:: Samruddhi Group ::

Investments by NRIs and OCBs are allowed, both, through the RBI route and also through the Government route, i.e., through the Foreign Investment Promotion Board (FIPB).
NRIs and OCBs are permitted to invest up to 100% equity in real estate development activity and civil aviation sectors.
Investment, made by the NRIs and OCBs, are fully repatriable, except in the case of real estate, which has a 3 year lock-in period on original investment and, 16% cap on dividend repatriation.
For those proposals that do not qualify under the automatic route, Government approval is granted through FIPB.

Q5: How should purchase considerations for the residential immovable property be paid by foreign citizens of Indian origin under the general permission?

Ans: The purchase consideration should be met either out of inward remittances in foreign exchange through normal banking channels or out of funds from NRE/FCNR accounts maintained with banks in India.

Q6: Is there a limit to the number of investment in acquiring commercial properties in India?

Ans: No, as far as quantity of NRI investment is concerned in real estate investment in India there is no limit on the number of investments can be made in commercial properties in India.

Q7: Can a person of Indian origin acquire any immovable property in India by way of inheritance?

Ans: A person of Indian origin, resident outside India, may acquire any immovable property in India by way of inheritance from a person, resident outside India, who had acquired such property in accordance with the provisions of foreign exchange law in force at the time of acquisition by him or the provisions of Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2000. Immovable property, by way of inheritance, can also be acquired by a person of Indian origin resident outside from a person resident in India.

Q8: Are NRIs permitted to send remittances outside India out of the assets in India that are inherited by them?

Ans: Yes. RBI will consider application from NRIs for remittance of assets, inherited by them in India. Such remittance may be permitted up to US$ 100,000 per year.

Q9: What is the approved method of sending remittances into India?

Ans: The approved method of sending remittances into India is through normal banking channels.

Q10: At what rates are remittances in foreign currencies made by NRIs converted by banks into rupees?

Ans: Such remittances will be converted by banks at the market rate of exchange.

Q11: What is Foreign Exchange Management Act (FEMA)?

Ans: Residential status and nature of transaction i.e. capital account transaction (e.g. purchase/ sale of shares, property) or current account transaction (e.g. remittance of income on shares, property) are the cornerstones of FEMA. Under FEMA, certain types of transactions do not require RBI permission while others either require prior approval of RBI/ Government or it is mandatory to inform RBI of the same.

Q12: Can a person of Indian origin resident outside India gift properties acquired earlier in terms of the provisions of FERA/FEMA?

Ans: Yes. A person of Indian origin resident outside India may transfer residential or commercial property in India by way of gift to a person resident in India or to a person resident outside India who is a citizen of India or to a person of Indian origin resident outside India. A Person of Indian origin resident outside India may also transfer by way of gift agriculture land/farm house/plantationproperty in India to a person resident in India who is a citizen of India.

Q13: What is meant by valuation of property?

Ans: The valuation process evaluates the market value of the property. Demand and supply forces operating in the market, as well as other factors like type of property, quality of construction, its location, the local infrastructure available, maintenance, are all taken into consideration before the market value is decided.

Q14: How does property valuation help?

Ans: Typically, if a real estate agent is asked to judge the value of a piece of property, he would do so based on information of recent sales or purchases of similar properties in that area.

Though this may give a fair idea of the property's market value, an official property valuation would carry more weight. E.g. if you need to use this piece of property as a security against a loan, the bank's loan approval process would be faster and smoother if the property is certified by an official valuer. Many banks now insist on valuation certificates before issuing loans using properties as security. The value thus certified may also have chances of getting a higher amount of loan sanctioned.

Another benefit of official valuation is that it is a useful negotiating tool when selling the property.

Such certification also becomes essential in situations where the correct value of the property has a legal bearing-such as, a will statement, insurance papers, business balance sheets etc.

Q15: What is the meaning of a property's market value? How is its stamp duty decided?

Ans: The price that a property can command in the open market is known as its market value. Stamp duty is based on the market value or the agreement value of the property, whichever is greater.

Q16: What does the term 'Leasehold Property' mean?

