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HomeDocumentsDocument Guides › Builder Buyer Agreement

Builder buyer agreement — what RERA already gives you, and the clauses still worth fighting over

A sixty-page agreement arrives by email two days before the second instalment is due, with a note saying it is the builder’s standard form. Most buyers sign it without reading past the first page, because they assume nothing in it can be changed. Some of it cannot. But a great deal of what that agreement appears to take away — the right to interest on delay, the right to a refund, protection against a changed floor plan, five years of defect liability — the law gives back regardless of what you signed. This page is about telling the two apart.

Review from ₹4,500 2 – 5 days Delhi, Noida, Gurugram and all RERA States Nothing payable in advance
What is a builder buyer agreement under RERA?A builder buyer agreement is the contract between a real estate promoter and the buyer of an apartment, plot or building in a project, which the Real Estate (Regulation and Development) Act, 2016 calls an agreement for sale. Section 13 prohibits the promoter from accepting more than ten per cent of the cost as an advance or application fee without first entering into a written agreement for sale and registering it, and requires the agreement to be in the form prescribed by the State’s rules. The Act then gives the buyer rights that no clause can remove: under Section 18, if possession is not given by the agreed date, the buyer may withdraw and recover the amount paid with interest and compensation, or stay and receive interest for every month of delay; under Section 2(za), the rate of interest on default must be the same for the promoter and the buyer; under Section 14, the sanctioned plan and specifications cannot be changed without the buyer’s consent, and structural or workmanship defects notified within five years of possession must be rectified free within thirty days. The price should be for carpet area as defined in Section 2(k). The Supreme Court has held that wholly one-sided terms in such agreements do not bind the buyer.

The most important document you will sign before the deed

When a flat is bought ready, the sale deed is the document that matters, and it is signed on the day the money changes hands. When a flat is bought under construction, the money changes hands over three, four or sometimes eight years, and for all of that time the only thing standing between the buyer and the builder is the agreement for sale. The conveyance deed comes at the very end, if it comes at all.

That makes the builder buyer agreement the document that decides what happens in every situation a buyer actually worries about. If the building is late, the agreement says what the builder pays. If the buyer is late with an instalment, the agreement says what the buyer pays. If the buyer wants out, it says what is forfeited. If the tower is redesigned, it says whether the buyer was asked. If the flat is smaller than promised, it says how area is measured and what is refunded.

Before 2016 these questions were answered almost entirely by the builder’s own draft, and the drafts were what one would expect: generous to the party that wrote them. The Real Estate (Regulation and Development) Act, 2016 — RERA — changed the position in a way that is still not widely understood. It did not simply regulate the agreement. It wrote a set of rights directly into the statute, so that a buyer has them whatever the agreement says.

If, instead, you own the plot and are hiring someone to build on it, you are not a buyer under RERA at all — you are an owner hiring a contractor, and the document you need is different; our construction contractor agreement guide covers it.

Application, allotment letter, agreement for sale — not the same

A booking usually produces three documents in sequence, and buyers often treat them as one.

The application form is the buyer’s offer. It is filled in at the site office or online, signed with a cheque for the booking amount, and frequently carries a set of printed “terms and conditions” on the reverse in small type. Those terms are often more one-sided than the eventual agreement, because they are written before any regulator has looked at anything.

The allotment letter is the builder’s acceptance. It identifies the unit — tower, floor, number — records the price and the payment plan, and asks for the next instalment. It creates a binding relationship, but it is not the agreement for sale the Act contemplates, and it should not be allowed to become one by the builder simply never issuing the full agreement.

The agreement for sale is the full contract, in the form the State’s rules prescribe, which Section 13 requires to be entered into and registered before the builder takes more than ten per cent of the cost. It is the document this page is about. When it arrives, it supersedes the terms on the back of the application to the extent they differ, and buyers should check that it says so.

First check: is the project registered?

Section 3 of the Act requires a promoter to register a real estate project with the State’s Regulatory Authority before advertising, marketing, booking or selling any unit in it, subject to exceptions for small projects — broadly, where the land does not exceed five hundred square metres or the number of apartments does not exceed eight — and for projects that had received completion certificates before the Act came into force. Ongoing projects without a completion certificate had to be registered too.

For a buyer, registration is the first check and the easiest. Every State authority has a portal on which the project can be looked up by name or registration number. The entry shows the promoter, the approvals, the sanctioned plan, the number of units, the declared date of completion, and quarterly updates on construction and on money received. It is the single best source of information about a project that the builder’s brochure will not give you.

In the National Capital Region the check has a trap in it. A buyer living in Delhi is often buying outside Delhi. A project in Noida, Greater Noida or Ghaziabad is registered with UP RERA. A project in Gurugram is registered with the Haryana authority at Gurugram, which is a separate authority from the one at Panchkula for the rest of Haryana. A project inside Delhi is registered with the Delhi authority. Looking on the wrong portal produces a false “not registered”.

The ten per cent line

Section 13(1) is the provision most buyers have heard of: a promoter cannot accept more than ten per cent of the cost of the apartment, plot or building as an advance or an application fee without first entering into a written agreement for sale and registering it. We set out its text and what it means for a title check on our property title verification guide, and how it fits into an ordinary agreement to sell on our sale agreement guide, so we will not repeat that here.

