While it may seem easy to purchase land in Goa on paper, there are certain pieces of land which have legal and historical deals that need to be examined. As for the term, one which every potential buyer should know is Aforamento.
It is especially crucial to understand about afinamento when buying of Comunidade land in Goa. A land transaction involving aforemento does not necessarily imply that you are buying land as you would buy a piece of private land.
What is ‘aforemento’ and what do you actually own with ‘aforimento’ of the land ‘Comunidade’?
What Is Aforamento?
Aforamento is the traditional land tenure system that was practiced in the Portuguese period and Communidade system in Goa.
It may be the transfer of the right to possess and use a specific tract of land with restrictions, instead of the simple transfer of the land itself.
This distinction is important because someone who occupies or possesses the land may, without taking absolute private title to the land, hold some legally recognized interests.
The specific nature of the rights may vary according to the historical documents, laws, records and terms of specific property.
Understanding Comunidade Land
Comunidade system is an institution of landholding at the village level in Goa. Previously, lands belonging to Comunidade were under community control and administration, with specific rules.
Over the years, various types of transactions and rights have developed around such land. Leases, grants, occupancy rights or aforemento may apply to some properties.
So, if the property is being advertised as a “plot for sale” this does not automatically mean that the land is being sold outright by the seller.
That’s why buyers need to examine the real estate deed and the rights the seller holds before making a token payment.
What’s Your Stuff, Anyway?
The most crucial question for a potential purchaser.
An aforemento holder’s rights may be associated with one or more of the following: possession, use, construction, transfer, or enjoyment. The rights in question are not necessarily the same as the rights of absolute ownership, however.
That is, the language in a real estate ad is not as important as the words in the deed to the land.
The buyer should find out:
- On whose title is the land in question registered?
- Who owns the aforementioned or similar rights in the present?
- Which document is responsible for those rights?
- Can the rights be transferred?
- Is there any limitation on building or development?
- Do there exist unpaid dues, or unpaid obligations?
- Is permission or approval required or suggested for the proposed transaction?
- Are there any documents that are not consistent with the property being recorded?
Here are some questions that can shed light on what is being transmitted.
The Sale Deed is like a bill of sale; it will not tell the whole story.
People tend to look at the sale deed when purchasing property. The sale deed is key, but should not always be considered as the sole document in a Comunidade or aforamento transaction that will reflect the full legal situation of the land.
Historical records may be equally important.
The documents the buyer should review will depend on the property, and could include documents of the original grant, Comunidade documents, previous transfers, registration documents, survey information, revenue documents, and any other applicable documents.
The goal is to have a clear title from the initial agreement to the one in place today who is selling the home.
Is it possible to transfer the rights of Aforamento?
It is never assumed that anything will be transferable.
Transferability of an interest connected with aforementioned depends on the governing arrangement and in accordance with the applicable law.
It is important to note that a statement like the following should not be used by a prospective purchaser as a basis for their decision:
“All these plots are sold.”
“It is a property that has been sold a lot of time.
Past transactions cannot be used to guarantee that a proposed transaction will be legally sound or that the buyer will have the right that he/she is expecting.
The specific documents and applicable legal provisions need to be examined.
What About Construction Rights?
The other is development.
There may be a right to occupy or use land but one does not necessarily have the right to build on it.
Planning regulations, land use classification, permissions, environmental restrictions, heritage considerations, coastal regulations (where relevant) and other government requirements can all have an impact on construction.
Hence, prospective purchasers looking to construct a villa, holiday home or other development should determine the lawfulness of the development separately.
Aforamento and the “Token Payment” Problem
There is one of the major errors that a property purchaser can make: they pay a significant token amount without finding out the legal framework of the property.
The buyer of the property must assess in this case what type of interest is being sold, if it is a Comunidade land or aforamento.
Request copies of the documents and have them checked by other parties before paying.
It can get tricky to recover a little bit of money as a token when a future dispute arises about ownership, transfer, permissions, or the authority of the seller to sell.
The following documents are examples of what buyers should examine:
The specific documents that need to be considered will depend on the property, but a due-diligence process should include a review of:
- Historical title documents
- Aforamento-related documents
- Comunidade records
- Any previous deeds and/or transfer documents.
- Revenue records
- Survey records
- Records of mutations (where applicable),
- Encumbrance information
- Land-use records
- Property tax/due or other appropriate dues
- Court Records or Dispute Records
- Applications for development or building permits.
- Applicable planning restrictions
It’s not just about paper collection. It is to ascertain if the person on whose behalf the property is being sold possesses the legal right to transfer the interest being offered for sale and what rights the purchaser will be acquiring.
Do NOT mistake possession for ownership.
This is likely the most significant reminder.
An individual can have lived in a property for a long time.Someone can have been living in a home for many years. They may have constructed a house on it. May have paid taxes or maintained the property. They may even have documents that document the land’s history.
All of these facts should not be considered proof of unrestricted ownership.
Ownership, possession, use rights and occupancy rights are not all one and the same.
Buyers must determine the exact nature of the interest in Comunidade land and aforamento, before purchase.
The importance of legal due diligence.The significance of Legal Due Diligence.
Some of the primary factors that influence the purchase and sale of property are location, price, views, accessibility and potential for development. All this, however, should follow the determination of what’s legally being bought.
An attractive property can turn into a difficult transaction when the purchaser finds that there are restrictions that limit the ability to transfer, develop, build or use the property.
Independent legal due diligence can be useful to detect such problem areas prior to investment.
The lawyer reviewing should take the time to read the documents—and not just what was provided by the seller, broker or marketing material.
Final Thoughts
Aforamento is not just a technical term like “property” in the dictionary. It can impact the kind of rights a buyer has when buying land that’s referred to as Comunidade land in Goa.
If somebody claims that they are “selling” a property of a Comunidade, the first thing to ask is: What legal interest are they selling?
Do not pay any money without first finding out who the true owner of the land is, the rights of the person in possession, if they can be relinquished, what rights will be assigned to you, what obligations you will have and if your planned use of the land is legal.
When it comes to the legal process of a property sale, it is often more beneficial to know what is involved prior to signing, than to find out afterwards.
This article is not a legal document and should not be relied upon for legal advice. The property rights of aforamento and comunidade may be dependent on documentation and laws of a particular piece of property. It is advisable for buyers to seek independent legal counsel and document level due diligence prior to the transaction.