Ans: When a piece of property is given or 'leased' to an individual (known as the 'Lessee') for a stipulated period of time, by the owner of the property (known as the 'Lessor'), the property is referred to as Leasehold Property. A certain amount is fixed by the Lessor to be paid as lease premium and annual lease. The land ownership rights remain with the Lessor. Transfer of property requires prior permission.

Q17: What does the term 'Freehold Property' mean?

Ans: When ownership rights for a piece of property are given to the purchaser for a price, that property is referred to as Freehold Property. Unlike in the case of leasehold property, no annual lease charges need to be paid and the freehold property can be registered and / or transferred in part(s).

Q18: Are there any benefits in converting a leasehold property to a freehold one?

Ans: There are several benefits: if you convert the property to a freehold property, you become a full-fledged owner by getting the sale deed and having it registered. A freehold property has better marketability and can be sold, mortgaged or kept for standing security, which cannot be done with leasehold property.

Q19: Are there any income tax considerations while transferring newly acquired property?

Ans: If the transfer takes place within three years of purchase, the income tax exemption under Section 54F of the Income Tax Act does not hold good.

Q20: What constitutes conclusion of sale of a property?

Ans: An agreement of sale, coupled with actual possession of the property would be considered as a conclusion of the sale. Usually, the entire amount is paid at the time of handing over possession.

Q21: What is the difference between carpet area, built-up and super built-up area?

Ans: The area of an apartment or building, not inclusive of the area of the walls is known as carpet area. This is the area that is actually used and in which a carpet can be laid. When the area of the walls including the balcony is calculated along with the carpet area, it is known as built-up area. The built-up area along with the area under common spaces like lobby, lifts, stairs, garden and swimming pool is called super built-up area.

Q22: When there are apartments of different sizes in a complex, how is the maintenance charge calculated?

Ans: Legally, the actual area owned by the individual is the basis for calculation of maintenance charge.

Q23: Why do Co-operative Housing Societies collect a Sinking Fund?

Ans: Co-operative Housing Societies have a statutory obligation to collect a Sinking Fund. This is done so that in case the building needs to be repaired or reconstructed in the future, the society has sufficient funds to carry out the work. The amount to be contributed is decided by the General Body of the society; it should be at least ¼ percent per annum of the cost of each apartment, excluding the cost of the land. This fund may be used after a resolution is passed at the General Body meeting with the prior permission of the Registering Authority. This could be to carry out reconstruction, repairs, structural additions or alterations to the building as the architect thinks is required and certifies.

Q24: How is a lease agreement created?

Ans: A lease agreement can be reached in either of two ways, depending upon each case:

In cases where the lease contract is from year-to-year / exceeding one year's rent / reserving yearly rent, then a registered instrument can be created, which both the lessor and the lessee must execute.
In cases other than the above, an oral agreement followed by delivery of possession is considered enough.

Q25: What are the charges to be paid while gifting property?

Ans: When a gift of property is made, a gift deed needs to be made by a lawyer. Stamp duty on the market value of the property also needs to be paid, as well as the necessary registration charges.

Q26: Can corporate bodies use residential properties as office space?

Ans: It is illegal to put residential properties to commercial use. However service-based industries are allowed to operate from residential areas, on the condition that they will vacate the property if any complaint is received from other residential owners.

Q27: Before purchasing property owned by a company, what aspects should be considered?

Ans: Before purchasing property from a company, it is necessary to verify with the Registrar of Companies that the property is not mortgaged or is not being used as a security against a loan, otherwise it is not considered a freehold property.

Q28: Do NRI's require permission of Reserve Bank to acquire immovable property in India?

Ans: No. NRI's do not require any permission to acquire any immovable property in India other than agricultural / plantation property or a farm house.

Q29: Do NRI's require permission of Reserve Bank to transfer immovable property in India?

Ans: No. NRI's do not require any permission to transfer any immovable property in India. Permission is required only in the case of transfering of agricultural or plantation property or farm house to another citizen of India NRI or PIO.

Q30: Do PIO's require permission of Reserve Bank to purchase immovable property in India for their residential use?

Ans: Reserve Bank has granted general permission to foreign citizens of Indian origin, whether resident in India or abroad, to purchase immovable property other than agricultural land/farm house/plantation property, in India. They are, therefore, not required to obtain separate permission of Reserve Bank or file any declaration.