What matters on this page is how the line is crossed in practice. The booking amount is often small. Then a “first instalment within thirty days” is demanded before any agreement has been issued, and together the two exceed ten per cent. Sometimes the agreement is issued but not registered, and the builder treats the signed copy as sufficient. Sometimes the ten per cent is calculated on the basic price alone, leaving out charges that are in truth part of the cost.

The buyer’s position in each case is simple. Payment beyond ten per cent can be withheld until a registered agreement is offered, and a builder who insists otherwise is in breach of the Act rather than the buyer being in breach of the allotment. If the money has already been paid, the record of it — dates, receipts, the absence of a registered agreement — is itself material for a complaint.

Registration also protects the buyer in a way that is easy to overlook: a registered agreement is a public record. If the builder later sells the same unit twice, or mortgages the project without disclosure, the buyer with a registered agreement is in a far stronger position than one holding a receipt.

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The model agreement in your State’s rules

Section 13(2) goes further than requiring an agreement. It requires the agreement to be in the form prescribed by the rules, and to specify particulars including the development of the project, the specifications and internal development works, the dates and manner of payments, the date of possession, the rates of interest payable by the promoter to the allottee and by the allottee to the promoter in case of default, and other particulars the rules require.

Each State’s rules therefore contain a model agreement for sale, usually as an annexure. It is the most useful document a buyer can read before signing, because it shows what the regulator thinks a fair agreement looks like. The model forms broadly follow the same shape: carpet area and price, payment plan linked to construction, possession date and consequences of delay, defect liability, cancellation on either side and its financial consequences, and the buyer’s right to information.

Builders are entitled to fill in project-specific particulars, and many add schedules describing the unit, the specifications and the payment plan. What the model form does not permit is a clause that dilutes the rights the Act gives. Where a builder’s draft departs from the model on possession, interest, cancellation or alterations, the departure is exactly where attention should go. The rules and model forms of several States provide, in substance, that a clause contrary to the Act, the rules or the model form does not bind the allottee.

Carpet area, and the super area habit

For decades flats in North India were sold on super area — a figure that included the flat, its walls, a share of the staircases, lobbies, lift shafts, the clubhouse and sometimes the swimming pool. The gap between super area and what a family could actually use was called “loading”, and it commonly ran to thirty or forty per cent. Two flats with the same super area could differ in usable space by a room.

The Act defines the measure that now matters.

Section 2(k). “carpet area” means the net usable floor area of an apartment, excluding the area covered by the external walls, areas under services shafts, exclusive balcony or verandah area and exclusive open terrace area, but includes the area covered by the internal partition walls of the apartment.

Real Estate (Regulation and Development) Act, 2016 — Section 2(k).

The model agreements in the State rules require the price to be stated for the carpet area so defined, with balconies and terraces, where they are exclusive to the flat, stated separately. That is the figure a buyer should compare between projects, and the figure against which the final flat should be measured.

Two points follow. First, an agreement that states only super area, or states the price per square foot of super area, is out of step with the Act; the buyer should ask for the carpet area and the price per square foot of carpet area in writing. Second, the model agreements generally provide for what happens if the carpet area on completion differs from what was agreed — a refund with interest if it is smaller beyond a small tolerance, and a limited charge if it is larger. A draft that allows the builder to vary the area freely without any such adjustment should be corrected.

What the price actually includes

The number on the brochure is almost never the number a buyer pays. The agreement is where the full cost has to be written down, and a buyer should not sign until every component is stated in rupees rather than described.

Swipe to see the full table
ComponentWhat it usually isWhat to check
Basic sale pricePrice per square foot of carpet area × areaThat it is on carpet area, not super area
Preferential location chargesExtra for a park-facing, corner or higher-floor unitThat the preference actually exists on the sanctioned layout
External and infrastructure development chargesCharges levied by the development authority and passed onWhether future increases can be passed on, and on what proof
ParkingCovered garage, where allottedThat it is a garage, not open parking, which is a common area
Club and amenity chargesMembership of facilities in the projectWhether it is optional, and when the facilities will exist
Maintenance deposit and advance maintenanceSinking fund and months of maintenance in advanceThat it transfers to the association, with interest
GSTOn under-construction unitsRate applied, and that it is not charged on completed-unit payments
Stamp duty and registrationOn the agreement, where the State requires, and on the conveyance deedPaid to the government, not the builder

The clause to look for is the one that allows the builder to add charges later — “any other charges as may be levied” — without limit or proof. Increases in charges genuinely imposed by a government authority after the agreement can reasonably be passed on, with the demand produced. Anything else should be in the price now.

Payment plans, and the one to be careful with

The payment plan decides how much of the buyer’s money is with the builder at any moment, and therefore how much is at risk if the project stalls. There are three broad kinds.

A construction-linked plan ties each instalment to a stage — foundation, each slab, brickwork, plaster, finishing, possession. It is the plan the model agreements assume, and the one that most closely matches what the buyer pays to what the builder has built. The buyer should check that each demand letter corresponds to a stage actually reached, and the quarterly updates on the RERA portal help with exactly that.

