Before any advance is paid, four things should be established: that the seller’s chain of registered deeds runs back without a break for at least thirty years; that the public record of the property agrees with that chain; that nothing is charged, attached, acquired or restricted; and that what is being sold is the same land that is described in the deed and standing on the ground. Each of these is a search of a public record, and each is far cheaper before payment than after.
The chain of title
A purchaser is entitled to know how the seller came to hold what he is selling, and to see it in documents rather than in narrative. The examination runs backwards: the seller’s own deed, the deed by which his predecessor took, and so on for not less than thirty years, together with the instruments that intervene — probates, letters of administration, deeds of partition or family settlement, gifts, releases, mortgages and their reconveyances, and any powers of attorney under which anyone signed.
What the search is looking for is a break: a link that is missing, unregistered, executed by someone who did not hold the interest he purported to transfer, or inconsistent with the next link in the chain. Registered deeds may be searched and certified copies obtained through the registration department’s records, which are searchable by party name and by document particulars.
Three recurring problems deserve particular attention. Where a deceased person appears in the chain, what devolved on the successors, and whether all of them joined in the later transfer, has to be established — a transfer by some of several heirs conveys only their shares. Where anyone acted under a power of attorney, the instrument must be read to see whether the act done fell within it, and whether the power subsisted at the time. And where a co-owned property is sold by one co-owner, what is conveyed is that person’s undivided share, not the property, however the deed is worded.
The public record
Read the chain against the record of rights and the municipal assessment record, as described in the guide to land records. The two enquiries answer different questions and the divergence between them is where a defect shows. Check that mutation stands in the seller’s name; that the classification of the land permits the use intended; and that the area and boundaries in the deed correspond to the dag on the mouza map and to what is actually enclosed on the ground.
Encumbrances and adverse claims
Obtain the searches that show whether the property is subject to a charge or a claim: a search for encumbrances against the property over the relevant period, the position on land revenue and municipal rates, and, where a company or a mortgage is involved, the corresponding registers. Establish whether the property is or has been the subject of a suit, and whether any order restrains its transfer. Where the property stands within an area affected by a proposed acquisition, road alignment or drainage scheme, ask the authority.
Certain categories of land cannot be transferred at all, or cannot be transferred free of the rights of a person who is not the seller. Those are set out in the guide to restricted and risky land, and the enquiries there should be made in every transaction, not only in those that look unusual.
The building
For a flat or a constructed house, the papers of the structure are as important as the papers of the land: the sanctioned plan, whether what has been built corresponds to it, the completion or occupancy certificate, and in a building of multiple units the deed by which the promoter took the land, the development agreement with the owner, the owner’s allocation, and whether the unit being sold falls within the promoter’s allocation or the owner’s. Where the project is registered under the Real Estate (Regulation and Development) Act, 2016, the registration and the disclosures filed with the West Bengal Real Estate Regulatory Authority are public and should be read.
The capacity of the parties
Establish that every person who must sign can sign: that a co-owner’s share is accounted for, that a minor’s interest is not being dealt with without the sanction the law requires, that a company or a firm has authorised the transfer, that a trustee or a shebait has the power he is exercising, and that a seller resident outside India has the standing and the tax clearances his position requires.
Order of work
Search first, agree afterwards. The sequence that protects a purchaser is: inspect the papers, obtain the searches, then execute an agreement for sale that records what has been found and what remains to be produced, then pay in stages against the production of what is missing, then complete. An advance paid on a title that has not been examined converts a legal question into a negotiation, and the purchaser is on the weaker side of it.
Papers to obtain from the seller
- The seller’s registered deed of transfer, in original
- The earlier deeds in the chain, covering not less than thirty years
- Where a deceased person appears in the chain, the probate, letters of administration or succession certificate, and evidence of the heirs
- Any power of attorney under which a deed in the chain was executed
- Certified copy of the current record of rights, and the mutation certificate
- The current municipal assessment particulars and the latest rates receipt
- The latest land revenue receipt
- The sanctioned plan, and the completion or occupancy certificate
- For a flat: the development agreement, the owner’s allocation, and the promoter’s title deed
- Any subsisting mortgage and the no-dues or reconveyance in respect of it
- Where the project is registered, the RERA registration particulars
Frequently asked questions
How far back should the chain of deeds go?
Not less than thirty years is the usual practice, and further where the chain crosses a devolution on death, a partition, a transfer by a trustee, or the changeover from RS to LR records.
Is a search necessary if the seller’s papers look complete?
The papers a seller produces are the papers a seller has chosen to produce. A search is a reading of the public record, which is what will be produced against a purchaser later.
Can a defect be cured after purchase?
Some can, at a cost, and with the co-operation of persons who may by then have no reason to co-operate. Others cannot be cured at all. The whole value of a search is that it is done while the purchaser still has the money.
Does a bank’s approval of a home loan mean the title is good?
No. A lender’s examination is directed to its own security and its own risk appetite, and it is not a substitute for a purchaser’s own examination.
What a particular set of papers establishes depends entirely on those papers. This page describes the general position and nothing in it is advice on any specific property or transaction.