Tips for landowners before they enter into a joint venture agreement with real estate developers

Author: Sachin Gupta | Find me on Twitter Follow @sach_gupta

Recently, our team was interacting with some of the landowners who have entered into a joint venture agreement with real estate developers in Delhi NCR region. Now, believe it or not, most of these landowners are inheritors of ancestral property and have no clue about the legalities of a joint venture. They go as per the words of their confidants and sometimes find themselves into trouble. Take this, a landowner who entered into a joint venture agreement with a real estate developer in 2006 still finds that his land has been locked by the developer and there are no signs of the proposed group housing project taking off. What can you as the owner of land do before entering into a joint venture with a property developer?

1. First of all, what is a joint venture between a landowner and a real estate developer?
Joint ventures are formed by at least two parties with the objective of achieving a specific investment return. Unlike many other business agreements, when the objective is achieved, the joint venture is usually terminated. Following are the attributes of a joint venture.

• Risk sharing: A single investor may be unwilling to undertake a real estate venture because of its size, location, capital requirements, and/or duration. However, by sharing the risk, two or more parties may be willing to undertake the venture.
• Combining expertise with capital: Joint ventures are frequently formed as a way to pool equity capital from one or more sources, as well as a means of bringing parties with different expertise to the venture. A joint venture could also involve purchasing existing properties and operating them. In this case, one of the parties may be responsible for acquisition, leasing, and management, and others may provide capital.
• Speculative objectives

2. Organizational forms

Participants in joint ventures may include any combination of individual investors, partnerships, corporations, or trusts. However, a joint venture in and of itself is not a legal form of organization. In order to specify capital contributions, rights, duties, profit sharing, and the like, a joint venture agreement or a business entity must be created. The choice of organizational form used to accommodate those various groups of investors could be a partnership, corporation, Pvt. Ltd, or trust. Partnerships are frequently the vehicle of choice in real estate joint venture.

3. Profit sharing

Because the parties to a joint venture may contribute different things, and possibly in different proportions, a partnership must be structured such that it provides economic incentives for all parties. Differences in tax status of investors also may affect the way partnerships are structured.

A joint venture can take on a number of different partnership forms. The most common is the limited partnership. As is the case with all partnerships, there must be at least one general partner and any number of limited partners. Generally, in real estate, limited partners are the investors that provide most of the equity capital, while general partners are usually responsible for managing the partnership assets and may contribute a relatively small portion of the required equity capital.

4. Following factors are considered by potential investors for structuring a joint venture.

• How much initial capital will the parties contribute and how will the parties contribute additional capital if needed in the future?
• How will the parties share in the annual cash flows to be produced from operating the property?
• How will the parties share in the cash flow received from sale of the property?
• Will some of the parties receive a preferred return? Will the preferred return be paid from annual cash flows and/or from sale?
• Will taxable income (or losses) and capital gain (or loss) be shared in the same proportion that operating cash flow to be distributed?
• Who will have control over the operation of the property and decisions involving capital improvements, approving leases to tenants, financing and possibly refinancing the property, and when to sell the property?

5. Points you as the owner of the land must keep in mind:

• Check the credentials of the developer. His past record and success in achieving targets.
• Before entering into a joint venture agreement with a builder, register your company and transfer the land on the book of this new entity. You can hold 100% of shares of this new entity or shares can be held by various promoters depending on their claim in the land. The new entity formed should ideally be registered as private limited company under the company’s law act of India.
• Now, enter a joint venture agreement with a builder’s company. Therefore, the agreement is between two companies. One providing land for the development of the project and other providing capital and expertise to develop the project.
• How do you decide on profit sharing? Well, we have defined it above. However, Recent trends in India indicates a 1/3rd – 2/3rd rule. 1/3rd of the project outflows going to the landowner and 2/3rd of the project outflows going to the real estate developer.
• As a landowner, make sure that the number of housing units or the developed area of the project is assigned to you and is clearly mentioned in the joint venture agreement. For example, in case of housing project, you should have the housing unit number, size, and floor in the joint venture agreement.
• As an example, a landowner enters into a joint venture agreement with a ABC real estate developer Pvt. Ltd. The plot of land measures 20 acres and about 600 housing units would be developed. As a thumb of rule, 200 units should be assigned to landowner and remaining 400 to the builder. For a landowner, this kind of agreement is safe and can result better returns for his/her land as opposed to the agreement wherein builder pays the 1/3rd of the cash inflows to the landowner on the sale of housing units.
• Hire a professional legal company with expertise in real estate joint agreements, and due-diligence.