A down-payment plan collects most of the price early in exchange for a discount. Before RERA, this was where buyers lost most money in stalled projects. The ten per cent rule and the requirement that the promoter keep a large share of collections in a separate account for that project reduce the risk, but a buyer paying ninety per cent upfront has still placed ninety per cent of the price in a project that does not yet exist.

The plan to be most careful with is the subvention plan, under which the buyer takes a home loan, the bank disburses to the builder early, and the builder promises to pay the pre-EMI interest until possession. When the project runs late and the builder stops paying, the bank turns to the borrower — who is, after all, the one who signed the loan. We come back to this under home loans below.

The possession date, the grace period and force majeure

Every agreement names a date, or a period from a starting event, by which possession is to be handed over. Three details around that date decide whether it means anything.

The first is the starting event. A period of “forty-two months from the date of this agreement” is clear. A period of “forty-two months from the start of construction of the tower” or “from the receipt of all approvals” is not, because the buyer has no way of knowing when that event occurs. The date should be a date.

The second is the grace period. Many agreements add six months, sometimes twelve, after the possession date before any consequence follows. A reasonable grace period is common, but it should be a fixed period, and it should not be layered on top of a second extension for “reasons beyond control”.

The third is force majeure. The Act itself recognises force majeure for the limited purpose of extending a project’s registration, and Section 6 defines it narrowly: war, flood, drought, fire, cyclone, earthquake or any other calamity caused by nature affecting the regular development of the project. During the pandemic, State authorities issued general extensions of timelines, and those orders apply according to their terms. What the Act does not recognise as force majeure is the builder’s own difficulties — a shortage of funds, a dispute with a contractor, slow sales, or a delay in approvals the builder should have obtained earlier. An agreement whose force majeure clause includes those should be narrowed.

Write down, next to the agreement, the date on which possession becomes late on the agreement’s own terms. That is the date from which the next section begins to operate.

On delay: Section 18 and your choice

This is the provision that most changes the balance between builder and buyer, and it is worth reading in full.

Section 18(1). If the promoter fails to complete or is unable to give possession of an apartment, plot or building, — (a) in accordance with the terms of the agreement for sale or, as the case may be, duly completed by the date specified therein; or (b) due to discontinuance of his business as a developer on account of suspension or revocation of the registration under this Act or for any other reason, he shall be liable on demand to the allottees, in case the allottee wishes to withdraw from the project, without prejudice to any other remedy available, to return the amount received by him in respect of that apartment, plot, building, as the case may be, with interest at such rate as may be prescribed in this behalf including compensation in the manner as provided under this Act:

Provided that where an allottee does not intend to withdraw from the project, he shall be paid, by the promoter, interest for every month of delay, till the handing over of the possession, at such rate as may be prescribed.

Real Estate (Regulation and Development) Act, 2016 — Section 18(1).

Three things about that text are routinely missed. The first is that the choice belongs to the allottee. The section says “in case the allottee wishes to withdraw” and “where an allottee does not intend to withdraw”. An agreement cannot convert that into the builder’s option — for instance, by offering a different flat in another project instead of a refund, or by allowing the buyer to cancel only on forfeiture.

The second is that the refund is of the amount received, with interest, including compensation. It is not the amount received less forfeiture, less taxes, less brokerage. The Supreme Court in Newtech Promoters and Developers v. State of U.P. (2021) described the right to a refund on failure to give possession within the stipulated time as unconditional, not dependent on unforeseen events or stay orders that were not attributable to the allottee.

The third is that the buyer who stays is not left without a remedy. Interest runs for every month of delay until possession is handed over — which means a valid offer of possession, with the occupancy certificate, not a letter inviting the buyer to pay the final instalment for a flat that cannot yet lawfully be occupied.

Swipe to see the full table
If you…What you can claimWho ordinarily decides it
Withdraw from the projectEverything paid, with interest at the prescribed rate from each date of paymentThe Regulatory Authority
Stay and wait for the flatInterest for every month of delay until valid possessionThe Regulatory Authority
Want compensation beyond interestLoss actually suffered — rent paid, loan costs, other proven lossThe adjudicating officer, under Sections 71 and 72
Have already taken possession lateDelay interest for the period of delay, which is not waived by taking possessionThe Regulatory Authority, or a consumer commission

The last row answers a common worry. Buyers are often told that by accepting possession they give up any claim for delay. The Supreme Court rejected that argument in Wg. Cdr. Arifur Rahman Khan v. DLF Southern Homes (2020): flat buyers who took possession were not thereby disentitled from compensation for the delay. A buyer who has waited years is not required to refuse the flat in order to keep the claim alive.

Interest must be equal both ways

Before RERA, the most characteristic feature of builder agreements in the NCR was an asymmetry. If the buyer paid late, interest ran at eighteen or twenty-four per cent a year, compounded, and after a few defaults the builder could cancel and forfeit. If the builder handed over late, it paid compensation at a fixed rate per square foot per month — five rupees, ten rupees — which on a typical flat worked out to a small fraction of what the buyer was paying in rent and loan interest while waiting.

