The process of buying property in Goa involves many details, acts and laws that are unique to the state. Saffronart spoke with Mr. Sudin M.S. Usgaonkar, a respected advocate based in Goa who specializes in real estate and property law, by phone and email to understand some of these issues and intricacies.

1. What are the issues specific to Goa with regard to title of properties that a buyer should address? how is this different from the way titles work in other places in India? (such as new Delhi or mumbai)

A) It is pertinent to note that Goa continues to have Portuguese personal law relating to marriage / divorce and succession. Personal laws of different religious communities prevailing in rest of India namely for Hindus, Muslims, Christians etc like Hindu Marriage/Succession Act etc are not extended to the State of Goa. Barring the above major laws and other specific laws referred to hereinafter, rest of the laws relating to property like Transfer of Property Act/ Contract Act, Easement Act, Registration Act, prevailing in India apply equally to the State of Goa.

B) However, it must also be noted that some laws which were prevailing in Goa under the Portuguese Regime and which have not been repealed by the extension of corresponding Indian law (if there is no such Indian Law) would continue to prevail, like law relating to coownership, pre-emption, demarcation etc.

C) In Goa, one common Portuguese family law relating to Marriage, Divorce, Succession applies to the Goans uniformly irrespective of their religion (concept of common Civil Code under Article 44 of the Constitution of India).

D) Salient features of Goan personal laws:

(i) Marriage: Both the spouses have equal half share in the assets held by them before and after marriage, by default, unless a contract called ante-nuptial contract is executed prior to marriage to not have the said communion. The spouses are termed as cosharers and not co-owners.

In view of the above, it is absolutely essential for both husband and wife to be parties in a conveyance, as conveyance by only one spouse is totally void and does not convey his/her half share.

This is different from the concept of co-ownership where one co-owner can convey his undivided right, for example children who inherit property from parents or persons buying the property jointly would be the co-owners who can alienate their undivided right.

Only death or divorce cuts off the communion. Upon death the half right of the parent is inherited by the children who are then classified as co-owners and not co-sharers like husband and wife.

(ii) Succession: The execution of documents relating to Deed of Succession, Deed of Renunciation and Wills continue to be governed by Portuguese Law and such documents are recorded by an Officer called Notario (Sub-Registrar) in his Books and maintained as public records and certified copies issued. A distinguishing feature of the will is that it does not require probate as is the norm in many parts of India, and the document by itself can be used as substantive title document.

Also, certified copy of Deed of Succession is provided only after a draft is published in the Government Gazette and no objections are received within one month.

Also, under another law called Codigo RegistoPredial (Land Registration Code), the acquisition of title to the property is registered in 2 records called (i) Description, (ii) Inscription. The former describes a property with its boundaries and allocates a number. The latter records inscription i.e. source of acquisition of title to the property, and the entry used to be made by the Officer on verifying the title and the name of the owner is inscribed against the corresponding description number.

This registration is not to be confused with the registration of Deeds of Sale, Gift and Agreement by the Sub-Registrar under the Indian Registration Act under which the sale of property is registered, whereas under Portuguese law, the title in the land is registered.

Availability of all the above documents facilitates to trace the flow of title. Hence, there is no need to carry any separate search in the office of the Sub-Registrar.

In the matter of free disposition like Will/Gift there is a cap by which only 50% can be alienated which is called the “disposable quota” and the balance 50% is called “non-disposable quota” or the legitime which is necessarily reserved for the heirs called forced heirs. If the Will/Gift exceeds the disposable quota, it can be reduced to the prescribed limit by the court in succession proceedings called “Inventario”. Another distinguishing feature is the order of succession whereby the half right of a spouse first passes on the descendants, then to the ascendants, then to collaterals, then to the spouse, then to other relatives and lastly to the Government (in the absence of the first category the succession passes on to the next category). Therefore, care has to be taken when the couple dies issueless, unless there is a Will/Gift executed by them to take care of the respective half rights. It must not be confused that the half right would straight away go to the other spouse.

