6 questions answered for NRIs interested in real estate

By Guest |  07-11-19 | 
 
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Morningstar invites thought leaders from the investment community to share their insights. Views expressed are personal and should not be construed as investment advice.

Non-Resident Indians, or NRIs, can purchase residential or commercial property in India (not agricultural or plantations). Shajai Jacob, CEO – GCC (Middle East) at ANAROCK Property Consultants, answers 6 questions.

1. Can an NRI inherit property?

An NRI can inherit any immovable property in India, whether it is residential or commercial - and even agricultural land or a farmhouse (which they are otherwise not entitled to purchase). An NRI is also free to inherit property from another NRI or resident of India.

However, the RBI’s permission is necessary if the property is inherited by a citizen of a foreign state and is a resident outside India.

2. Can an NRI use a Will to bequeath property in India to someone else?

The answer is that NRIs can certainly bequeath property to their legal heir/s or any one of their choice via a Will.

3. Can an NRI gift a property?

An NRI can gift residential and commercial property to a person residing in India, or another NRI. However, if the property is agricultural land, plantation property or a farmhouse, it can only be gifted to a citizen of India residing in India.

Gifts received from relatives are not taxed - but at the time of registration, one has to pay the prevalent stamp duty and registration charges. If the gift is received on the occasion of marriage or from a registered trust, it is exempt from tax.

Relatives (as defined under the Income Tax Act) include spouse (husband or wife), sibling (brother or sister), brother or sister of the spouse, brother or sister of either of the parents and any lineal ascendant or descendant of self or spouse.

4. How must funds be repatriated from real estate investment, both for rental income and proceeds on sale?

There is no restriction on NRIs for repatriating rental income or even property sale proceeds (other than agricultural land, a farmhouse and plantation property) as long as the total proceeds are within the set limit of $1 million in a fiscal year.

The conditions are:

  • The property being sold was acquired as per the foreign exchange regulations applicable during that period.
  • The amount being repatriated cannot exceed the cost of the sale proceeds from the transaction.
  • The sale proceeds from a maximum of two residential properties can be repatriated.
  • The maximum amount of repatriated funds from a Non-Resident Ordinary (NRO) account is capped at $1 million per fiscal year.
  • Funds can be repatriated only after settling all the applicable taxes and other charges.

If the property was purchased with money received from inward remittance or debit to NRE/FCNR/NRO account, the entire principal amount can be repatriated outside India immediately while the balance must be deposited in an NRO account.

To start the repatriation process, the NRI must get a certificate from a chartered accountant in India, issued in a form called 'Form 15CB'. The form can be downloaded easily from the Indian government tax website. This form verifies that the money acquired was via legal channels and all due taxes have been paid. The CA verifies and signs the form.

The next step is to fill another form called ‘Form 15CA’ which can also be downloaded from the same website. The form must be filled and submitted online, after which a system acknowledgement number is automatically generated and displayed. The NRI must print out the filled undertaking of Form 15CA displaying the system-generated acknowledgement number and sign it.

The final step is to take the signed undertaking along with the CA certificate on Form 15CB to the bank where one has an NRO account. The concerned bank will check the forms and transfer the money abroad (up to $1 million in an FY). Apart from these forms, the bank will also ask for a copy of the sale document of the property. If the property has been inherited, the bank will ask for the Will copy, legal heir certificate, and death certificate of the person on whose death the property was inherited.

Another common doubt that NRIs who have been settled abroad for long and are out of touch with developments on the Indian real estate market have is

5. How does one verify whether an Indian property is legally compliant in all respects?

It is obviously very important for an NRI to pay attention to factors like the legitimacy of land, compliances to be followed during construction, environmental clearances, etc. at the time of a property purchase. As real estate is a state subject, laws may differ from state to state and there is, therefore, no one-size-fits-all response.

Before buying such a property, the NRI should ideally consult a lawyer to examine all the legal documents and verify their authenticity. They must also check whether the project is registered under the respective state RERA and whether or not it is fully RERA-compliant. However, many Indian states and Union Territories still do not have a functional RERA website, and this is where the services of a reputed real estate consultancy can be invaluable to save on time and effort, and ensure that all the boxes are ticked.

6. What is the jurisdiction of any dispute related to property investment in India?

It is not advisable for NRIs to file property dispute cases anywhere else other than the jurisdiction where the property is located. Only the court in that particular jurisdiction can try a property-related case.

Delays in the construction process beyond the extension period mentioned in the agreement fall under the purview of consumer courts concerning ‘deficiency in rendering of service’ under the Consumer Protection Act of 1986 if the project is not registered under state RERA. If project is registered under RERA, buyers can file a complaint against the builder under Section 31 of the regulation with the appointed regulatory authority within the respective state.

Interestingly, there may soon be a law in place in the state of Punjab to protect NRIs against property-related frauds. The state government is planning to bring the NRI Property Safeguards Act to resolve issues of NRI buyers effectively and transparently. An ombudsman for resolving issues would also be set up under the law. If this happens, it would indeed be a worthy precedent for other states to follow.

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