The Act ends that asymmetry by definition. Section 2(za) defines “interest” as the rates of interest payable by the promoter or the allottee, and its explanation provides that the rate chargeable from the allottee by the promoter in case of default shall be equal to the rate of interest which the promoter shall be liable to pay the allottee in case of default. It also fixes when interest runs: from the promoter, from the date it received the money until it is refunded; from the allottee, from the date of default until payment.

The rate itself is set by each State’s rules, and in many States it is linked to the State Bank of India’s highest marginal cost of lending rate plus two per cent. The exact rule is in your State’s notification, and it changes when the benchmark changes. What does not change is the principle: whatever the rate, it is the same in both directions.

When reading the draft, find both interest clauses — one usually sits in the payment section, the other in the possession section — and compare them side by side. If they differ, the Act governs, and the buyer should ask for the draft to be corrected before signing, so that the agreement does not need to be argued with later. Also check that the buyer’s default interest is simple interest for the period of actual delay, not compounded, and not triggered by a demand letter the buyer may not have received.

One-sided clauses the courts will not enforce

A builder buyer agreement is a standard form. The buyer does not draft it and, for most of the clauses, cannot change it. The law has long recognised that a person who signs a form of this kind does not agree to every term in the sense that two negotiating parties do.

The leading decision is Pioneer Urban Land and Infrastructure Ltd. v. Govindan Raghavan, decided by the Supreme Court on 2 April 2019. The agreement in that case charged the buyer interest at eighteen per cent for delay in payment and allowed the builder to cancel for a delay of a few months, while the builder’s liability for its own delay was limited to a small amount per square foot. The Court held that the terms were wholly one-sided and unfair to the buyer, that the buyer could not be bound by them, and that the use of such terms amounted to an unfair trade practice. It also affirmed that a buyer cannot be made to wait indefinitely for possession and is entitled to a refund with compensation after an unreasonable delay.

The Court applied the same approach in IREO Grace Realtech v. Abhishek Khanna (2021), in which it again declined to enforce one-sided terms and upheld a refund with interest. The Consumer Protection Act, 2019 now expressly treats an unfair contract — one containing terms that cause significant change in the rights of the consumer, such as excessive security deposits, disproportionate penalties or unilateral termination — as something a consumer commission can declare null and void.

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Cancellation and forfeiture

Every agreement deals with cancellation twice: cancellation by the builder, usually for the buyer’s default in payment, and cancellation by the buyer, usually because circumstances have changed. In both cases the question is what the builder may keep.

The general law was settled long before RERA. In Maula Bux v. Union of India (1969) the Supreme Court held that forfeiture of a reasonable sum paid as earnest money to secure performance is permissible, but that where the amount forfeited goes beyond that and is in the nature of a penalty, it can be retained only to the extent of the loss actually suffered, under Section 74 of the Indian Contract Act, 1872. A builder that forfeits a large share of the price must therefore justify it as real loss, which is rarely possible where the flat can be resold.

Consumer commissions have for years treated around ten per cent of the basic sale price as a reasonable earnest amount in flat cases, and several State RERA authorities have since framed regulations fixing a ceiling of about that order on what a promoter may forfeit when an allottee withdraws. The figure differs by State and by the stage of the project, so check your State’s regulation rather than assuming it.

Three things should never be forfeited, and a draft that forfeits them should be corrected: taxes the builder has paid over to the government on the buyer’s behalf and can recover; brokerage paid by the buyer to a third party; and interest the buyer paid to a bank. The agreement should also fix a time limit for the refund after cancellation, and interest if it is exceeded. A clause that returns the balance “on resale of the unit” leaves the buyer waiting on an event the builder controls.

Where the builder cancels for the buyer’s default, the model agreements generally require notice and an opportunity to pay before cancellation. A cancellation without notice, or one triggered by a small or disputed delay, is open to challenge.

Changes to the plan and specifications

Buyers are often told that the layout “may change” and that the builder reserves the right to alter plans. The Act narrows that right considerably.

Section 14(1) requires the project to be developed and completed in accordance with the sanctioned plans, layout plans and specifications as approved by the competent authorities. Section 14(2) then provides that, after the plans and specifications are disclosed, the promoter shall not make any additions or alterations in the sanctioned plans, layout plans and specifications and the nature of fixtures, fittings and amenities described in respect of the apartment, plot or building that has been agreed to be taken, without the previous consent of that person — save for minor additions or alterations permitted by the Act. For other alterations or additions in the sanctioned plans of the building or the common areas, the promoter needs the previous written consent of at least two-thirds of the allottees, other than the promoter.

In practice the problem appears in two forms. One is a clause in which the buyer consents, in advance, to any changes the builder may make in future. That clause is an attempt to collect the consent Section 14 requires before the buyer knows what it is consenting to, and should be removed or confined to changes required by the authorities. The other is a change the buyer discovers only at possession: a smaller balcony, a relocated tower, a reduced park, an extra floor.

The protection is in the documents. Keep the brochure, the sanctioned plan the builder displayed or uploaded to the RERA portal, and the specifications schedule attached to the agreement. If the finished flat does not match them, those three are the evidence.