In the case of preemption, one co-owner before selling his undivided right to an outsider has to give first preference or right of refusal to the other coowners, failing which the aggrieved co-owner can file a suit within 6 months to effect conveyance in his name from the actual purchaser by offering him the consideration.

Under a local law called the Goa Mundkar Act, 1978, a dweller of a house residing in a dwelling house prior to 1975, is called a mundkar and is entitled to, at his/her option, either an area of 300 square meters around and inclusive of the dwelling house, or an area of 5 meters from the outer wall of the dwelling house. Said mundkar has statutory protection from eviction. Relating to inheritance of Mundkarship, as per Section 3 of the Mundkar Act, the rights of mundkars are inheritable, hence the children of mundkar would inherit the right of their father. As the entitlement of a mundkar to the area around the dwelling house is 300 square meters or 5 meters from the outer wall, all the children would have right to the said 300 square meters, collectively, and no one heir can separately claim the said entire area to the exclusion of the other heirs.

2. What are the documents or checks on construction Licensing for a property or a real estate project in Goa that a buyer should look into?

The documents to be checked are:

1. Whether the area is in settlement / agricultural/green / industrial in the regional map (relating to villages) or outline development plan (cities) under the Town and Country Planning Act

2. Whether conversion sanad is obtained under Section 32 of the Land Revenue Code converting area into non-agricultural, (since all the land is deemed to be agricultural)

3. To check whether Town and Country Planning Department / Planning and Development Authority has approved the sub-division/building construction plan.

4. Whether the Municipality/Corporation/Village Panchayat has approved the sub-division/construction license. In the case of areas falling in the coast line:

5. Whether Coastal Zone Management Authority has given approval under Coastal Regulatory Zone (CRZ) Regulation?

6. Whether approvals from Environmental Authorities (MOEF) are obtained if the development exceeds a prescribed built-up area of 20,000 square meters?

Other specific issues relate to existence of tenancy on the land which is apparent from the name of the tenant in the column of tenant in survey Form I & XIV. In such events, the tenants having become deemed owners under Agricultural Tenancy Act are forbidden from making transfer without consent of the Authority/Mamlatdar. Under another law called Goa Land Use Regulation Act, conversion of such tenanted land to non-agricultural purpose is not permitted under any circumstances.

3. for the checks on construction Licensing is it necessary or advisable to consult a registered civil engineer or architect in addition to a lawyer?

It may be advisable to appoint Engineer/Architect to verify the data relating to engineering and architectural aspects.

4. at the time of short listing properties for purchase, what would be the basic title documents to look for before going into a full-fledged title investigation for the finally selected property?

In Goa, the title is checked for a minimum period of 30 years. The intended seller must have the basic title document like Sale Deed, Gift Deed, Will or Court Succession proceedings to prove his title. The recitals, if any in the Sale Deed may indicate the flow of title primafacie. Also survey record Form I & XIV for village propertycard for cities to confirm lawful and physical possessionis a must.

5. When an initial token payment is given by a buyer to seller to temporarily block the property till the due diligence process is completed, what document should be signed to secure a refund if necessitated?

Ordinarily an agreement can be signed putting on paper the intentions of the parties. Sometimes an agreement styled as Memorandum of Understanding (MoU) is also executed although the Contract Act does not provide forany such MoU. For the last 3 years in Goa an Agreement to Sell has to carry a stamp duty equivalent to 1% of the sale consideration. An MoU may be difficult to enforce if objection is taken that it is an Agreement without stamp duty. In the case of registration of the Agreement with 1% stamp duty, only upon delivery of possession are full registration fees (i.e. 2%) payable, if not, only minimum charge of Rs. 100/- is payable.

6. When purchasing old Goan houses which are very much in demand, what remedy is available if any one of several co-owners refuses to sell his minority share?

A co-owner, who has not agreed to sell, cannot be compelled to convey by any action at law although he has minority share. Only remedy is to file a suit for partition of the estate.

