Agreement Clause Issues

[Kumar Gaurav]

Hi All,

Please find link to an excel. This excel contains Details of Buyers and issues they could find out in the clause of the agreement.

Please fill it. We will collate and draft a letter.

https://docs.google.com/spreadsheets/d/1M4zyEf01SmMm3JDS7ieCJgOMnsJqsQTIne95bZ13bxc/edit?usp=sharing

[Vipul]

Hi all

These is what response i got from arvind. They are not ready to change even one clause.

Regards

Vipul

Dear Mr. Vipul Parmar, 

We have a standard format of agreement, which has been approved by our legal team and other respective departments.  We regret to inform you that we will not be able to make any changes in the draft.  Please find below our response to your concerns:

-        We will be providing the covered car park for your apartment, however, the agreement will mention 1 car park only, as it is a standard draft for all our members.  

-        We will not be able to make any changes in the same. Approval shall be on case to case basis and as per the discretion of the management.  

-        As of now, there are no betterment charges payable.  However, if it becomes applicable in near future, then the same needs to be paid by the member only.

-        We will let you know well in advance for registration.  If there is a genuine reason for delay, management will provide the grace period as per its discretion.  

-        Any major changes/deviations shall be informed to the members.

-        The clause refers to force majeure conditions, which cannot be predicted. In any case, the developer will always try and complete the project, as it involves a huge investment from his end also.

-        The clause is as per the general market practise only and as per our company’s standard policy.  We will not be able to make any changes in the same.

-        If there is any variation in the area, the amount will accordingly be adjusted at the time of execution of final sale deed.

-        The amenities/facilities are mentioned in the brochure for your reference.  We will not be able to incorporate the same in the agreement.

-        Regarding the OC, it will also require the editing of draft, which will not be possible. However, please be assured that we have been following and will follow all the necessary government guidelines and procedures required for our schemes.

-        The possession of the apartment shall be given starting from December-2017. The March-2018 is the completion date in all aspects.  The grace period has, therefore, been kept from March-2018.

-        The clause is as per the general market practise only and as per our company’s standard policy.  We will not be able to make any changes in the same.

-        The undivided share of land shall be mentioned once the hard copy of agreement is received by us.  It will be mentioned in the blank space left in Clause E and Schedule B manually. You will need to put your initial signature against the clause beforehand and our authorized signatory will manually enter the same and cross sign it.  The undivided land area for your flat is 229 sq. ft.

-        We are only mentioning the saleable area in the agreement.

Regards, 
Jyotsna 



From:        Vipul Parmar <vipulpar...@gmail.com> 
To:       
Date:        09/03/2015 13:39 
Subject:        Re: Updated Agreement of A-503 

---

Hi Deep 

I have following clauses to be modified in ATS. Please let me know on this. 

Sections
2	Covered Car parking is not mentioned in the agreement. Only car parking is mentioned
5.2	Agreement clause states that, purchaser is not supposed to install any additional AC units/points. Since Additional points can be installed with prior approval of developer, kindly change the clause accordingly.
5.9	It states that we need to pay betterment charges to BBMP in future if applicable. Since we have invested in this project knowing this is an "A Khata" property there is no need to mention this clause in the agreement.  But if there is any ambiguity regarding "KHATA", it should be known to us.
5.10	Grace period for registration It should be mentioned in the agreement that for genuine reasons such as - Buyer may be based out of India etc. grace period can be extended beased on management decision.
6.1	Change in Specifications If there is any change in the amenities or fixtures because of requirement form architect or engineers, Buyer should be informed in advance
9	Please mention specific Conditions like "Force Majure" under which the project will get cancelled
11.2	Breach of contract : Termination Agreement states termination if breach of contract by buyer. It should also mention the same about Developer
15.2	Variation in SBA Agreement should mention that if there is a variation of 5% or more in SBA, the cost will be adjusted according(up or down).
	Amenities Specific amenities to be provided is not mentioned in the agreement. How do we make sure that whatever amenities was advertised, will be provided if it is not mentioned in the agreement
	Occupancy Certificate There is no mention of the OC in the agreement.
3.2	Project completion date During pre-launch offer,Builder informed that project will be completed in 3 years time(i.e. June -2017). As per agreement its now on March-2018 with 6 months grace period.  It means project will be completed by Sept-2018 considering current status of construction. As I booked it during pre-launch offer(i.e. between Feb-14 to June-14) will have to wait for nearly 4.5 years which is unacceptable. Hence for me project completion date must be kept as June-17 and change penalty applicable date accordingly.
3.3	Delay from both side Penalty clause is biased to builder. 3rs/sqrt from builder side which is very less compared to standards followed by other well-known builders. It should be 8rs/sqrt. If builder is not agreeing to reduce it than penalty from buyer side must be reduced from 16% to 10%
	There is no mention of Undivided share for our unit in the agreement
	No carpet area mentioned in the agreement

Regards 
Vipul Parmar

[Sravan Palem]

Hi all,

This is the response i got to my queries. It is time we bring pressure on builder to modify the clauses. It is not their company policy but the sale agreement hence it has to be agreeable to all. I want to request Arvind Infra on behalf of our group to arrange for a meeting to sort out the issues.