Five years of defect liability

A flat bought from a developer comes with a statutory guarantee that most buyers never use, because they do not know it exists.

Section 14(3). In case any structural defect or any other defect in workmanship, quality or provision of services or any other obligations of the promoter as per the agreement for sale relating to such development is brought to the notice of the promoter within a period of five years by the allottee from the date of handing over possession, it shall be the duty of the promoter to rectify such defects without further charge, within thirty days, and in the event of promoter’s failure to rectify such defects within such time, the aggrieved allottees shall be entitled to receive appropriate compensation in the manner as provided under this Act.

Real Estate (Regulation and Development) Act, 2016 — Section 14(3).

The provision is wider than its first words suggest. It is not limited to structural defects. It covers defects in workmanship and quality, defects in the provision of services, and failure in any other obligation of the promoter under the agreement for sale. Seepage, cracks in plaster, faulty wiring, a lift that does not work, a promised amenity that was never built: all of these can fall within it.

The five years run from the date possession is handed over, and the thirty days run from the date the defect is brought to the promoter’s notice. Both dates have to be proved, which is why the notice should be in writing — an email, a letter, a complaint logged on the builder’s portal — with photographs and a date. A telephone call to the site engineer is not notice.

Parking, common areas and what you are paying for

Parking has been one of the most argued questions in Indian housing, and the Act answers most of it through definitions.

Section 2(n) defines common areas to include, among other things, the entire land for the project, the staircases, lifts, lobbies, fire escapes and entrances, the common basements, terraces, parks, play areas, open parking areas and common storage spaces, and the premises for the lodging of persons employed for the management of the property. Section 2(y) separately defines a garage as a place within a project having a roof and walls on three sides for parking any vehicle, and says it does not include an unenclosed or uncovered parking space such as open parking areas.

The effect is that a covered garage, as so defined, may be allotted to a buyer as part of the transaction, and its price stated. Open parking is a common area, which will vest in the association with the rest of the common areas, and is not the builder’s to sell as a separate asset. The Supreme Court held something similar before RERA, in Nahalchand Laloochand v. Panchali Co-operative Housing Society (2010), treating stilt parking in a building as part of the common areas rather than a separately saleable flat.

When reading the agreement, find out exactly what the parking charge is for: a specific numbered covered garage, a right to use a space, or simply a promise. A “car parking right” sold for several lakh rupees without any identified space is an invitation to a dispute at possession.

Holding charges and maintenance before possession

Two kinds of charge appear at the end of a project and are often confused.

Holding charges are amounts some builders have demanded from buyers who did not take possession immediately after an offer — framed as a charge for “holding” the flat. In DLF Home Developers v. Capital Greens Flat Buyers Association (2020), the Supreme Court upheld the view of the National Consumer Commission that the developer could not levy holding charges on the buyers in that case. The decision is now widely relied on where a buyer is asked to pay for the builder’s own delay in completing the formalities.

Maintenance charges are different. Once a valid offer of possession has been made, with the occupancy certificate, the building has to be maintained, and a buyer who does not take possession is ordinarily liable for maintenance from a reasonable period after the offer. What a buyer should resist is maintenance demanded before a valid offer, or for a period in which the common facilities did not exist.

Selling or transferring before possession

The usual method is endorsement or nomination: the builder records the new buyer in place of the original allottee on the same agreement, and the new buyer steps into the original buyer’s shoes. Builders commonly charge a transfer fee for this, and many require all dues to be cleared first. The fee is a commercial term, but it should be fixed in the agreement, not “as applicable at the time”, and the builder’s consent should not be capable of being refused without reason.

The buyer taking the transfer should insist on two things. First, that the endorsement expressly transfers all the original allottee’s rights, including accrued delay interest and claims, unless the parties have agreed otherwise and priced it. Second, that the builder confirms in writing the amount received to date and the dues outstanding, so there is no argument later about what was paid by whom.

Occupancy certificate, possession and the conveyance deed

The occupancy certificate — called a completion or occupation certificate in some places — is issued by the local authority or development authority after inspection, and certifies that the building has been constructed in accordance with the sanctioned plan and is fit for occupation. Until it is issued, the building cannot lawfully be occupied, and consumer commissions have repeatedly held that an “offer of possession” made without it is not a valid offer. A buyer who receives such an offer should ask, in writing, for a copy of the certificate before paying the final instalment.

Once a valid certificate has been issued, the obligation moves to the buyer.

Section 19(10). Every allottee shall take physical possession of the apartment, plot or building as the case may be, within a period of two months of the occupancy certificate issued for the said apartment, plot or building, as the case may be.

Real Estate (Regulation and Development) Act, 2016 — Section 19(10).

The conveyance deed is the document that actually transfers ownership. Section 17 requires the promoter to execute a registered conveyance deed in favour of the allottee, along with the undivided proportionate title in the common areas to the association of allottees, and to hand over physical possession; where no local law fixes a period, this is to be done within three months from the date of issue of the occupancy certificate. Section 11(4)(f) separately makes execution of the registered conveyance deed one of the promoter’s duties.

