possession after carrying out basic cleaning works and getting electricity, water, and sewer connections, etc. from the relevant authorities. In a habitable unit, all the common facilities like lifts, stairs, lobbies, etc. should be functional or capable of being made functional within 30 days after completing prescribed formalities. The authority is further of the view that minor defects like little gaps in the windows or minor cracks in some of the tiles, or chipping plaster or chipping paint at some places or improper functioning of drawers of kitchen or cupboards etc. are minor defects which do not render an apartment uninhabitable. Such minor defects can be rectified later at the cost of the developers. The allottees should accept possession of an apartment with such minor defects under protest. This authority will award suitable relief or compensation for rectification of minor defects after taking over of possession under protest.

However, if the subject unit is not at all habitable because the plastering work is yet to be done, flooring works is yet to be done, common services like lift etc. are non-operational, infrastructural facilities are non-operational, then the subject unit shall be deemed as uninhabitable and offer of possession of an uninhabitable unit will not be considered a legally valid offer of possession.

 

3.  Possession should not be accompanied by unreasonable additional demands- In several cases, additional demands are made and sent along with the offer of possession. Such additional demands could be of minor nature, or they could be significant and unreasonable which puts heavy burden upon the allottees. An offer accompanied with        unreasonable demands beyond the scope of provisions of agreement should be termed an invalid offer of possession. Unreasonable demands itself would make an offer unsustainable in the eyes of law. The authority is of the view that if the additional demands are made by the developer, the allottees may accept possession under protest or decline to take possession raising objection against unjustified demands.

 

 

ADVOCATE KULDEEP KUMAR KOHLI

KOHLI AND KOHLI LAW ASSOCIATES

V-3/11, DLF PHASE III, GURUGRAM,

 HARYANA – 122002

Ph:01244014318,0124 4990107

Mail ID: contact@kohlilegal.com

WWW.KOHLILEGAL.COM