Please clarify some issues in the Draft Agreement you have sent. 
1. What is the undivided share of land I get for my Flat C-104? 

A) The undivided land area for your flat is 308 sq. ft.  It will be mentioned in the blank space left in Clause E and Schedule B manually. You will need to put your initial signature against the clause beforehand and our authorized signatory will manually enter the same and cross sign it. 

2. Detailed Annexure-I required. Kindly mail it. 

A) The Annexure I mentions the tentative dates of payment schedule for your apartment cost.  The same is also reflected on your online portal.  If you still require the same separately in mail, kindly let us know.  We will send it across to you. 

3. CLAUSE 3.2: 
    I was promised possession of  my flat by Aug 2017 at the time of Booking but as per your clause it states March 2018 + six months grace time i.e., September 2018 which is more than a year's delay from what is  promised. 
Stick to your Original Timelines and Change the date to Aug 2017 + grace period. 

A) The possession of the apartment shall be given starting from December-2017 only. The March-2018 is the completion date in all aspects.  The grace period has, therefore, been kept from March-2018. 

4. CLAUSE 3.3: 
    You have already missed your deadline and you want to compensate it with Rs 3/Sft which is far below market standards. By completion of your RCC structure I would have paid 92% of my total flat cost and would be paying Rs. 40,000 towards my EMI and you pay me Rs. 3000 for the delay caused by you. Even small builders pay Rs 10000 and big builders like Prestige pay 9% pa of the amount paid. But you want to penalize the purchaser more than market standards at 16%pa in case of delay in payments. So make it at par with market standards. 

A) This is standard draft approved by our legal team and we will not be able to make any changes in the same. 

 5. CLAUSE 5.10: 

     On possession you are liable to get only 4%, in case of delay in taking over how do you justify a penalty of Rs 10000? For an NRI to make travel arrangements in such short notice is difficult. 

A) The agreement has been drafted by our legal team taking care of various aspects and also as per the prevalent real estate market practices. The draft is standard for all our members and we cannot make any changes in the same. 
        You will be given an advance notice period for completion of sale deed formalities and possession. If there is a genuine reason for delay from customer’s end, management will consider the same on case to case basis and provide the grace period as per its discretion. 

6. CLAUSE 7.3: 
      I was promised complete project altogether which includes club house and other amenities also, when not completed at time of possession of my flat you are also liable to pay the penalty like in clause above. 

A)  We will be handing over the project complete in all aspects by March, 2018.  There is a penalty after the grace period as mentioned in the agreement. 

 7. CLAUSE 9: 

     Explain Last line - "Developer shall refund the Purchaser, the amounts paid by Purchaser, without any interest, damage or compensation whatsoever after adjusting irrecoverable expenses incurred by Developer" Do you mean to say at times of turmoil only purchaser shall bear ALL the loss? 

A) The clause refers to force majeure conditions, which cannot be predicted. In any case, the developer will always try and complete the project, as it involves a huge investment from their end also. 
 8. ANNEXURE-II 

  Flooring in Living, Bed rooms, Kitchen shall be Vitrified Tiles only please remove Ceramic Tiles. Vitrified Tiles and Ceramic Tiles are not equivalent. They are two different materials where in Ceramic Tiles are of inferior type. 
  Explain MANUFACTURED TILES? 
A) We will not be able to make any changes in the specifications or agreement.  Regarding the manufactured tiles, we will revert on the same soon.

 9. ANNEXURE-III 

   Explain CLAUSE 6.04? 

A) The purchaser shall install air conditioners at the places fixed and approved by developer. 
        

[Sravan Palem]

Hi all,

The contractor is not on board yet. There is no Project Management Consultant to monitor quality or timely completion of project. This project is already delayed and bound to get delayed by 1 year, hence we shall fight to change the completion date and penalty clause Prestige is paying 9% p.a as penalty . This is an sale agreement and should be agreeable to both parties. Regarding specifications how can we accept ceramic tiles. when mentioned in the agreement he will use them as they are cheaper in rate. If he is so specific about AC then let him provide AC points in all bedrooms and Living rooms. So if we can ask for a meeting with their management we can ask these questions. 