The point to hold on to is that until the conveyance deed is registered, the buyer owns a contract, not a flat. A buyer who has taken possession and moved in, but whose conveyance deed has not been executed, cannot sell cleanly, cannot always mortgage, and is exposed if the builder’s own title or finances go wrong. Stamp duty on the deed is the buyer’s cost and is often the reason buyers delay; it is rarely a good reason. Our conveyance deed guide explains the four kinds of conveyance, and our conveyance deed service covers the drafting and registration.

Home loans, tripartite agreements and subvention

Most under-construction flats are bought with a home loan, and the loan brings a third document into the transaction: the tripartite agreement between the buyer, the builder and the bank.

The tripartite agreement usually provides that the bank will disburse the loan directly to the builder in stages, that the builder will not transfer the flat to anybody else without the bank’s consent, that the builder will note the bank’s interest in its records, and that on cancellation any refund will go to the bank first. It is not a formality. It decides where the money goes if the project fails, and it is often the only document in which the builder undertakes anything directly to the bank. Read it with the same care as the agreement.

A subvention arrangement adds a further promise: the builder will pay the interest, or pre-EMI, on the buyer’s loan until possession, and the buyer pays nothing until then. The bank, meanwhile, disburses most of the loan to the builder early — sometimes far ahead of construction. When the project runs late and the builder stops paying the interest, the bank turns to the borrower, who signed the loan agreement, and the buyer finds that the promise of “no EMI till possession” was the builder’s alone. Such schemes in the NCR have drawn close scrutiny from the courts in recent years.

If you take a subvention plan, three checks help. See whether the bank’s own documents record the subvention, or whether only the builder’s letter does. Find out how much the bank is disbursing and when, against the construction stage. And diarise the date on which the builder’s interest obligation is due each month, so that a missed payment is noticed immediately rather than when the bank’s recovery letter arrives. Our home loan documentation service reads the loan papers alongside the agreement, and our home loan guide explains the Reserve Bank rules that protect you.

RERA or the consumer commission

When things go wrong, a buyer has more than one forum, and the choice is a real one.

Under Section 31, a complaint can be filed with the Regulatory Authority or the adjudicating officer for any violation of the Act, the rules or the regulations. The Authority can direct refund and interest, and impose penalties. Compensation is for the adjudicating officer under Sections 71 and 72, who considers factors including the amount of disproportionate gain or unfair advantage made by the promoter, the amount of loss caused, and the repetitive nature of the default. The Supreme Court settled this division of work in Newtech (2021). An appeal lies to the Appellate Tribunal, and a promoter appealing must first deposit at least thirty per cent of the penalty, or the total amount to be paid to the allottee including interest and compensation, as the proviso to Section 43(5) requires.

The consumer commissions under the Consumer Protection Act, 2019 remain available. In Imperia Structures v. Anil Patni (2020) the Supreme Court held that the Act does not bar a consumer complaint: Section 79 bars the jurisdiction of civil courts, and a consumer commission is not a civil court for that purpose, while Section 88 says RERA is in addition to, not in derogation of, other laws. The consumer route may be preferred where the buyer wants the commission’s wider powers on compensation and unfair contract terms, or where the project or the claim sits better there.

What a buyer should not do is file in both places on the same facts and ask for the same relief. The choice depends on what is being claimed, the amount, how quickly each forum is moving in the State concerned, and whether other buyers in the project have already chosen a forum. That is a decision to make with an advocate — engaged and paid by you directly — and our find an advocate page lists advocates who handle real estate matters. What we prepare is the documentation: the chronology, the payment record, the notice, and the complaint papers through our RERA complaint filing service.

Builder delaying? Start with a proper notice for delay

When the builder is insolvent

The Insolvency and Bankruptcy Code, 2016 was amended in 2018 to provide, through an explanation to Section 5(8)(f), that any amount raised from an allottee under a real estate project is treated as having the commercial effect of a borrowing. Allottees are therefore financial creditors of the developer. The Supreme Court upheld the amendment in Pioneer Urban Land and Infrastructure Ltd. v. Union of India (2019). As financial creditors, homebuyers take part in the committee of creditors through an authorised representative, and vote on the resolution plan for the company.

A further amendment in 2020 added a threshold: an application by allottees to start the insolvency process against a developer must be filed jointly by at least one hundred allottees of the same project or ten per cent of the total number of allottees of that project, whichever is less. The Supreme Court upheld the threshold in Manish Kumar v. Union of India (2021).

The file you should keep from day one

Almost every successful claim against a builder is won on paper that the buyer collected years earlier. Almost every weak one fails for lack of it. The file is not complicated; it only has to be started early.

Keep the brochure and advertisements as they were when you booked, including screenshots of the website. Section 12 of the Act makes the promoter liable to compensate a person who makes an advance or deposit on the basis of information in a notice, advertisement or prospectus that turns out to be incorrect, and that claim is impossible to prove if the brochure has been thrown away.

Keep every receipt, with the date, amount and mode of payment, and every demand letter, with the construction stage it claims. Keep the allotment letter, the registered agreement, the tripartite agreement and any addendum. Keep a copy of the RERA registration page for the project as it stood when you booked, including the declared completion date.

