Legal Terms That Landlords And Homebuyers Should Know

We now have a legislation in place that promises to protect property buyers in case anything goes wrong — yes, we are referring to the Real Estate (Regulation & Development) Act, 2016. However, it would still be the best policy to be careful in matters related to the property. Prevention is any day better than cure, do you not agree? One way to ensure you do not have to knock at the doors of the law is to familiarise yourself with some legal terms.

Here is a look at certain legal maxims, the knowledge of which is a must for all of us in general, and landlords and homebuyers in particular.

Stay alert: Abundans cautela non nacet

First things first ─ at a certain juncture, if you started to think that doing things with a suspicious mind was not really fair, nip that thought in the bud. The law is of the view that there is no harm in being cautious, the literal meaning of the Latin phrase, abundans cautela non nacet. Even rules made by Parliament are not to be taken as sacrosanct, and states in India have the right to interpret them and point out faults, in case there are any. Excess of anything may be bad, but in matters of property, an excess of caution is preferable.

Act of God: Actus dei nemini facit injuriam

The knowledge of the Latin phrase, actus dei nemini facit injuriam ─ which can be translated as the act of God prejudices no one in English ─ is important for each one of us, especially if you are a homebuyer.

Almost all builder-buyer contracts have a force majeure clause which is based on the act-of-God-prejudices-no-one doctrine. Using this clause, a developer may delay delivery of his project, citing unexpected circumstances that prevented him from doing something that is written in a contract. Basically, the law does not hold a man to a legal duty where he is prevented from performing it by an act of God.

Also read: 'Act of God' Causing Construction Delays? How To Avoid It

An act of God is an event that takes place independently of human intervention. These may include storms, earthquakes, tsunamis, etc. However, this rule is not applicable to a mere “inevitable accident”. In case human intervention may have stopped something wrong from happening, the erring party will be responsible for paying damages, as has been reiterated by the Supreme Court on several occasions.

Worth it: ad valorem

Rates of taxes on goods and services are based on either the quantity or the quality. The tax you pay on your petrol purchase is of the first kind; the taxes you pay on property purchases are of the latter sort, also known as ad velorem. The terms could be translated into English as according to value. Stamp duty you pay on your house purchase, for instance, is ad valorem.

Ground reality: aedificatum solo, solo cedit

The meaning of the phrase is, what is built on the land is to be regarded as having become part of the land. However, the Indian law does not agree with that entire import. According to the local law, land can belong to one party and the structure built on it to another. 

At will: ambulatoria est voluntas defuncti usque ad vitae supremum exitum

The law says that a person can change his will as many times as he wants to in his lifetime. The literal meaning of the Latin phrase is that the will of a deceased person is ambulatory until the latest moment of life.

Taking charge: ab intestato

When a person dies without leaving behind a will (such a person is known as intestate), his property is divided among his legal heirs according to the prevalent laws of the land. The meaning of the term ab intestato is “from an intestate”.

Let it go: alienatio rei prefertur juri accrescendi

Do be mindful of the fact that the law favours alienation rather than the accumulation of property. That would be the guiding principle when courts pass judgements in matters related to property hoarding.

Prove it: affirmanti non neganti incumbit probatio

According to the law, the burden of proving the fact lies upon him who affirms, not upon him who denies, the meaning of the maxim, affirmanti non neganti incumbit probation. So, in case you take a developer to the court and he denies the charges as mere allegations, the responsibility to prove them as facts lies with you.

The sense of belonging: adversus extraneous vitiosa possessio prodesse solet

According to the Indian law, an imperfect possession is accustomed to prevailing as against outsiders claiming adversely ─ adversus extraneous vitiosa possessio prodesse solet. In case someone is occupying someone else's property for a long time without the right over raising the issue, the squatter's “imperfect” right over the property will likely prevail.

Also read: SC Ruling To Make Adverse Possession Tougher

On the same page: ad idem

It is only after two parties in a transaction are of the same mind, ad idem, that a contract is made. However, to make a contract, both the parties should have equal bargaining power. There cannot be a contract between a powerful and a weak party as it may amount to one pressuring the other.

Stating the obvious: affidavit

An affidavit is a sworn statement in writing, made by an authority. A homebuyer has to sign so many of them to complete the process. However, before you jump to sign the papers and finish things off, do note that you will be held to the declarations you make in an affidavit. So, never be in a hurry to sign, read the documents utmost case. Also, the person administering the oath is equally responsible for fact-checking.