1. Change of Completion date

2.Change of penalty clause and include completion of amenities in it

3. Flooring should be Vitrified Tiles only.

4.Provision of AC points in all rooms

5.Inclusion of Covered Car Park and all Amenities mentioned in brochure in the Annexure of the Agreeemnet

   I hope atleast buyers residing in Bangalore can plan and ask for a meeting with Arvind Infra

Thanks & Regards

Sravan Palem

9449874466

[Arvind_Sporcia_ Bangalore_Buyers_Group]

Thank you that you have highlighted the Agreement clause issues and we should take these points with management.
I request each person to send mail to management person and build pressure to update the clause in our favour.
if everybody should push because builders impose one sided condition on buyers. we should fight for our right.

Action plan:

every body raise 5 points raised by Sarvan to Management through email and phone calls.

do not sign agreement till they do not change the agreement and hold on future payments.

Together we Can but not alone.

Regards,
Sporcia Buyers Group.

[Sravan Palem]

Dear All please find the response of Arvind team to my queries and my responses to them

2. Annexure-1 is not just payment schedule but it also should contain cost break up and other charges levied as per Clause 1.2. so kindly mail me the draft.

Arvind's reply: Deep will mail you the payment schedule by tomorrow.  Please note that the break up does not include the service tax or other government levies, stamp duty and registration charges.   

My response: I did not receive it

3. Clause 3.2: I was promised completion by August 2017 in all aspects how can you push it to March 2018 + Grace period. You have delayed the project by seven months by not finalising the Contractor. You don't even engage Project Management Consultant to Monitor Quality and Progress and just say we'll start handing over from December 2017. In that case you modify the date to December 2017, at the end of the day Agreement speaks not your mails. 
Arvind's reply: We will not be able to make any modifications in the agreement.  We have an internal quality monitor team, who is already taking care of the quality matters for our projects, including our project, Expansia, in Bangalore.

My response: Clause 3.2: If you can’t make changes who shall be held responsible for the delay. Who shall bear the Loss for the delay?

 

4.Clause 3.3: An agreement needs to be approved by both the Parties and not just Builder and his lawyers. Make it at par with market standards.
Arvind's reply: The agreement been drafted considering the general market practices only and as per our company’s policies. 

My response: Clause 3.3: Your company policies are meant for your company employees not for your customers. You have delayed the project, pushed the Completion date and offering peanuts in the name of penalty. I do not accept in fact no buyer will accept. I know you have received the same response from all the buyers and you replied them the same way. We all feel being cheated after paying you  instalments in time and sitting ducks for more than 1 year. It is better you arrange a meeting so that we buyers will come and discuss the issue with your management.

6. Clause 7.3: Then include Club house and other common amenities in Schedule C 
Arvind's reply: We will not be able to make any changes in the agreement. 

My response:Clause 3.3/7.3: If you do not include the Common amenities and Club house in Schedule C how will the delay in handing over them covered under penalty clause 3.3. Read the Clause 7.3 which is excluding club house from completion of project.

7. Clause 9: What about Purchaser's Investment. You are not paying him any interest or penalty for delay, over and above you load him your Loss

Arvind's reply: The clause is applicable in case of force majeure and conditions beyond developer’s control.  The clause clearly states that the developer will try to complete the project as per the extended timelines.  In case of project delay other than force majeure, the developer will pay the compensation as specified in the agreement. 

My response:Clause 9:  "Developer shall refund the Purchaser, the amounts paid by Purchaser, without any interest, damage or compensation whatsoever after ADJUSTING IRRECOVERABLE EXPENSES INCURRED BY DEVELOPER" – After adjusting the losses he incurred what will be left out for compensation. We lose Interest on investment, Penalty for delays, Opportunity Cost and also our investment. Delete the highlighted wordings in capital letters.

8. Annexure -II: You promised me Vitrified Tiles in your Brochure and Website. How can you include ceramic tiles. Find the attached screenshot of your website.
Arvind's reply: The brochure specifies the flooring as vitrified/ceramic only.  The specifications mentioned on the website under ‘Sporcia’ section was incorrectly reflecting the specifications for Parishkaar project.  The same can be seen in the screen shot sent by you, kindly refer to the heads of the screen shot [Projects/Ahmedabad/Ongoing Projects/Parishkaar].  This technical issue happened as we are in the process of revamping our website.  The issue has now been rectified and the specifications have accordingly been corrected. 