Keep all correspondence in writing — emails rather than calls, and a written summary of any meeting sent back to the builder the same day. And keep a short chronology : one line for each payment, each demand, each promised date and each missed one. A two-page chronology with the documents behind it is worth more to an advocate, or to an adjudicating officer, than a year of phone calls.

What we do, and what it costs

Builder buyer agreement review or drafting is ₹4,500 and ordinarily takes 2 – 5 days. The work is documentation: reading what the builder has given you against the Act, the rules and the model agreement, and telling you in writing what the documents mean and what to ask for.

Swipe to see the full table
What is includedWhy it matters
Checking the project’s RERA registration and filingsThe declared completion date and approvals, from the promoter itself
Clause-by-clause comparison with your State’s model agreementThe dozen real departures are the negotiation
Carpet area and full cost stated in rupeesSo the price is what you actually pay
Payment plan tested against Section 13No more than ten per cent before a registered agreement
Possession, interest, cancellation and alteration clauses read against the ActWhere one-sided drafting usually sits
Tripartite and subvention documents read alongsideWhere the money goes if the project fails
A written note of changes to requestSomething to send the builder before signing
A chronology template for your fileThe record any later claim rests on

Stamp duty, registration fees and any government charges are at actuals. Nothing is payable in advance. We do not arrange loans, we are not brokers, and we do not advise on whether a particular project is a good investment. Complaints before the Authority or a consumer commission, appeals and insolvency proceedings are for your advocate, whose fee is engaged and paid by you directly; we do not quote, collect or share it.

Before you sign — the fifteen-minute check.
  • Is the project on the correct State’s RERA portal, and what completion date does it show?
  • Have I received the full agreement for sale, and will it be registered before I pay more than ten per cent?
  • Does it state the carpet area, and the price per square foot of carpet area?
  • Is every charge beyond the basic price stated in rupees?
  • Is the possession date a date, with a fixed grace period?
  • Is force majeure limited to real calamities?
  • Are the two interest clauses the same rate?
  • What can the builder forfeit if I cancel, and within how many days is the rest refunded?
  • Have I consented in advance to any change in the plan?
  • What exactly am I paying for under “parking”?
  • What does the tripartite agreement say, and is any subvention recorded by the bank?
  • Have I started the file — brochure, receipts, portal page, chronology?
FAQ

