Aug 17,2019 | 15 min read

Transfer of Ownership law and its Legal Definition

Author - Associate Sanjani Shah 

Ownership is a complex legal concept that has its beginning in ancient Roman law. In Roman law, ownership and possession were entitled as “dominium’ and ‘possessio’. The designated dominium denotes complete right to a thing while possessio hunted only physical control over it. Roman gave more significance to ownership because, in their judgment, it is more significant to have absolute right over a thing than to have physical control over it.


The concept of ownership evolved much later than possession in English law. The earlier law gave importance to possession includes within its ownership as well.


The idea of ownership is made up of several claims such as liberty, power, and immunity concerning the thing owned. Ownership is thus a sum-total of possession, disposition, and destruction which incorporates the right to enjoy property by the owner. The owner has to adhere to the rules and regulations of the country.


Ownership means a person has an equitable right over the property and owns it. An owner or possessor will have the right of precedence, right to transfer it and the right to lease the property.


The magistrate has defined ownership in distinct ways. Everybody accepts the right of ownership as the complete right that can be exercised over anything.  According to Hibbert, ownership comprises of the four kinds of rights:

1) Right to utilize a thing,

2) Right to debar others from using things,

3) Right to abandon the things,

4) Right to demolish it


Ownership means the complete and comprehensive right of authority over property. It has been said that ownership is either easy as pie to need no clarification or so evasive as to challenge definition. At its most utmost and complete, it means the power to relish and dispose of things altogether. Practically in almost every society, the powers are limited by the general law. Since it is possible to undermine legal systems for a possessor to grant rights over a property, it may be that the possessor will be unable to use his property. Thus ownership is often considered to be the conclusive remaining right that remains after all other rights over a thing have been quenched.


A proprietor can transfer his property by gifting or selling it. A sale legal document, or any deed through which the ownership rights are transferred, is a document that gives verification of an individual’s proprietorship of a property. Rights in property can be transmitted only on the execution and registration of a sale agreement in approbation of the buyer. A transferable agreement is executed to transfer the title from one owner to another owner. Mostly, an owner can transfer his ownership unless there is a legal restriction.


If the proprietor gives another individual or person a power of attorney (POA), that individual or person can sell it under this authority. A Power Of Attorney (POA) gives another individual or person the power to act on behalf of the proprietor. Nevertheless, if POA only grants a person the authority to manage the property, the person cannot sell it.


Agreement to sell precedes implementation of a sale agreement. The sale agreement is based on the agreement to sell. The deed is signed and accomplish by the seller and buyer on a non-judicial stamp paper. It has legal value and can be generated as evidence. The conveyance agreement is drafted on the base document of the agreement to sell. Every legal paper of the transfer of property by way of sale would be preceded by a legal deed to sell.


Any document indicating the transfer of property must be registered. The sale agreement and other applicable documents need to be stamped and registered at the sub registrar’s office having authority over the property. The reason for registration is to stop fraud and provide security. 


Once acquired, the property should be transmuted in the name of the purchaser. Transmutation is not a legal title given to the new possessor. It essentially means redraft in the records of the municipal authorities (in case of metropolitan properties) and local revenue officers (in case of other properties); reestablish the name of the owner with that of the new purchaser. The new purchaser, under whose name the title and other rights pass on, must apply to the local authorities for transmuted.


Transmuted property is documented on the furnishing documents showing evidence of the transfer of property. Transmutation of property in the municipal or revenue records is mostly for the purpose of payment of property taxes.


In short, transfer of ownership is the course, by which, the ownership of a property is conveyed from one hand to another. This incorporates the purchase of a property, presumption of mortgage debt, exchange of proprietorship of a property or any other land trust device.

 


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