My response: Annexure II: Please find the attached brochure I received during booking of the flat it clearly mentions Vitrified tiles. Very mean of you to stick to Ceramic Tiles in today’s times even though the Bangalore Real estate Market has gone beyond Vitrified Tiles.

9. Annexure-III: Then provide the AC points in all Living and Bed rooms.

Arvind's reply: We will be providing AC Points as specified in the agreement.  Any additional points, if required, can be arranged at a later stage at your own cost. 

OK

10. Clause 4.1: Where is the defect liability period mentioned?

Arvind's reply: Defects, if any, at the time of possession can be brought to the notice of maintenance team appointed by the developer.   

My response: Defects don’t show up in one day or on the day of possession. That is why every builder small or Big give a defect liability period of 1 year wherein he is liable to rectify the defects at his own costs. 

11. Clause 15.1: As per the clause the agreement supersedes the Brochure hence you have to mention all the Common Amenities and Club house details in the Annexure.

Arvind's reply:  We shall be providing amenities as agreed and we have displayed the same on our website itself.  Still, if you insist, we can provide you a separate mail confirming the amenities to be provided.  However, please note that we cannot make any amendment in the agreement. 

My response: Clause 15.1: Hope you know that everyone is educated and every word in the Agreement is what matters to the Court in case of dispute. Your mails and SMS will not work there.  Better be professional, when you are going to give us all the amenities what is the problem in mentioning it in the Annexures?

Agenda for the Meeting with builder:

 1. Change of Completion date

2.Change of penalty clause(increase in penalty rate) and include completion of amenities in it.

3. Flooring should be Vitrified Tiles only.

4.Defect Liability Period is must. Leakages, plumbing problems, cracks show up after using for some time. It is very Important.

5.Inclusion of Covered Car Park and all Amenities mentioned in brochure in the Annexure of the Agreeemnet

   I hope at least buyers residing in Bangalore can plan and ask for a meeting with Arvind Infra. It is time we ask the builder collectively. The clauses are unprofessional and unethical.

Regards

Sravan Palem,

9449874466

[vigneshg]

Thanks for asking such detailed questions Sravan... Let me also highlight the important questions as you mentioned and send it across to the builder and stress on few points which definitely needs a change.

Thanks,

Vignesh

[Sravan Palem]

Dear All,

 Please find the response of Arvind team to my queries. In short BIG NO to any changes. I wonder how buyers can execute the agreement without any defect liability clause with just promises in air/mail, I doubt he's planning to get the repairs done with the advance maintenance which we will be paying at the time of possession. The Annexure -1 i received has payment schedule only, no mention of cost break ups or mention of covered car park. Delay in handing over amenities is not covered under penalty clause and they don't want to include them in Schedule C. Only a mail to guarantee the amenities and nothing in agreement papers.  It is highly impossible to complete the basement slab by 30th july 2015 with the onset of rainy season and with a basement. Please go through the conversation.

2. Annexure-1 is not just payment schedule but it also should contain cost break up and other charges levied as per Clause 1.2. so kindly mail me the draft.

Arvind's reply: Deep will mail you the payment schedule by tomorrow.  Please note that the break up does not include the service tax or other government levies, stamp duty and registration charges.   

My response: I did not receive it

Arvind's reply: Deep has already forwarded the same to you.  Hope you would have received it.  The payment schedule will be mentioned in the final agreement draft for your unit. 

3. Clause 3.2: I was promised completion by August 2017 in all aspects how can you push it to March 2018 + Grace period. You have delayed the project by seven months by not finalising the Contractor. You don't even engage Project Management Consultant to Monitor Quality and Progress and just say we'll start handing over from December 2017. In that case you modify the date to December 2017, at the end of the day Agreement speaks not your mails. 
Arvind's reply: We will not be able to make any modifications in the agreement.  We have an internal quality monitor team, who is already taking care of the quality matters for our projects, including our project, Expansia, in Bangalore.

My response: Clause 3.2: If you can’t make changes who shall be held responsible for the delay. Who shall bear the Loss for the delay?

Arvind's reply: As already communicated, we will not be able to make any changes in the agreement.  The delay clause is already taken care in the agreement.

 

4.Clause 3.3: An agreement needs to be approved by both the Parties and not just Builder and his lawyers. Make it at par with market standards.
Arvind's reply: The agreement been drafted considering the general market practices only and as per our company’s policies. 