Builder buyer agreement — questions people ask

What is a builder buyer agreement?
It is the contract between a developer and the person buying a flat, plot or unit in a project that is being built. Under the Real Estate (Regulation and Development) Act, 2016 it is called an agreement for sale. It fixes what you are buying, its carpet area, the price and payment schedule, the possession date, the interest each side pays on default, and what happens on cancellation. Until the conveyance deed is registered, it is the document that decides your rights.
Can the builder change the agreement from the model form?
Section 13(2) requires the agreement to be in the form prescribed by the State’s rules, and those rules generally attach a model agreement. Promoters can add project-specific particulars, but clauses that dilute the buyer’s rights under the Act or the rules are open to challenge before the authority. Compare the draft you receive with the model in your State’s rules clause by clause; the differences are where the negotiation is.
What is carpet area under RERA?
Section 2(k) defines it as the net usable floor area of the apartment, excluding the area covered by the external walls, areas under service shafts, exclusive balcony or verandah area and exclusive open terrace area, but including the area covered by the internal partition walls. It is the area you can actually walk on inside your flat. Super area, built-up area and saleable area are larger numbers and are not what the price should be based on.
What happens if the builder delays possession?
Section 18(1) gives you a choice. You may withdraw and demand return of everything paid with interest at the prescribed rate, including compensation; or, if you want the flat, you are to be paid interest for every month of delay until possession is handed over. The choice is the buyer’s, not the builder’s. The Supreme Court has described the refund right as unconditional where possession is not given in time.
What rate of interest does the builder pay on delay?
The rate prescribed in the State’s RERA rules, which in many States is linked to the State Bank of India’s highest marginal cost of lending rate plus two per cent. More important is Section 2(za): the rate the promoter can charge the allottee on default shall be equal to the rate the promoter pays the allottee on its default. An agreement that charges you eighteen per cent and pays you a token amount per square foot is exactly what that provision was written against.
Is a one-sided builder agreement binding on me?
Not necessarily. In Pioneer Urban Land and Infrastructure v. Govindan Raghavan (2019) the Supreme Court held that the buyer was not bound by clauses that were wholly one-sided, such as high interest on the buyer’s delay against a nominal compensation for the builder’s, and treated the use of such terms as an unfair trade practice. It repeated the point in later cases. Signing a standard form does not waive protections the law gives.
How much can the builder forfeit if I cancel?
Only a reasonable earnest amount, and several State RERA authorities have fixed a ceiling, commonly around ten per cent of the consideration. The general law is Maula Bux v. Union of India (1969): forfeiture of a reasonable earnest is permitted, but anything beyond it is a penalty that must be justified as actual loss under Section 74 of the Contract Act. Forfeiting the whole amount paid, or taxes and brokerage paid to others, is routinely struck down.
Can the builder change the floor plan after I book?
Not without your previous consent. Section 14(2) prohibits additions and alterations in the sanctioned plans, layout plans and specifications of your apartment without it, save minor changes the Act permits, and other changes affecting the building need the written consent of at least two-thirds of the allottees. A clause in which you consent in advance to any future changes the builder may make should be struck out or narrowed.
How long is the builder responsible for defects?
Five years from the date possession is handed over. Under Section 14(3), a structural defect or a defect in workmanship, quality or provision of services brought to the promoter’s notice within that period must be rectified without further charge within thirty days; if it is not, the allottee is entitled to compensation. Report defects in writing, with photographs and dates, so the five years and the thirty days can be proved.
Can the builder sell me a parking space separately?
A covered garage, as defined in Section 2(y), can be allotted as part of the transaction. Open parking areas are listed among the common areas in Section 2(n) and are not the builder’s to sell as separate property. The Supreme Court held long before RERA, in Nahalchand Laloochand v. Panchali (2010), that stilt parking in a building is a common area. Read exactly what the agreement says you are paying for.
Does the builder have to give possession with an occupancy certificate?
Yes, in substance. A promoter can lawfully hand over a flat for occupation only after the competent authority has issued the occupancy or completion certificate, and consumer commissions have repeatedly held that an offer of possession without it is not a valid offer. Once the certificate is issued, Section 19(10) requires the allottee to take physical possession within two months, so the obligation runs both ways.
Can the builder charge holding charges if I delay taking possession?
The Supreme Court, in DLF Home Developers v. Capital Greens Flat Buyers Association (2020), upheld the consumer commission’s view that holding charges were not payable in that case, and the reasoning is widely applied. Maintenance charges for the period after a valid offer of possession are a different matter and are ordinarily payable. What you should not pay is a penalty for the builder’s own delay.
When must the conveyance deed be executed?
Section 17 requires the promoter to execute a registered conveyance deed in favour of the allottee, with the undivided proportionate title in the common areas to the association, and hand over possession — where no local law fixes a period, within three months from the occupancy certificate. Until that deed is registered, you have a contract right, not title. See our conveyance deed service.
Should I complain to RERA or to the consumer commission?
You can choose. The Supreme Court held in Imperia Structures v. Anil Patni (2020) that RERA does not bar a complaint under the Consumer Protection Act, because Section 79 bars civil courts and a consumer commission is not one, and Section 88 makes RERA additional to other laws. Which forum suits you depends on what you want, the amount, and how quickly each forum is moving; that choice is one to make with your advocate.
Who decides compensation under RERA?
Refund and interest can be directed by the Regulatory Authority. Compensation is decided by the adjudicating officer under Sections 71 and 72, who considers factors such as the gain made by the promoter, the loss caused and repeated default. Newtech Promoters v. State of U.P. (2021) settled this division. A promoter appealing an order to the Appellate Tribunal must first deposit at least thirty per cent of the penalty, or the total amount payable to the allottee.
Can homebuyers start insolvency against a builder?
Yes. The Insolvency and Bankruptcy Code treats amounts raised from allottees of a real estate project as financial debt, so allottees are financial creditors, as the Supreme Court upheld in Pioneer Urban Land v. Union of India (2019). An application must be made jointly by at least one hundred allottees of the same project or ten per cent of them, whichever is less. It is a serious step that halts the project into a resolution process.
What taxes apply to buying an under-construction flat?
GST applies to under-construction residential units, generally at five per cent without input tax credit, and at one per cent for units that qualify as affordable housing. A completed flat sold after the completion certificate does not attract GST. Stamp duty and registration are payable on the conveyance deed and, depending on the State, on the agreement for sale. A buyer of property above the prescribed value must deduct tax at source from the price.
I have already signed. Is it too late to do anything?
No. Most of the protections on this page come from the Act, not from the agreement, and they apply whatever you signed. A review after signing tells you which clauses the law overrides, what you should record in writing now, and what you are entitled to if the project is delayed. Keep every receipt, demand letter, email and construction update with dates; they are the evidence any later claim rests on.
What do you charge, and what is included?
Builder buyer agreement review or drafting is ₹4,500 and ordinarily takes 2 – 5 days. That covers checking the project’s registration and filings, reading the draft clause by clause against the Act and your State’s model agreement, testing the payment plan against Section 13, and giving you a written note of what to ask the builder to change. Complaints, appeals and insolvency are for your advocate, whose fee is engaged and paid by you directly.
Related

Buying from a builder — related services

Builder notice for delay RERA possession delay claim RERA refund with interest RERA complaint filing RERA appeal drafting Conveyance deed Home loan documentation Property due diligence Sale agreement guide Title verification guide Find an advocate All document guides

Send us the draft before the second instalment.

Most of what a builder buyer agreement appears to take away, RERA gives back — delay interest, a refund on your terms, equal interest both ways, five years of defect liability. The clauses that remain genuinely negotiable are the ones worth your attention before you sign: the carpet area, the full cost, the possession date, force majeure, cancellation and parking. Send us the draft, the allotment letter and the project name. We will read it against the Act and your State’s model agreement and tell you, in writing, what to ask the builder to change.

No payment now · Pay only after the work is done
Tis Hazari Court Complex, New Delhi, Delhi 110054
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