Acquisition and Transfer of Immovable Property outside India

The establishment of a new property interest and its transfer from one person to another have little in common conceptually. The first theme is related to numerous hypotheses regarding the creation of property and concerns the initial distribution of resources. The second topic is on the more ordinary realm of legal transactions. In practise, though, the two themes are intertwined. There are very few tangible objects nowadays that do not have an owner. As a result, the extinction of another title, whether owned by another private owner or by the state, is frequently required for the creation of an original title.

According to the provisions of the Act and the Foreign Exchange Management (Acquisition and Transfer of Immovable Property Outside India) Regulations, 2015 and the Foreign Exchange Management (Acquisition and Transfer of Immovable Property in India) Regulations, 2000, an Indian resident and/or non-resident Indian can acquire immovable property in India and/or outside India.

A person resident in India can hold, own, transfer, or invest in any immovable property located outside India if the property was acquired, held, or owned by him or her while he or she was a resident outside India or inherited from a person resident outside India, according to section 6(4) of the FEMA.

Under the Liberalised Remittance Scheme (LRS), a resident individual can transfer remittances to buy immovable property outside of India. If members of a family pool their remittances to buy a home, the home should be registered in the names of all family members who made the remittances.

The prohibition on a resident obtaining property outside of India does not apply if the following conditions are met:

1.The resident is a non-US citizen; or

2. The property was purchased before to July 8, 1947 and was kept after gaining authorization; or

3. If it’s leased for less than five years, it’s a good deal.

Property can be purchased outside of India:

  1. Section 6(4) of the FEMA Act.

2. As an inheritance or gift from a person I described in section 6(4) of the FEMA; or (ii) who acquired it prior to July 8, 1947, in compliance with the foreign exchange laws in effect at the time of acquisition.

3. Purchased with funds from the resident’s Resident Foreign Currency (RFC) account.

4. If he is a relative of the people listed in (2) and (3), he may get a present from them.

5. Purchased with the Liberalised Remittance Scheme’s remittances (LRS).

6. If there is no outflow of funds from India, you can do it with a relative.

7. By an Indian firm with overseas branches for the purpose of hosting its business or workers.

Expropriation, prescription, and adverse possession are all methods of acquiring property.

The concepts of adverse possession and prescription, which are connected, are explored earlier in this section. The two notions have a number of possible rules. For example, one could argue that the expiration of the statute of limitations just bans the action, but not the right to sue (limitation of actions, strictly speaking). Alternatively, one could argue that the expiration of the statutory term prohibits both the action and the right, but does not provide the adverse possessor any new rights (extinctive prescription). Or, to put it another way, the opposing possessor, or the one who has met the prescription criteria, obtains the title of the one whose title has expired (acquisitive prescription, strictly speaking). The most extreme position is that, after the rights of the original owner have been extinguished, the person who has prescribed or negatively possessed against those rights has a new original title. At the very least, this means that the new owner will be able to justify his ownership without having to show how the prior owner obtained his. It could also imply that he is not bound by any limits imposed by the original owner. The use of eminent domain usually leads in the sovereign receiving a new title.

Subsequent Acquisition

If a private individual has a property right, privilege, or power, it may be queried if such right, power, or privilege can be transferred to another person. In Western law, the conventional presumption is that it can be. The twin foundations of a market economy are freedom of contract and freedom of alienation of property (i.e., the rights to enter freely into enforceable contracts on terms agreed to by the parties and to transfer property to whomever the owner wishes, on terms of his choosing). Despite the challenges associated with extensive regulation and socialisation of the Western market economies, the basic principle regarding the transfer of property has remained unimpaired. Non-Western economics and legal systems have less freedom of alienation than Western economies and legal systems. Even Nevertheless, these mechanisms allow for estrangement in a wide range of situations.

Aishwarya Says:

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