My response: Clause 3.3: Your company policies are meant for your company employees not for your customers. You have delayed the project, pushed the Completion date and offering peanuts in the name of penalty. I do not accept in fact no buyer will accept. I know you have received the same response from all the buyers and you replied them the same way. We all feel being cheated after paying you  instalments in time and sitting ducks for more than 1 year. It is better you arrange a meeting so that we buyers will come and discuss the issue with your management.

Arvind's reply: The agreement has been drafted considering the general market practices only. In case of any issues, you may write to us and we will try to resolve it in the best possible manner. 

6. Clause 7.3: Then include Club house and other common amenities in Schedule C 
Arvind's reply: We will not be able to make any changes in the agreement. 

My response:Clause 3.3/7.3: If you do not include the Common amenities and Club house in Schedule C how will the delay in handing over them covered under penalty clause 3.3. Read the Clause 7.3 which is excluding club house from completion of project.

Arvind's reply: Any modifications in the agreement is not possible. 

7. Clause 9: What about Purchaser's Investment. You are not paying him any interest or penalty for delay, over and above you load him your Loss

Arvind's reply: The clause is applicable in case of force majeure and conditions beyond developer’s control.  The clause clearly states that the developer will try to complete the project as per the extended timelines.  In case of project delay other than force majeure, the developer will pay the compensation as specified in the agreement. 

My response:Clause 9:  "Developer shall refund the Purchaser, the amounts paid by Purchaser, without any interest, damage or compensation whatsoever after ADJUSTING IRRECOVERABLE EXPENSES INCURRED BY DEVELOPER" – After adjusting the losses he incurred what will be left out for compensation. We lose Interest on investment, Penalty for delays, Opportunity Cost and also our investment. Delete the highlighted wordings in capital letters.

Arvind's reply: We will not be able to make any changes in the agreement. The developer will, in any case, try to complete the project within the extended timelines.  

8. Annexure -II: You promised me Vitrified Tiles in your Brochure and Website. How can you include ceramic tiles. Find the attached screenshot of your website.
Arvind's reply: The brochure specifies the flooring as vitrified/ceramic only.  The specifications mentioned on the website under ‘Sporcia’ section was incorrectly reflecting the specifications for Parishkaar project.  The same can be seen in the screen shot sent by you, kindly refer to the heads of the screen shot [Projects/Ahmedabad/Ongoing Projects/Parishkaar].  This technical issue happened as we are in the process of revamping our website.  The issue has now been rectified and the specifications have accordingly been corrected. 

My response: Annexure II: Please find the attached brochure I received during booking of the flat it clearly mentions Vitrified tiles. Very mean of you to stick to Ceramic Tiles in today’s times even though the Bangalore Real estate Market has gone beyond Vitrified Tiles.

Arvind's reply: We will be providing vitrified tiles. However, the option of ceramic has been kept, as we might provide the ceramic tiles, which will be of better look and quality than the vitrified tiles.

9. Annexure-III: Then provide the AC points in all Living and Bed rooms.

Arvind's reply: We will be providing AC Points as specified in the agreement.  Any additional points, if required, can be arranged at a later stage at your own cost. 

OK

10. Clause 4.1: Where is the defect liability period mentioned?

Arvind's reply: Defects, if any, at the time of possession can be brought to the notice of maintenance team appointed by the developer.   

My response: Defects don’t show up in one day or on the day of possession. That is why every builder small or Big give a defect liability period of 1 year wherein he is liable to rectify the defects at his own costs. 

Arvind's reply: The developer will be taking care of maintenance through the maintenance agency, if required, for a period of one year.  Any issues can be brought to the notice for timely resolution. 

11. Clause 15.1: As per the clause the agreement supersedes the Brochure hence you have to mention all the Common Amenities and Club house details in the Annexure.

Arvind's reply:  We shall be providing amenities as agreed and we have displayed the same on our website itself.  Still, if you insist, we can provide you a separate mail confirming the amenities to be provided.  However, please note that we cannot make any amendment in the agreement. 

My response: Clause 15.1: Hope you know that everyone is educated and every word in the Agreement is what matters to the Court in case of dispute. Your mails and SMS will not work there.  Better be professional, when you are going to give us all the amenities what is the problem in mentioning it in the Annexures?

Arvind's reply:  Please understand that we are executing a standard draft of agreement for all our customers and we cannot make changes as per the requirements of individual customer.  Each and every customer will have a different perspective and incorporating changes as per the same is not feasible for any developer. As mentioned earlier, we can provide you a separate mail confirming the amenities to be provided.  However, please note that we cannot make any amendment in the agreement.