Transferring property to the legal heirs can often be a complicated and confusing process, especially in cases where the owner is deceased. Then you have managing committees in a society, who sometimes refuse to transfer the flat without a succession certificate. While such a certificate does prove heirship without a doubt, there are cheaper and faster methods to transfer a flat that many remain unaware of.
Succession certificates require you to hire the services of a lawyer and approach the high court with sufficient proof of legal heirship. Not only is the process time-consuming, it is also costly. One can easily avoid paying exorbitant fees by opting for a release deed or a confirmation deed, as the case may be.
This week, questions are answered about the need for a succession certificate and an alternate solution is given for legally transferring a flat without one. We will also look at a situation where a cooperative housing society (CHS) that is planning to undergo redevelopment has one or more flats mortgaged to a bank.
Mortgaged Flat in a Society Planning for Redevelopment
Question: If a flat in a society that is about to undergo redevelopment is mortgaged, what will happen to the loan which was taken on the said flat? Is the member required to pay it off before redevelopment commences or does the society have to take any action, prior to accepting the redevelopment offer?
Answer: It entirely depends on the lender with whom the flat is mortgaged. If the lender, upon inspection of the redevelopment offer, finds the builder to be a reputable establishment who would potentially meet deadlines and deliver the flat on time, then they may wish to continue the mortgage agreement with the proposed redeveloped flat.
On the other hand, the lender can ask for foreclosure of the loan, if they find the builder chosen by the society, is not reputable or reliable according to them.
Difference between a Release Deed and a Succession Certificate
Question: My dad passed away without making a Will and we have one flat in Navi Mumbai. We are four sisters and want it to be transferred on our mother's name, but the Society is asking for a succession certificate. Our lawyer recommended that a relinquishment deed in favor of our mother should be possible and would be the easiest approach, as we are all residing in different places. But our Society is not accepting such a relinquishment deed. What we can do in this situation?
Answer: You say that a flat in Navi Mumbai is owned by your father who expired. His four daughters want that flat be transferred in the mother's name. Kindly clarify, whether these four daughters are the only legatees with their mother to the said flat? Also, if they reside with their mother in the flat?
In which case, all four daughters and the mother can do a release deed on a Rs500 non-judicial stamp paper, thus releasing their right on their father's flat, in favor of their mother. In order to make this release deed, buy a Rs500 non-judicial stamp paper in your mother's name and register the deed with the sub-registrar of assurances office.
Use the certified copy of the aforementioned and registered release deed and it's Index-2 to transfer your father's flat in your mother's name. Your Society cannot insist on a succession certificate for your late father's flat, as the release deed has the same legal value and costs a lot less than a succession certificate.
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Cost Effective Method to Transfer Flat Without A Succession Certificate
Question: The current flat in which my brother and I are residing, was in the name of my father who passed away last year. We have been residing in the same flat for the last 45 years. Our mother is no longer alive, and we are both the only two legal heirs. As per the Society's records we are also the nominees to the flat. We want the flat to be transferred in our name and want to sell it at a later date. Our Society is asking us to provide a succession certificate or heirship certificate for transfer, so that we may be able sell the flat later down the line. They have informed us that they would otherwise transfer the flat to us only as Nominee members. Kindly advise if a succession certificate is necessary.
Answer: It is unfortunate that legal fraternity are not informing the public about the non-judicial testamentary procedure that is available to the legatees (legal heirs of a deceased owner's property).
Since you and your brother are the only two children to your late parents, both of you will make a 'Confirmation Deed' on Rs500 non-judicial stamp paper, purchased in your name (or in your brother's name), with copy of: (1) Index-2 of your father's flat, (2) Share Certificate (both sides), (3) Death certificate of your mother, (4) Death certificate of your father, (5) PAN and Aadhar Cards of yourself and your brother and (6) Nomination form in original.
This confirmation deed should be registered with sub-registrar of assurances office. With a certified copy of the registered confirmation deed and its Index-2, your Society can transfer your father's flat in both of your names jointly, making the elder sibling a member and younger one, a co-member.
A confirmation deed serves the purpose of a succession certificate or heirship certificate, which has the same validity. Following documents should be collected and submitted to your Society, to transfer your father's flat in the name of both of you as joint owners. Appendix number to the forms mentioned below are as per the Society's Bye-laws Book of year 2014.
1. A covering letter by you and your brother, stating that in the file in same order, you are submitting following documents, to transfer your father's flat jointly in name of you and your brother.
2. sub-registrar of assurances certified copy of your confirmation deed, with its Index-2.
3. Membership application form filled and signed by the elder sibling, as in Appendix-15 (in two copies).
4. Co-membership application form filled and signed by the younger sibling, as in Appendix-5.
5. The first nominee should submit a crossed cheque of Rs600 in the name of the Society, membership entrance fee of Rs100 and membership fee of Rs500.
6. The second nominee should submit a crossed cheque of Rs100 in the name of the Society, as co-membership entrance fee.
7. Original share certificate of your father's flat, in a punched plastic folder, placed above covering letter in the file.
Before you submit the documents, original share certificate and cheques in a file, take a Xerox copy, and place all copies of the documents in another file.
After submitting the file containing original documents to your Society, take Society's seal and signature on the copy of covering letter in your copied file.
After 30 to 60 days of submitting your documents, society will transfer the share certificate of your father's flat in joint name of you and your brother, making you joint owners of your father's flat.
(Shirish Shanbhag has an MSc in Organic Chemistry, Diploma in Higher Education, and a Diploma in French and has completed his LL.B. in first class in 2021. Before his retirement, he was a junior college teacher at Patkar College from July 1980 to May 2012, teaching theoretical and practical chemistry. Post-retirement in 2012, he started providing guidance and counselling to people on several issues, specifically focusing on cooperative housing society-related matters. He has over 30 years of hands-on experience in all matters about housing societies and can provide out-of-box solutions for any practical issue.)