Find the sample Joint Venture agreement between a landowner and the real estate developer.

Follow @sach_gupta

Have any Questions? Tweet to @sach_gupta

Selling tricks used by real estate developers and how to avoid them

Author: Sachin Gupta | Find me on Twitter Follow @sach_gupta

With the festive season around, the spirits are high. Most of us buy big-ticket items during this time of the year. The big-ticket items may vary from buying a house, car, gold, etc. It is also that time of the year in India when marketers will come up with sale offers; discount offers to lure customers in making a purchase decision.

However, buying a home is a lifelong commitment and you will be paying EMIs for several years and therefore don’t fall in the trap of these discounts, offers, schemes, etc. Instead, you should do your due diligence so that you do not repent later.

We have put together a list of 9 things that the sales executive of a real estate developer will throw at you in order to close the deal. Make sure to research all these 9 things just like this smart buyer has 

So, Are you a smart buyer???

Follow @sach_gupta

Have any Questions? Tweet to @sach_gupta

Apartment Related Compliances a Real Estate Salesman must know

Though almost every Real Estate Development company has a separate Compliance officer, to take care of various compliance, but Real Estate Salesman should also be aware of various Unit/Flat related compliance as he is the first point of contact between the company and the Customer. Since he is meeting the customer, therefore, generally the compliance officer will get the compliance completed through him and also have various documents delivered to client through him.

Hence, Real estate salesman's knowledge of compliance is very critical.

• Booking Amount: 

When he receives booking amount , client is given a code in company’s system and under that code he should ensure that Client’s file is started. A receipt should be issued to client for the Booking Amount received and that receipt contains information like Client’s Name, His Father & Mother’s Names, His Contact Address, His Permanent Address, Details of Nominee like Name, Relation and preferably Nominee’s Signatures also, Details of Payment Received: Cheque/DD No. (If Cheque/DD) or Cash, Date, Amount, Unit Number (Here he is temporarily allotted a Unit Number also).

• Booking Documents

Along with booking amount salesman must take following documents so as to complete the booking documents set:

1. Booking/Registration Form along with booking terms & conditions completely filled & signed by client.
2. Price List, with the price at which he is purchasing circled & signed by client. However, if client is buying at a price other than printed, in that case that price should be handwritten on Price List, circled & signed.
3. Payment Plan: A company may have different payment plans, so the one applicable to this deal should be attached along with & signed.

Once this is done, he is through with the booking process and move on to the next steps of the process. Here one thing very important to mention is that every payment he receives from customer should be by adding 3.50% Service Tax. And this has to be religiously deposited to government at the end of month.

• Allotment Installment

Now the 2nd installment is called the “Allotment Installment”. Here again a routine receipt for payment received in issued. But what is more important is that, at this stage Buyer-Builder Agreement is signed between client & developer. Two completely filled copies of the same should be given to client for signing. Under no condition, should it be first signed by a representative of company. Client signs both the copies, and attaches his KYC documents along with it and returns it back to company.

Then Authorized person of company signs both the sets, after which one copy goes to Client & other to his file.

P.S.: Each & Every paper entering client file should be signed by Client

• Due Payment Intimation

Whenever a customer’s payment becomes due as per the Payment Schedule he has chosen , compliance officer , may be with the assistance of his team, sends him an intimation.
After the intimation has been sent by compliance officer, salesman should follow with client as well concerned channel partner to get the payment within due time.