7. What kind of development is permissible in the coastal regulatory Zone (crZ) areas of the Goan coast and river banks?

In the matters of CRZ:

a. CRZ - III i.e. the extent along the Arabian Sea: CRZ

i. Between 0 – 200 sq. metres from High Tide Line (HTL) no development zone where no development is permitted;

ii. 200-500mtrs. from HTL Regulated development is permissible having 33% FAR (Floor Area Ratio), height restriction of 9 metres from ground level and the buildings to have ground plus one floor only.

b. CRZ - II these are areas which are densely populated urban areas where building will be permitted only on the landward side of an existing road or an authorized construction.

c. CRZ - I ecologically sensitive areas having ancient monuments, turtle nesting etc,

i. Between 0-500 metres no development. Along the banks of rivers – no development in a belt of 0 – 100 metres from HTL, or the width of the river whichever is less.

8. If one were to purchase an existing property located within 500 meters, what documents would ensure that it was legally built?

CRZ regulations are enforced from 19th February 1991. Therefore, anything constructed earlier thereto would have no problem. The same can be ascertained by the existence of the structure in the survey plan or any other proof like Occupancy Certificate granted by Civil Authority.

9. a lot of foreign nationals, of non-Indian origin have purchased houses in Goa either by proper conveyance Deeds or agreements for Sale with possession, is it legally permitted for an Indian national / nrI / pIo to acquire such properties from foreign nationals?

Purchase sale of property from/to Foreign National will be governed by FEMA. For Indian nationals, NRIs and PIOs this may be possible with requisite approvals.

10. Is it legal to build a house on land that is zoned an orchard? If yes, is a sub-division of orchard lands into 1 acre plots for the purpose of building dwelling houses, legally permissible?

A) The Zoning is done as per the Goa Town and Country Planning Act, 1974. Orchard Zone being agricultural (green) zone, construction per se is not permissible in the said zone, unless there is change of zone from orchard to settlement under the said Act. The change of land use is permissible under Section 17 of the said Act, however, the said matter is entirely at the discretion of the State Government.

B) It may be possible to put up a farm building and not dwelling houses into a 1 acre (4000 square meters) plot in orchard lands.

11. What are the rules applicable for construction of farm houses?

A) Farm Building is a concept under Goa Land Revenue Code, 1968. Section 2 (11) of Goa land Revenue Code defines farm building as follows:

“(a) for the storage of agricultural implements, manure or fodder,

(b) for the storage of agricultural produce,

(c) for sheltering cattle,

(d) for residence of members of the family, servants or tenants of the holder, or

(e) for any other purpose which is an integral part of his cultivating arrangement.”

B) Planning and Development Authority (Development Plan) Regulation, 1989, framed under Town & Country Planning Act, in part IV relating to Zoning Regulations and Use Provisions under No.VII lays down as under :

“USES PERMITTED (ZONE A 1) : Agriculture, horticulture farming and allied operations, subdivisions of land for agricultural purposes, and uses ancillary to agriculture in the form of irrigation, land reclamation, pump or other electrical installation, bio-gas plants, farm house, poultry, dairy, piggery and godowns for agricultural storage and implement storage.

A) The regulations applicable in agriculture zone A1 for any uses ancillary to agriculture shall be as under:

REGULATIONS A 1

a) Minimum area of plot 4000.0 sq. m.

b) Minimum width of plot 40.0 m

c) Minimum width of access road 3.0 m

d) Maximum permissible coverage 2.5%

e) Maximum permissible F.A.R. 5

f ) Minimum setbacks : Front Side & Rear 5.0 m

g) Maximum permissible height 5.5 m

12. What is the stamp duty and registration fee applicable in Goa? are there any exemptions / reduction for female purchasers, defense services personnel, etc.?

A) Stamp duty structure under Goa Stamp Act is as follows:

Consideration Stamp Duty Rupees

0-50,00,000 2%

50,00,000-1,00,00,000 2.5%

Above 1 crore 3%

B) Registration fee: 2% on the consideration.

C) To the best of our knowledge there are no exemptions / reductions for females, defence service personnel, etc.