Q31: In what manner should the purchase consideration for the immovable property be paid by PIO's under the general permission?

Ans: The purchase consideration should be met either out of inward remittances in foreign exchange through normal banking channels or out of funds from any non-resident accounts maintained with banks in India.

Q32: Can such property be sold without the permission of Reserve Bank?

Ans: Yes. Reserve Bank has granted general permission for sale of such property. However, where another foreign citizen of Indian origin purchases the property, funds towards the purchase consideration should either be remitted to India or paid out of balances in non-resident accounts maintained with banks in India.

Q33: Can sale proceeds of such property if and when sold be remitted out of India?

Ans: In the event of sale of immovable property other than agricultural land/farm house/plantation property in India by a NRI or PIO, the authorised dealer may allow repatriation of the sale proceeds outside India, provided all the following conditions are satisfied: -

The immovable property was acquired by the seller in accordance with the provisions of the Exchange Control Rules/Regulations/Law in force at the time of acquisition, or the provisions of the Regulations framed under the Foreign Exchange Management Act, 1999;
The amount to be repatriated does not exceed (a) the amount paid for acquisition of the immovable property in foreign exchange received through normal banking channels or out of funds held in foreign currency non-resident account or (b) the foreign currency equivalent, as on the date of payment, of the amount paid where such payment was made from the funds held in non-resident external account for acquisition of the property; and
In case of residential property, the repatriation of sale proceeds is restricted to not more than two such properties.

Q34: What other facilities are available for repatriation?

Ans: Authorised dealers can allow remittance up to USD 1 million for any purpose, per calendar year from balances in NRO accounts subject to payment of applicable taxes. The limit of USD 1 million per year includes sale proceeds of immovable properties acquired by the NRI/PIO's while they were resident in India and held for a period of 10 years and above. In case the property is sold after being held for less than 10 years, remittance can be made if the sale proceeds were held for the balance period in NRO account or in any other eligible instruments.

Q35: Can PIO's acquire or dispose of immovable property by way of gift?

Ans: Yes. Reserve Bank has granted general permission to foreign citizens of Indian origin to acquire or dispose of immovable properties other than agricultural land/farmhouse/plantation property by way of gift from or to an Indian citizen, NRI or PIO.

Q36: Can NRI's/PIO's rent out the properties (residential/commercial) if not required for immediate use?

Ans: Yes. Reserve Bank has granted general permission for letting out any immovable property in India. The rental income or proceeds of any investment of such income is eligible for repatriation

Q37: Can NRIs obtain loans for acquisition of a house/flat for residential purpose from financial institutions providing housing finance?

Ans: Reserve Bank has granted general permission to certain financial institutions providing housing finance e.g. HDFC, LIC Housing Finance Ltd., etc., to grant housing loans to NRI's for acquisition of a house/flat for self-occupation subject to certain conditions. The purpose of loan margin money and the quantum of loan will be at par with those applicable to housing loans to residents. Repayment of loan should be made within a period not exceeding 15 years out of inward remittances or out of funds held in the investor's NRE/FCNR/NRO Accounts.

Q38: Can authorised dealers grant loans to NRIs for acquisition of a flat/house for residential purposes?

Ans: Authorised dealers have been granted permission to grant loans to NRI's for acquisition of house/flat for self-occupation on their return to India subject to certain conditions. Repayment of the loan should be made within a period not exceeding 15 years out of inward remittance through banking channels or out of funds held in the investors' NRE/FCNR/NRO accounts.

Q39: Can authorised dealers grant housing loan to NRI's where he is a principal borrower with his resident close relative as a co-applicant / guarantor or where the land is owned jointly by such NRI borrower with his resident close relative?

Ans: Yes. Such housing loans availed in rupees can also be repaid by the close relatives in India of the borrower.

Q40: What are the guidelines for acquisition of agricultural land / plantation property / farmhouse by NRIs and foreign citizens of Indian origin?

Ans: All requests for acquisition of agricultural land / plantation property / farm house by any person resident outside India may be made to The Chief General Manager, Reserve Bank of India, Central Office, Exchange Control Department, Foreign Investment Division (III), Mumbai 400 001.

For further information please visit the FAQ Section ofhttp://www.rbi.org.in