• Cancellation Of Booking

If the payment doesn’t come even after the passage of 90 Days (Again varies from company to company), then a cancellation letter should be sent to customer through Registered/Speed Post.
Salesman should also intimate this to client as well concerned channel partner.

• Transfer Cases

Many a times clients will like to transfer their property in someone else name. For that, salesman should have a properly worded & vetted by a Lawyer Transfer Set. This Transfer Set on a Stamp Paper of Rs. 100 should be filled & signed by both Transferor & Transferee. Both will attach their KYC documents along with & get it notarized. On submission of this, Transferor will have no rights over this property.

• Cancellation

During the process many persons will like to get the unit cancelled also due to some reason or the other. For this also salesman should have a properly worded & vetted by an advocate cancellation set. Any person willing to cancel a unit will fill it on a stamp paper of Rs. 100. Then after submission of the same, salesman should release him the payment as per company’s policy.

Cancellation will be complete once that person has refund amount in his account after which he will have no right over the said property.


This is a guest post by G S Bedi

It’s all about perception…isn’t it? And how is real estate sector in India perceived? Can the perception be changed? Let’s make it a New Year resolution :)

Author: Sachin Gupta | Find me on Twitter Follow @sach_gupta

Good bye 2013 and welcome 2014, Happy New Year to each and everyone out there. Last year was tough for realty sector in India with GDP slowing down, high inflation and interest rates, and lack of demand from end-users. Will 2014 be different? Yes, it can be. However, the perception towards real estate sector needs to change and all the participants have to do their tiny bit in bringing out the positive image for the sector.

Current perception towards real estate sector in India:
Well, what is perception? It’s nothing but how people from outside view the sector. And how do they view it? Just talk to any common man and one would get the answer. The sector is perceived to be entrenched in corruption, black money, political maneuvering, builder – politicians nexus, etc. If one were to draw a sketch of the real estate sector on people’s perception, this is how it will appear:

The perception is that builders, politicians, and bureaucrats are working for each other when it comes to realty sector. This nexus is so strong that, policies are made, tweaked to favor the rich and powerful builders. Look at what happened at Campa Cola compound in Mumbai. The project was approved in 1980s by the BMC. Builder not only constructed the towers as per the approved plan but also illegally constructed some additional floors. Now, who would believe that these illegal floors were constructed without the knowledge of BMC or some local politicians? And now citizens are facing the heat. Doesn’t the picture above clearly highlight the situation in Campa Cola Compound of Mumbai?

Let’s examine the role of each stakeholder in the real estate sector closely:

• Town planning department or the authorized government agencies:

The department is armed with civil services officials with foresight to develop the city and plan for increased urbanization. New areas are demarcated for future residential, industrial, and recreational growth within the city. The process of demarcating land, allocation it to developers, tax collection, etc. is perceived to be inefficient and corrupt. We as citizens have no idea on what basis or methodology these areas are demarcated. Real estate project approval process is so cumbersome and opaque that there is no way out but to bribe the officials to obtain project approvals on time. And therefore, what we get is increased cost of property and unorganized real estate development.

Our team members have been visiting the new upcoming areas in Delhi NCR region. Real estate development in these areas has been taking place for almost 8-9 years and all we found is ghost cities. The infrastructure including electricity, water, sewage, roads, waste management is nowhere to be seen and yet we find plethora of high-rise development of brick and mortar. Some of these developments are self-sustainable. One can imagine the cost of living in these self-sustainable townships. More importantly, what will happen to unauthorized slums in the region? How those living in slums will be rehabilitated? Or will urban class who has tasted global standards live in conjunction with slum dwellers? There seems to be no answer.

To our question of who will live in those new buildings? Many builders, brokers, and investors would respond by saying that there is such a dearth of housing in the country that customers would lap up whatever is offered to them.