13. please distinguish between a tenant and a mundkar in property records in Goa. can one purchase a tenanted or mundkar occupied property?

A) Under the Goa Agricultural Tenancy Act, 1964, a tenant of agricultural land is conferred status of a “deemed purchaser” of the land held by him under Section 18-A, and such land vests in him free from encumbrances. The tenant is permitted to formally complete the process of purchase of the agricultural land held by him by making the nominal payment laid down in Section 18-D of the Act. Section 18 (k) of the said act prohibits transfer of such land held by tenant / deemed purchaser/purchaser, by sale, gift, exchange, mortgage, lease or assignment without prior permission of the Mamlatdar. Rule 6 of Goa Agricultural Tenancy (Special rights and privileges of tenants) Rules, 1977, prescribes conditions for granting such permission under Section 18 (k) which are as follows:

(a) that the land is required for agricultural purpose by a an industrial or a commercial undertaking in connection with any industrial or commercial operation carried on by such undertaking; or

(b) that the transfer is for the benefit of any Educational or charitable institution; or

(c) that the land is required by a Co-operative farming society; or

(d) that the land is being sold in execution of a decree of a civil court for the recovery of arrears of Land Revenue; or

(e) that the land is being sold by the landowner on the ground that he is permanently rendered incapable of cultivating the land personally and none of the members of his family are willing to cultivate personally; or

(f ) that the land is gifted in favour of a Religious or a Charitable Institution;

(g) that the land is being partitioned among the heirs/survivors of the deceased landowner;

(h) that the land is being leased by a landowner who is a minor, or a widow, or a person subject to any physical or mental disability or a member of the armed forces or among the land owners holding the land jointly.”

B) The law called Goa Land Use (Regulation) Act, 1991, prohibits conversion of such land vested in a tenant under Agricultural Tenancy Act to non-agricultural purpose, notwithstanding anything contained in Goa Land Revenue Code and Town and Country Planning Act.

C) In the case of mundkar, under Section 17 of the Mundkar Act, 1975, a mundkar can sell his mundkarial dwelling house (including the area purchased i.e. maximum of 300 mtrs. or 5 mtrs. from the outer wall of the house in rural areas and 200 mtrs. or 2 mtrs. from the outer wall of the house in urban areas) after a period of 3 years from the date of issue of certificate of purchase and that too after the mundkar gives the first option of purchase to the landlord under Sub-Section 2 of Section 17.

14. In a residential complex consisting of multiple apartments or villas, how is title of land transferred to the purchaser of a single unit? If a society has been formed, is it essential to acquire membership of the society for effective transfer of property?

A) The purchaser of the apartment/villa will get conveyance of undivided right in the land corresponding and proportionate to the built up area of the apartment/villa occupied by the said purchaser.

B) Yes, a person has to be a member of the society which holds the title of the land.

15. What is the essential information / supporting documents that buyers / sellers need to provide to the registration authorities for Deeds of Sale?

The original sale Deed and in the event the plot is in “Planning Area” under the Goa Town and County Planning Act, a permission under Section 49 (6) of the said Act, is required for the purpose of registration of the document in respect of plots which are not as per Survey plan issued by Survey Department or plots which have no development permission for such Sub-division from Planning and Development Authority.

16. even if all legal permissions for construction have been obtained, one hears of projects in Goa running into trouble with the local community. Why has this happened in the past, and what does one need to look out for to avoid such situations?

The objections are for “mega projects” since the locals are worried that such mega projects will exert pressure on the existing infrastructure like water supply/ garbage etc.

17. What are the main distinctions between buying a property in north Goa and South Goa? What are the advantages and disadvantages of each area?

There are absolutely no distinctions. Hence, no question of any advantage or disadvantage except the commercial aspect.

18. how will the new airport planned in north Goa affect prospects for north and South Goa properties?

The new airport will improve the prospect of tourism potential of virgin coastal areas to the extreme north of Goa (Pernem) as also areas along the coastal belt of southern tip of Maharashtra.