Real estate—India—Q&A guide
Real estate—India—Q&A guide

The following Property practice note provides comprehensive and up to date legal information covering:

  • Real estate—India—Q&A guide
  • 1. How would you explain your jurisdiction’s legal system to an investor?
  • 2. Does your jurisdiction have a system for registration or recording of ownership, leasehold and security interests in real estate? Must interests be registered or recorded?
  • 3. What are the legal requirements for registration or recording conveyances, leases and real estate security interests?
  • 4. What are the requirements for non-resident entities and individuals to own or lease real estate in your jurisdiction? What other factors should a foreign investor take into account in considering an investment in your jurisdiction?
  • 5. If a non-resident invests in a property in your jurisdiction, are there exchange control issues?
  • 6. What types of liability does an owner or tenant of, or a lender on, real estate face? Is there a standard of strict liability and can there be liability to subsequent owners and tenants including foreclosing lenders? What about tort liability?
  • 7. How can owners protect themselves from liability and what types of insurance can they obtain?
  • 8. How is the governing law of a transaction involving properties in two jurisdictions chosen? What are the conflict of laws rules in your jurisdiction? Are contractual choice of law provisions enforceable?
  • 9. Which courts or other tribunals have subject-matter jurisdiction over real estate disputes? Which parties must be joined to a claim before it can proceed? What is required for out-of-jurisdiction service? Must a party be qualified to do business in your jurisdiction to enforce remedies in your jurisdiction?
  • More...

This Practice Note contains a jurisdiction-specific Q&A guide to real estate in India published as part of the Lexology Getting the Deal Through series by Law Business Research (published: September 2020).

Authors: AZB & Partners—Hardeep Sachdeva ; Abhishek Awasthi; Ravi Bhasin

1. How would you explain your jurisdiction’s legal system to an investor?

The Indian legal system bears the influence of the English common law system, which is reliant on the value of binding case law precedents, rulings on equity and the principles of natural justice. Despite the influence of the English common law system, the Indian legal system has also incorporated elements of civil law, such as certain investigative powers of the judiciary relating to the institution of commissions of enquiry or questioning of witnesses.

The judicial hierarchy flows upwards from the district or lower courts in every district or city to the high courts in the states, all subject to the supervision and judgment of the apex court of India, the Supreme Court. With respect to disputes pertaining to transfer of immovable property, the courts’ powers extend to granting injunctions in accordance with the Civil Procedure Code 1908 (CPC) and ordering performance of contracts under the Specific Relief Act 1963 (SRA).

Broadly, the key legislation governing real estate in India includes the following:

  1. Transfer of Property Act 1882 (TPA);

  2. Indian Contract Act 1872 (Contract Act);

  3. Real Estate

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