• Real estate developers:

With the planning and foresight of government officials, builders would enter the fray and acquire land for residential, industrial, or recreational purposes. There is strong perception that if builders are loaded with sufficient funds, there is no way in this world that they can be stopped from developing those ghost towns. Market research, planning, and concrete data are all fancy words for builders with deep pockets. To say that there is an utmost disrespect for planning & research would again be an understatement. Promoted as world-class real estate, there is perception that quality of construction is compromised in most of the final product delivered to the customer. The builder's focus on maximizing the profit often results in squeezing of the room-sizes and cut down on the open areas.

The question to be asked is how it is sustainable for builders to develop these ghost towns. Well, when party is on, the credit is available on cheap rates and there is always this heavy component of black money entering into real estate sector. However, when credit availability becomes tight and there is supervision on black money component, things start to change. This is what seems to be happening today and there seems to be no respite for builders from huge debt levels, customers’ lack of interest, and high rate of credit availability.

Will the bubble burst? Well, as long as entering of black money into the sector is not prohibited or controlled, this can continue although at slower pace than what we witnessed during 2003-2007.

• Media:

No one can deny the positive role of media in today’s times. However, there are occasions when media is perceived to be doing the services for politicians – builder’s nexus. As soon as the builders announce their 'world-class' projects with fancy western names, the media related to real estate development will go gung-ho about new development in the city and how it will shape the future of the city. Glorifying articles with questionable data related to infrastructure development will be published which forces customers/investors in believing about the merits of investing in these new ghost towns. Articles about roads, connectivity, metro projects, and industrial development will be published on a daily basis to lure people to invest in these new cities where no one lives for years before people actually start to move in. That movement of people however can take upward of 10 years is another matter. Maybe that’s the foresight of government officials or builders who don’t mind delaying the project since everything is in their favor and customers are at their mercy.

Case in point is the Noida extension fiasco in 2011-12, and promotion of upcoming airport on Yamuna expressway which was eventually canceled, etc.

• Investors:

Investors with unreported cash or income are the first ones to invest in these ghost towns. Where else can they park this hard earned money of theirs but for the real estate sector? What happens is the money which should have gone to the government in form of taxes would now sit in these ghost towns. The government with right intentions could have developed the necessary infrastructure with tax revenues which could have led to an organized economic growth in the region. But those are fairy tale stories and happen only in utopian societies.

• End users:

End users with modest income who have been sitting on the fence for all those years finally give in. They start buying for homes from investors in secondary market involving white and black transaction. Why white and black transaction? Well, to save on ridiculously high stamp duty and registration charges. And they just hope that situations like Campa Cola do not happen to them.

So, this is all about the existing perception. Can the perception be changed?

Yes, after all, we are all part of one common society and there is contribution from each one of us.


What can the Town Planning department or government agencies do to change the current perception?

1. There is already an effort being made by the government in bringing the real estate regulatory act. Although a small step, but this is a welcome step.
2. Land allocation process should be made transparent by auction mechanism or whatever the best possible alternative is.
3. Upcoming infrastructure in the city should be presented in the public domain credibly so that everyone has the information about the city development and therefore can participate in the process of real estate investment. The idea is to curb insider information practices wherein some investors connected to the policy makers make windfall profits and rest languish.
4. Project approval processes should be streamlined and made transparent. There is a wider belief among experts that by doing so, real estate costs can come down by whopping 20%.
5. Construction laws should be looked and analyzed on regular basis to improve the city development and curb illegal construction practices.

What can builders to change the current perception?

• Sell projects only when all the approvals have been obtained
• Clear distinction between carpet area and saleable area
• Clear deadline for project completion
• Third party supervision of construction quality

What can media do to change the current perception?

• Continue to report facts accurately about city development and upcoming infrastructure.
• Highlight the wrong practices by any of the participants in realty sector.

What can end-users do to change the current perception?

• Be an extrovert buyer. Ask questions before buying in a particular project
• Make payments in cheque and pay the taxes accurately.
• Thorough due-diligence
• Coming together with other buyers and forming a group

There is no denying that perception reflects reality. Even a single step of correction can go a long way in changing the reality of realty sector and change the current perception.

Cheers

Follow @sach_gupta

Have any Questions? Tweet to @sach_gupta